Loftus v. Arizona State University Public Safety Personnel Retirement System Local Board

GEMMILL, Judge,

concurring in part and dissenting in part.

¶ 23 I concur with my colleagues in affirming the trial court’s denial of the Board’s request for attorneys’ fees.

¶ 24 I respectfully dissent from my colleagues’ decision that Loftus’s teaching income from ASU should not be included in his System-eligible compensation. I conclude that Loftus’s total compensation from ASU is required under AR.S. § 38-843(C) to be included in computing his System retirement benefits.

¶ 25 As a full-time ASU police officer, Lof-tus is “regularly assigned to hazardous duty” and is a “member” of the System. See AR.S. § 38—842(24)(i) (defining eligible groups to mean certain peace officers and fire fighters who are “regularly assigned to hazardous duty,” including police officers appointed by the Arizona Board of Regents); AR.S. § 38-842(31)(a) (defining “member” as including an employee “in a group designated as eligible employees under a joinder agreement entered into by their employer ... and who is or was regularly assigned to hazardous duty”). In 1973, the Arizona Board of Regents, for and on behalf of ASU, entered into a joinder agreement with the System to establish ASU as a participating employer and allow full-time ASU police officers to be members of the System.

¶ 26 Section 38-843(C) requires that every member of the System contribute a specific percentage of his “compensation” from the participating employer to the System:

Each member, throughout the member’s period of service from the member’s effective date of participation, shall contribute to the fund an amount equal to 7.65 per cent of the member’s compensation.

(Emphasis added.) The term “compensation” is defined, “for the purpose of computing retirement benefits,” as including “base salary.” AR.S. § 38-842(12). “Base salary” is defined as “the amount of compensation each employee is regularly paid for personal services rendered to an employer." Id. (emphasis added). Although a “member” of the System must have a full-time job in which he is “regularly assigned to hazardous duty,” the statutory definition of “base salary” is not limited to income from specific tasks or jobs that are hazardous. In my view, we should not add to “base salary” a limitation that is not stated in the statutes.

¶ 27 The income Loftus receives from his part-time teaching position at ASU is “compensation” under AR.S. § 38-842(12) because it is “regularly paid” to him “for personal services” rendered to ASU. Id. “Regularly paid” is not defined in the pertinent statutes. When a word or phrase in a statute is undefined, we must give the words their ordinary meanings, unless the context clearly indicates that a special *223meaning was intended. A.R.S. § 1-213 (2002); Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 541, ¶ 27, 48 P.3d 485, 491 (App.2002). The phrase “regularly paid” in this statute means payments made consistently, frequently, and at uniform intervals.10 Loftus received compensation for both his full-time police officer position and his part-time teaching position in the same checks at the same semimonthly payroll intervals. The fact that his full-time position was year round and his part-time position existed for periods of several months at a time does not mean that his income from both was not “regularly paid” at consistent, frequent, and uniform intervals. Additionally, Loftus’s teaching constituted “personal services” and his participating public safety employer was the Arizona Board of Regents, for and on behalf of ASU, not simply the ASU police department. His income from teaching was therefore part of his “compensation” from his participating employer.

¶ 28 Because his income from his services as a police officer and his services as a teacher constitute his compensation from ASU, A.R.S. § 38-843(C) requires that he contribute a specified portion of his total compensation to the System. No choice is permitted here. These statutes do not provide an exception for compensation earned by a System member for additional personal services rendered to the System employer in a “second job.”

¶ 29 If Loftus was working as a part-time teacher for ASU and not also working as a full-time police officer for ASU, his teaching income would not qualify for participation in the System. Similarly, if he was teaching at Phoenix College or some other educational institution instead of ASU, his teaching income would not qualify for the System. Based solely on his capacity as a teacher, he is not “regularly assigned to hazardous duty.” But because he is a full-time peace officer with the ASU police department, he is “regularly assigned to hazardous duty” even though he is actually performing the hazardous duty only when on the job as a police officer. When he is teaching at ASU or sleeping at home or otherwise “off duty,” he may not be engaging in hazardous duty but he remains at all times “regularly assigned to hazardous duty.”

¶ 30 The Board has argued, and my colleagues in the majority opinion have concluded, that the legislature probably did not intend that income from Loftus’s “second job” for ASU be included in his System compensation. Their analysis of the legislative intent may be correct. But it is the statutory language the legislature enacted that should control here, not what we may think they intended or meant to enact. See New Sun Bus. Park, LLC v. Yuma County, 221 Ariz. 43, 46, ¶ 12, 209 P.3d 179, 182 (App.2009) (the plain language of statutes is “the most reliable indicator” of their meaning). When the plain meaning and application of statutes can be ascertained from the statutory language, we must apply that meaning instead of resorting to analysis of legislative intent. See New Sun, 221 Ariz. at 47, ¶ 16, 209 P.3d at 183 (“[W]e are ‘not at liberty to rewrite statutes under the guise of judicial interpretation.’ ”) (quoting State v. Patchin, 125 Ariz. 501, 502, 610 P.2d 1062, 1063 (App.1980)); Prince & Princess Enters., LLC v. State ex rel. Ariz. Dep’t of Health Servs., 221 Ariz. 5, 6, ¶ 5, 209 P.3d 141, 142 (App.2008) (there is usually no occasion for resorting to statutory interpretation when the language is clear and unambiguous). I respectfully disagree with my colleagues in the majority when they conclude that these statutes are ambiguous. See supra ¶ 9. My conclusion is that these statutes are clear and must be applied straightforwardly to the facts of this situation. Upon doing so, Loftus’s compensation “for the purpose of computing retirement *224benefits” includes his total income from ASU. See A.R.S. §§ 38-842(12), -843(C). If this result is not what the legislature intended, the appropriate remedy lies with the legislature, not the courts.

¶ 31 For these reasons, I would reverse with appropriate instructions to require Lof-tus’s teaching income from ASU to be included in his System compensation.

. In determining the ordinary meaning, we will consider respected dictionary definitions. Urias v. PCS Health Sys., Inc., 211 Ariz. 81, 85, ¶ 22, 118 P.3d 29, 33 (App.2005). See Merriam-Webster’s Online Dictionary, http://www.merriamwebster.com/dictionary/regularly (last visited April 7, 2011) (defining "regularly” as “in a regular manner” or “on a regular basis” or "at regular intervals”); see generally The New Oxford American Dictionary 1427 (2d ed. 2005) (defining "regular” as "recurring at short uniform intervals” and "done or happening frequently”); see also Black’s Law Dictionary 767 (7th ed. 1999) (defining "regular income” as "[¡Income that is received at fixed or specified intervals”).