Kennedy v. South Carolina Retirement System

*355BURNETT, Justice

(concurring in part and dissenting in part):

I concur with Parts II and III of the majority opinion.18 However, I respectfully dissent from Part I of the opinion.

The dispute in this case concerns the General Assembly’s 1986 amendment to the definition of “average final compensation” for State employee retirement purposes found in South Carolina Code Ann. § 9-1-10(17) (Supp.1999).19 See Act. No. 540, Part II, § 25A, 1986 Acts 4897.20 More particularly, the dispute concerns the amendment’s effect on the calculation of the value of unused annual leave.

Prior to 1978, § 9-1-10(17) defined “average final compensation” as follows:

(17) “Average final compensation” with respect to those members retiring on or after July 1, 1970, shall mean the average annual earnable compensation of a member during the three consecutive fiscal years of his creditable service producing the highest average.

Even though the statute did not refer to accrued unused annual leave, the South Carolina Retirement System credited retiring employees with all accrued unused annual leave when calculating the average final compensation for retirement benefits. There was no limit on the amount of accrued annual leave for which an employee could receive credit.21

*356In 1978, the General Assembly amended § 9-1-10(17), to provide, in relevant part, as follows:

(17) “Average final compensation” with respect to those members retiring on or after July 1, 1970, shall mean the average annual earnable compensation of a member during the three consecutive fiscal years of his creditable service producing the highest such average; an amount up to and including forty-five days termination pay for unused annual leave may be added to the pay period immediately prior to retirement and included in the average as applicable.... 22

See Act No. 408,1978 Acts 1295.

The 1978 amendment altered the definition of “average final compensation” by limiting the creditable accrued unused annual leave to forty-five days. In addition, it included the annual leave credit in a retiree’s average final compensation only if the pay period immediately prior to retirement was within the employee’s three highest consecutive fiscal years. As a result of the 1978 amendment, employees generally retired on the last day of their last fiscal year to ensure receipt of credit for any accrued unused annual leave in their average final compensation. The number of employees who retired at the end of the fiscal year produced administrative difficulties for the Retirement System.

In 1986, the General Assembly again amended the definition of “average final compensation.” The 1986 amendment provides:

(17) “Average final compensation” with respect to those members retiring on or after July 1, 1986, means the average annual earnable compensation of a member during the twelve consecutive quarters of his creditable service on which regular contributions as a member were made to the System producing the highest such average; a quarter means a period January through March, April through June, July through September, or October through December. An amount up to and including forty-five days’ termination pay for unused annual leave at retirement may be added to the average final compensation.... 23

*357The parties agree the 1986 amendment changed the definition of average final compensation by using the average earnable compensation during the twelve highest consecutive quarters, rather than the three highest consecutive years, in calculating average final compensation. This amendment allowed employees to retire at the end of a quarter without losing credit for accrued unused annual leave, instead of at the end of the fiscal year. The amendment alleviated the Retirement System’s burden of servicing the bulk of employees who retired at the end of the fiscal year.

The parties disagree, however, as to whether the 1986 amendment also changed the method of including accrued unused annual leave in the average final compensation. The Retirement System asserts the amendment did not change the method. According to the Retirement System, pursuant to the 1986 amendment, the value of any unused annual leave is added to the highest consecutive twelve quarters before averaging to determine the average final compensation. Employees, on the other hand, claim the 1986 amendment provides that the value of any unused annual leave is added to the average final compensation after the average is taken. I agree with Employees.

“[W]here a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself.” Charleston County Parents for Public Schools, Inc. v. Moseley, 343 S.C. 509, 515, 541 S.E.2d 533, 536 (2001). “If a statute’s language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning.” Paschal v. State Election Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995).

In my opinion, § 9-1-10(17) is unambiguous. The statute clearly states the value of up to forty-five days unused annual leave “may be added to the average final compensation.” (Emphasis added). This language clearly provides that annual leave value is added to the average final compensation, not included in the average. Because § 9-1-10(17) is clear on its face, there is no reason for the court to apply the rules of *358statutory construction and “the court has no right to look for or impose another meaning.” Id.

In any event, even if the language of the 1986 amendment is considered ambiguous, by construing the statute as providing that the value of unused annual leave is included in the average final compensation, it is my opinion the majority misapprehends the legislature’s intent. I hold this view for several reasons.

First, a comparison of the language in § 9-1-10(17) before and after the 1986 amendment supports the conclusion that the General Assembly intended to change the method for incorporating unused annual leave in retirement benefits. The 1978 statute specifically provides that unused annual leave may be “added to the pay period immediately prior to retirement and included in the average ... ”. (Emphasis added). The 1986 amendment, instead, states the unused annual leave may be “added to the average final compensation ... ”. (Emphasis added). These obvious textual differences support the conclusion the General Assembly intended to change the method of crediting employees’ unused annual leave in the average final compensation. See Vernon v. Harleysville Mut. Cas. Co., 244 S.C. 152, 135 S.E.2d 841 (1964) (it will be presumed in adopting an amendment to a statute that the Legislature intended to make some change in the existing law). If the General Assembly did not intend to change the method of crediting employees with unused annual leave, it could have simply modified the language of the 1978 statute and stated “an amount up to and including forty-five days termination pay for unused annual leave may be added to the highest annual earnable compensation and included in the average.” The majority’s interpretation of the 1986 amendment renders the significant change to the definition of average final compensation a nullity. See State ex rel. McLeod v. Montgomery, 244 S.C. 308, 136 S.E.2d 778 (1964) (in seeking intention of legislature, Court must presume General Assembly intended by its action to accomplish something and not to do a futile thing).

Second, contrary to the majority’s assertion, this Court has never considered the extent of legislative history and debate on a proposed statutory amendment as a factor in interpreting *359an ambiguous statute.24 However, if the extent of legislative history and debate were a factor, then the limited amount of floor debate on § 9-1-10 suggests there was little, if any, controversy surrounding its enactment.

Third, this Court has never held that the title of a bill is a factor used in determining legislative intent behind a statutory enactment.25 Accordingly, the fact that the title to the 1986 Appropriations Act does not mention an increase in retirement benefits does not assist the Court in construing the 1986 amendment.

Instead, South Carolina Constitution Article III, § 17 requires that the title of a legislative act serve as notice of its general subject.26 The purpose of this constitutional provision is to prevent the General Assembly from being misled into the passage of bills containing provisions not indicated in their titles and to apprize the citizens of the subject of proposed legislation, thereby giving them an opportunity to be heard. Hercules, Inc. v. South Carolina Tax Comm’n, 274 S.C. 137, 262 S.E.2d 45 (1980); Colonial Life & Accident Ins. Co. v. South Carolina Tax Comm’n, 233 S.C. 129, 103 S.E.2d 908 (1958), superseded on other grounds I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). The Court has repeatedly held that “[t]he title of an act need not be a complete index of its contents. The constitutional mandate is satisfied where the title states the general subject, and the provisions in the body of the act are germane thereto and *360provide the means, methods, or instrumentalities for the accomplishment of the general purpose.” Hercules, Inc. v. South Carolina Tax Comm’n, supra, 274 S.C. at 141, 262 S.E.2d at 47; see also Colonial Life & Accident Ins. Co. v. South Carolina Tax Comm’n, supra; McCollum v. Snipes, 213 S.C. 254, 49 S.E.2d 12 (1948).

Here, the title of the 1986 Appropriations Act provides:

TO AMEND SECTIONS 9-1-10 AND 9-11-10 OF THE 1976 CODE, RELATING TO THE SOUTH CAROLINA RETIREMENT SYSTEM AND THE SOUTH CAROLINA POLICE OFFICERS’ RETIREMENT SYSTEM, SO AS TO CHANGE THE DEFINITION OF AVERAGE FINAL COMPENSATION FROM AVERAGE ANNUAL EARNABLE COMPENSATION OF A MEMBER DURING THREE CONSECUTIVE FISCAL YEARS TO TWELVE CONSECUTIVE QUARTERS.

The title of the 1986 Appropriations Act refers to amending § 9-1-10 so as to change the definition of average final compensation. Since the title covers the general subject, the definition of average final compensation contained in § 9-1-10, the statute complies with article III, § 17, and is constitutionally sufficient.

Fourth, the Court has never used the lack of a fiscal impact statement as a factor in statutory interpretation. Moreover, South Carolina Code Ann. § 2-7-72 (Supp.2000) requires the principal author of a bill to submit an estimated fiscal impact statement whenever a bill or resolution necessitating the expenditure of funds is introduced in the General Assembly.27 As the majority opinion correctly notes, testimony from the principal author of the 1986 amendment is inadmissible evidence of legislative intent. Similarly, the failure of the principal author to submit a fiscal impact statement is not evidence of the General Assembly’s intent in amending a statute.

Finally, like the majority, I am also concerned about the fiscal impact of the 1986 amendment on the financial stability of the Retirement System and the State’s creditworthiness. However, I question whether adoption of the Employees’ *361interpretation leaves the Retirement System in the dire financial condition predicted by the Retirement System.

As I read the trial record, the Retirement System’s actuary testified the Employees’ interpretation of § 9-1-10(17) produces a $1,177 billion unfunded liability if all current retirees and all current active State employees are included in the estimate. This number assumes that all current State employees will remain employed by the State until their retirement, a fact that is highly unlikely. Applying the Employees’ interpretation of § 9-1-10(17) solely to current retirees, however, produces a liability of approximately one-fourth the actuary’s estimate.

I would hold the language of the 1986 amendment plainly requires that unused annual leave of up to forty-five days may be added to the average produced by the retiree’s twelve highest consecutive quarters. Accordingly, I respectfully dissent from Part I of the majority opinion.

. In addition, I would adhere to the Court's original opinion on the issues of class certification and the statute of limitations. Kennedy v. South Carolina Retirement Sys., 345 S.C. 339, 549 S.E.2d 243 (Sup.Ct. 2000).

. The definition of "average final compensation” now appears at § 9-1-10(4) (Supp.2000).

. The General Assembly also amended a similar provision applicable to the Police Officers’ Retirement System. S.C.Code Ann. § 9 — 11— 10(14) (Supp.1999). Like the majority, I will only discuss the effect of the amendment on § 9-1-10(17). My opinion, however, applies equally to § 9-11-10(14). I note the definition of "average final compensation” now appears at§ 9-11-10(7) (Supp.2000).

. The Retirement System followed this policy since its inception in 1945.

. The bold type indicates the changes relevant to this discussion.

. The bold type indicates the changes relevant to this discussion.

. The majority suggests the Court relied on the lack of legislative history as a factor in interpreting a statute in Robertson v. State, 276 S.C. 356, 278 S.E.2d 770 (1981). In Robertson, the Court did not hold the extent of legislative debate is a method of statutory construction. Instead, it stated the legislative history behind the amended statute did not reveal the General Assembly’s purpose for the amendment.

. Contrary to the majority’s claim, Whetstone v. South Carolina Dept. of Highways and Public Transp., 272 S.C. 324, 252 S.E.2d 35 (1979), does not hold the title of a bill is used to interpret the meaning of an ambiguous statute. In Whetstone, the Court simply held that the title of the bill supported its previous interpretation of a statute. The Court did not use the title of the bill to determine legislative intent.

. "Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.” S.C. Const. art. III, § 17.

. Thereafter, if the legislative committee’s estimate is substantially different from the original estimate, the committee must attach its statement of the bill’s estimated fiscal impact.