Wiggs v. Edgecombe County

GEER, Judge,

dissenting.

The majority opinion overlooks the “well-established principle that municipalities, as creatures of the State, can exercise only that power which the legislature has conferred upon them.” Bowers v. City of High Point, 339 N.C. 413, 417, 451 S.E.2d 284, 287 (1994). *56Because of this principle, “[a] contract made by a municipality beyond its power is unenforceable.” Id., 451 S.E.2d at 288. The Supreme- Court in Bowers, while construing precisely the statutes at issue in this case, stressed: “The issue thus becomes whether the legislature authorized the city to enter contracts for separation allowances” containing the terms that the plaintiffs were suing to enforce. Id. at 418, 451 S.E.2d at 288.

Accordingly, under Bowers, the majority opinion’s conclusion that plaintiff had a vested contractual right to the special separation allowance skips over a critical fundamental question: whether the General Assembly has authorized a contract in which a local law enforcement officer could continue to receive the allowance although re-employed by another local governmental body. The majority opinion holds, without any analysis of legislative intent, “that North Carolina General Statutes, section 143-166.42 creates the option and affirmative duty for counties to enact a resolution in advance of a law enforcement officer’s re-employment in order to comply with the provisions of North Carolina General Statutes, section 143-166.41(c).”

I believe that principles of statutory construction indicate that the General Assembly intended, when enacting N.C. Gen. Stat. § 143-166.42 (2005), to terminate a local law enforcement officer’s special separation allowance upon that officer’s re-employment by another employer participating in the North Carolina Local Governmental Employees’ Retirement System (“Local Government Retirement System”). As a result, a county would not be authorized to enter into any contract with an officer in which the special separation allowance would continue despite re-employment. Without such authorization, Mr. Wiggs could have no contractual right, vested or otherwise, to such an allowance upon re-employment. Based on my construction of the statute, I would reverse the trial court’s grant of summary judgment and, therefore, respectfully dissent.

N.C. Gen. Stat. § 143-166.41 (2005) provides for a special separation allowance for law enforcement officers employed by “a State department, agency, or institution” upon the officer’s meeting certain requirements. N.C. Gen. Stat. § 143-166.41(c) sets out events that will result in cessation of the payment of that allowance, including the following:

(c) Payment to a retired officer under the provisions of this section shall cease at the first of:
*57(3) The first day of reemployment by any State department, agency, or institution, except that this subdivision does not apply to an officer returning to State employment in a position exempt from the State Personnel Act in an agency other than the agency from which that officer retired.

N.C. Gen. Stat. § 143-166.41(c).

In 1986, the General Assembly passed legislation making this special separation allowance available to certain local law enforcement officers. N.C. Gen. Stat. § 143-166.42. The legislature did not set out all the specifications regarding that allowance, but simply referenced N.C. Gen. Stat. § 143-166.41:

On and after January 1, 1987, the provisions of G.S. 143-166.41 shall apply to all eligible law-enforcement officers as defined by G.S. 128-21(llb) or G.S. 143-166.50(a)(3) who are employed by local government employers, except as may be provided by this section. As to the applicability of the provisions of G.S. 143-166.41 to locally employed officers, the governing body for each unit of local government shall be responsible for making determinations of eligibility for their local officers retired under the provisions of G.S. 128-27(a) and for making payments to their eligible officers under the same terms and conditions, other than the source of payment, as apply to each State department, agency, or institution in payments to State officers according to the provisions of G.S. 143-166.41.

N.C. Gen. Stat. § 143-166.42 (emphasis added).

The critical task for this Court on this appeal is to determine what the General Assembly intended by the phrase “under the same terms and conditions ... as apply to each State department, agency, or institution.” Id. The majority opinion construes “the plain language” of the statute to authorize a broad exercise of discretion because the statute permits a county to make “determinations of eligibility for their local officers.” Id. Our Supreme Court has, however, construed this same language as only making local governments “responsible for certain aspects of administering the separation allowance,” Bowers, 339 N.C. at 419, 451 S.E.2d at 288 (emphasis added). This administrative role does not, according to our Supreme Court, grant local governments discretion to alter the terms and conditions applicable to *58the payment of the allowance. Id., 451 S.E.2d at 289. The majority opinion has thus, contrary to Bowers and principles of statutory construction, effectively deleted from the statute the mandatory language that local government is responsible “for making payments to their eligible officers under the same terms and conditions, other than the source of payment, as apply to each State department, agency, or institutions in payments to State officers according to the provisions of G.S. 143-166.41.” N.C. Gen. Stat. § 143-166.42 (emphasis added).

There is no dispute that N.C. Gen. Stat. § 143-166.41(c)’s provisions regarding cessation of payment of the allowance represent “terms and conditions” of payment. The majority opinion effectively assumes that the General Assembly intended that the literal language of that subsection apply to the local governmental officers such that a local officer’s special allowance would terminate upon employment by the State — even though the officer had never before worked for the State and was not drawing a State retirement — but would not terminate upon his commencing employment with another local governmental entity who was participating in the Local Government Retirement System that was paying the officer’s retirement. I cannot agree: such a construction of the statute does not make practical sense and is not consistent with other provisions relating to the Local Government Retirement System.

“In interpreting a statute, the Court must first ascertain the legislative intent in enacting the legislation.” O&M Indus. v. Smith Eng’g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). Initially, we turn to the words chosen by the legislature and “[w]hen the words are clear and unambiguous, they are to be given their plain and ordinary meanings.” Id. at 268, 624 S.E.2d at 348. When, however, “a statute is ambiguous, judicial construction must be used to ascertain the legislative will.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990). In doing so, an appellate court should “consider the policy objectives prompting passage of the statute and should avoid a construction which defeats or impairs the purpose of the statute.” O&M Indus., 360 N.C. at 268, 624 S.E.2d at 348. See also Burgess, 326 N.C. at 215, 388 S.E.2d at 140 (“ ‘A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.’ ” (quoting State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 295 (1975)). I believe the language of N.C. Gen. Stat. § 143-166.42 is ambiguous and requires judicial construction.

*59In Bowers, 339 N.C. at 419, 451 S.E.2d at 289, our Supreme Court held that the purpose of N.C. Gen. Stat. §§ 143-166.41 and 143-166.42 “was to encourage early retirement.” To construe § 143-166.42 as permitting a local law enforcement officer to retire under the Local Government Retirement System and draw the special separation allowance, but then return to work for another employer participating in that Retirement System is inconsistent with that purpose. To give effect to the legislature’s purpose, I believe that § 143-166.42 should be construed as substituting “employer participating in the North Carolina Local Governmental Employees’ Retirement System” for “State department, agency, or institution” in N.C. Gen. Stat. § 143-166.41.

This construction is consistent with other provisions relating to the Local Government Retirement System. “It is well established that ‘[w]hen multiple statutes address a single matter or subject, they must be construed together, in pari materia, to determine the legislature’s intent.’ ” Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 672, 518 S.E.2d 772, 775 (quoting Taylor v. City of Lenoir, 129 N.C. App. 174, 178, 497 S.E.2d 715, 719 (1998)), disc. review denied, 351 N.C. 122, 541 S.E.2d 472 (1999).

The local officer special allowance provision, N.C. Gen. Stat. § 143-166.42, applies “to all eligible law-enforcement officers as defined by G.S. 128-21(1 lb) or G.S. 143-166.50(a)(3) who are employed by local government employers.” N.C. Gen. Stat. § 128-21(llb) (2005) refers to officers participating in the Local Government Retirement System.3 N.C. Gen. Stat. § 128-24(5a) (2005) provides that law enforcement officers participating in the Local Government Retirement System after 1 January 1986 are subject to N.C. Gen. Stat. § 128-24(5)(c) and (d). N.C. Gen. Stat. § 128-24(5) (c) and (d) in turn specify:

c. Should a beneficiary who retired on an early or service retirement allowance be reemployed, or otherwise engaged to perform services, by an employer participating in the Retirement System on a part-time, temporary, interim, or on fee-for-service basis, whether contractual or otherwise, and if such beneficiary earns an amount during the 12-month period immediately following the effective date of retirement or in *60any calendar year which exceeds fifty percent (50%) of the reported compensation, excluding terminal payments, during the 12 months of service preceding the effective date of retirement, or twenty thousand dollars ($20,000), whichever is greater, as hereinafter indexed, then the retirement allowance shall be suspended as of the first day of the month following the month in which the reemployment earnings exceed the amount above, for the balance of the calendar year. ....
d. Should a beneficiary who retired on an early or service retirement allowance be restored to service as an employee, then the retirement allowance shall cease as of the first day of the month following the month in which the beneficiary is restored to service and the beneficiary shall become a member of the Retirement System and shall contribute thereafter as allowed by law at the uniform contribution payable by all members.

(Emphasis added.) “Service” is defined as service by a person regularly employed by an employer subject to Article 3 of Chapter 128, which sets out the retirement system for counties, cities, and towns. N.C. Gen. Stat. § 128-21(22). N.C. Gen. Stat. § 128-23(g) (2005) further specifies that “any employer . . . who employs law enforcement officers transferred from the Law Enforcement Officers’ Retirement System to this Retirement System on January 1,1986, or who employs law enforcement officers electing to become members of this Retirement System on and after January 1, 1986, shall be employers participating in this Retirement System as this participation pertains to their law enforcement officers.”

Therefore, a law enforcement officer participating in the Local Government Retirement System who takes an early or service retirement will have his retirement allowance suspended or ceased when he returns to employment with another employer participating in the Retirement System.4 Under the principle of construing statutes involving the same subject — here, the retirement of law enforcement officers — in pari materia, the plain language of N.C. Gen. Stat. § 128-24 is persuasive evidence that N.C. Gen. Stat. § 143-166.42 should be construed to cause the special separation allowance to cease upon the officer’s employment with another employer participating in the Local Government Retirement System.

*61I can conceive of no reason that retirement benefits should cease upon re-employment with another employer participating in the Local Government Retirement System, but the special, early retirement allowance should not. Further, it makes no sense that the allowance would terminate upon employment with the State when the State has nothing to do with the funding of that allowance. See 1985 N.C. Sess. Laws ch. 1019 (indicating that the special separation allowance was made applicable to local officers because the General Assembly had authorized increases in the sales tax under which local governments would raise over $350,000,000 annually).

In sum, I believe that when the General Assembly provided that the special separation allowance should be paid to local officers “under the same terms and conditions” applicable to State officers, it intended for the allowance to cease upon re-employment with another employer participating in the Local Government Retirement System and not upon employment with a State employer. Accordingly, Edgecombe County’s resolution was immaterial — it simply reiterated the law already applicable to Mr. Wiggs on the date he retired. I would, therefore, reverse the trial court’s entry of summary judgment in favor of Mr. Wiggs.

. N.C. Gen. Stat. § 143-166.50 (2005), also referenced by N.C. Gen. Stat. § 143-166.42, sets out retirement provisions for local governmental law enforcement officers, but specifies- that on or after 1 January 1986, those officers shall be members of the Local Government Retirement System.

. N.C. Gen. Stat. § 128-24(5a) permits a local law enforcement officer to draw retirement while working for another local governmental entity only if he both retired and was reemployed prior to 1 January 1986.