Stout v. Board of Trustees of the Employees' Retirement System, State of Hawaii.

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Electronically Filed
Supreme Court
SCAP-15-0000582
10-JUL-2017
08:07 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

ROSEMARY H. STOUT, Appellant-Appellant,

vs.

BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM,
STATE OF HAWAIʻI, Appellee-Appellee.
________________________________________________________________

SCAP-15-0000582

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-15-0000582; CIV. NO. 14-1-2428-11)

JULY 10, 2017

RECKTENWALD, C.J., McKENNA, POLLACK, WILSON, JJ.,
WITH NAKAYAMA, J., DISSENTING

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case concerns whether a public school teacher who is a

member of the Employees’ Retirement System of the State of

Hawaiʻi (“ERS”) through her regular full-time position is

eligible for “service-connected disability retirement” benefits
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under HRS § 88-79 (Supp. 2004) after being shot in the chest

while serving as a public summer school teacher, which is a

position that, when held on its own, does not provide ERS

membership eligibility. Rosemary H. Stout (“Stout”), a regular

school year teacher employed by the State of Hawaiʻi Department

of Education (“DOE”), applied for benefits under HRS § 88-79 on

August 3, 2004 based on injuries suffered as a result of a June

30, 1988 shooting. Despite a determination by the Medical Board

to the ERS (“Medical Board”) that Stout was incapacitated from

teaching due to the shooting, on October 27, 2014, the Board of

Trustees of the ERS (“ERS Board”) issued a Final Decision

denying Stout’s application on the threshold basis that although

she was an ERS member, she was not entitled to “service-

connected disability retirement” under HRS § 88-79 because the

shooting occurred while she served as a part-time summer school

teacher, which was not employment that qualified for ERS

membership.

On July 28, 2015, the Circuit Court of the First Circuit

(“circuit court”)1 affirmed the ERS Board and entered Final

Judgment. Stout timely appealed to the Intermediate Court of

Appeals (“ICA”). This court accepted a transfer of this case

from the ICA.

1
The Hon. Rhonda A. Nishimura presiding.

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We hold that Stout is eligible for “service-connected

disability retirement” under applicable law. HRS § 88-79

provides that an ERS member may be retired by the ERS for

“service-connected disability retirement” if she is “permanently

incapacitated for duty as the natural and proximate result of an

accident occurring while in the actual performance of duty at

some definite time and place . . . .” The issue is whether

Stout’s injury is “service-connected.” HRS § 88-21 (Supp. 2004)

defines “service” to include any “service as an employee paid by

the State or county,” and contains additional language

indicating that “connected” service includes non-ERS-membership

State or county service, as long as the member makes ERS

contributions during the time of such non-ERS-membership State

or county service. Stout was making ERS contributions on June

30, 1988. HRS § 88-21 also separately defines “membership

service” as “all service rendered by a member for which the

member had made the required contributions to the system.”

Therefore, although Stout’s summer school employment at ʻAiea

High School was not “membership service,” it was nevertheless

“service,” and HRS § 88-79 provides for “service-connected

disability retirement,” not “membership service-connected

disability retirement.” Accordingly, under HRS § 88-79, Stout

is eligible to apply for “service-connected disability

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benefits.” This conclusion is also supported by legislative

history and the statutory scheme of HRS Chapter 88.

We therefore vacate the judgment of the circuit court and

remand this case to the ERS Board for further proceedings

consistent with this opinion.

II. Background

A. Stout’s Employment and ERS Membership History

Stout first began working for the DOE in the early 1980s,

teaching at various locations including Waialua Intermediate and

High School, ʻAiea Intermediate School, and on Kauaʻi. Stout

became tenured in 1985. During the 1987 to 1988 academic year,

Stout taught at Radford High School (“Radford”). During the

summers of 1985 through 1988, the DOE offered a summer school

program to students at ʻAiea High School (“ʻAiea”) and employed

Stout each summer to teach an English class there.

By 1984, Stout was a member of ERS. She contributed to the

ERS fund year-round through deductions taken from her academic-

year salary, which was paid by the DOE over the course of twelve

months. Stout’s summer school earnings were paid by the DOE

based on an hourly rate by way of separate checks. No

deductions from summer school earnings were made for ERS

contributions.

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B. Stout’s Injury: the June 30, 1988 Shooting

Stout was shot on June 30, 1988 by Romel Castro (“Castro”)

— a then-eighteen-year-old student of Stout’s — while she was

teaching summer school at ʻAiea. See Tradewind Ins. Co. v.

Stout, 85 Hawaiʻi 177, 181, 938 P.2d 1196, 1200 (App. 1997)

(stating facts elicited at Castro’s criminal trial). On

February 2, 1990, Castro was convicted of attempted second

degree murder and a firearms violation. See id. He was

sentenced to life imprisonment with the possibility of parole.

See id.

C. Application for Benefits to the ERS Board

Stout filed an “Application for Disability Retirement

Contributory Plan” (“Application”) with the ERS Board on August

3, 2004, requesting “service-connected disability retirement.”

She indicated that the accident which caused her disability was

“shot by student in chest” on June 30, 1988 at ʻAiea High School.

On October 4, 2004, an “Employer’s Statement Concerning

Service-connected Disability” was completed by the DOE.

Specifically, the DOE identified itself as, “Department of

Education – Radford High School,” and declared that it did not

employ Stout on the date of the shooting, and that it lacked

records of any accident. Despite this, the “Department of

Education – Radford High School” stated the place of Stout’s

accident as “Aiea High School – Summer Session,” Stout’s work
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performed as “language arts teacher – Summer Session at Aiea

High School,” and that Stout was “‘on duty’ at the time of the

accident . . . at Aiea High School.”

The Medical Board of the ERS interviewed Stout and reviewed

her Application and various employment and medical records,

including the October 2004 statement from “Department of

Education – Radford High School.” It issued a report dated

February 17, 2006, finding that Stout was occupationally

incapacitated, likely permanently, due to psychiatric conditions

which precluded a return to work as a teacher, but that evidence

did not show that she was incapacitated for gainful employment

in other occupations. The Medical Board further found the June

30, 1998 shooting to have been an “accident” that was the

“natural and proximate cause” of Stout’s incapacitation, and

that the accident occurred when Stout was “in the actual

performance of duty at some definite time and place.” The

Medical Board determined that Stout’s incapacity was not the

result of her “willful negligence,” which would preclude

recovery under HRS § 88-79. The Medical Board ultimately

recommended that Stout be granted “Service-Connected

Occupational Disability Retirement,”2 but that her request for

“Service-Connected Total Disability Retirement” be denied.

2
“Upon retirement for service-connected disability, a member shall receive
the amount of the member’s accumulated contributions and a retirement
(continued . . .)
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HRS § 88-79 permits the ERS Board to accept as conclusive

the Medical Board’s finding that Stout’s “disability [wa]s the

result of an accident occurring while in the actual performance

of duty at some definite time and place and that the disability

was not the result of wilful negligence on [Stout’s] part,” and

approve the member’s eligibility for a service-connected

disability retirement benefit. HRS § 88-79(d)(2).3 Here,

however, after reviewing the Medical Board’s report, the ERS

Board issued an April 19, 2006 “Order Remanding Report to

Medical Board,” indicating that in its view, Stout was not

entitled to benefits:
4
[S]ection 88-42.5,[ ] Hawaii Revises [sic] Statutes, and
5
section 6-21-14(2),[ ] Hawaii Administrative Rules, exclude

(. . . continued)
allowance which shall consist of fifty per cent of the member’s average final
compensation.” HRS § 88-80 (Supp. 2004).
3
The board may determine whether or not the disability is
the result of an accident occurring while in the actual
performance of duty at some definite time and place and
that the disability was not the result of wilful negligence
on the part of the member. The board may accept as
conclusive:
(1) The certification made by the head of the agency
in which the member is employed; or
(2) A finding to this effect by the medical board.

HRS § 88-79(d).
4
Membership of employees holding more than one
position, appointment, or office. (a) The membership of
any employee holding more than one full-time position,
appointment, office, or any combination thereof shall be
limited to the position, appointment, or office of the
employee’s option; provided that the employment in the
position, appointment, or office shall meet the minimum
membership eligibility requirements as provided in this
part. Any contributions made based on the compensation,
pay, or salary of the employee’s position, appointment, or
(continued . . .)
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teaching summer school from a public school teacher’s
Employees’ Retirement System membership. An accident
resulting in injury to a public school teacher while the
teacher is teaching summer school is therefore not “an
accident occurring while in the actual performance of duty”
under sections 88-77 and 88-79, Hawaii Revised Statutes.

On this basis, the ERS Board remanded the report to the Medical

Board for further proceedings.

The chair of the Medical Board, Patricia L. Chinn, M.D.,

J.D. (“Dr. Chinn”), issued a memorandum dated May 19, 2006,

acknowledging the ERS Board’s Order Remanding Report to Medical

Board. Dr. Chinn continued, however:

The Medical Board respectfully declines to revise its
recommendation. The Medical Board does not believe it has
sufficient information concerning this Member’s employment
status and is unfamiliar with and has no expertise on the
requirements concerning membership. It also appears to the
Medical Board that this case involves an interpretation of
the statute and rule regarding the exclusion from
membership and the performance of duty, an interpretation
that is best left to the Trustees.

(. . . continued)
office other than that on which the employee's membership
is based shall be returned to the employee.
The foregoing shall not apply to any employee holding
two part-time positions of the same class if each position
meets the minimum eligibility requirements for membership,
and the sum total of the compensation, pay, or salary
received for both positions does not exceed the higher of
the full-time compensation, pay, or salary for either
position.

HRS § 88-42.5 (Supp. 2003).
5
Employees excluded from membership. The following classes
of employees shall be excluded from membership in the
system: . . . ; (2) Persons employed on short-term or
temporary appointments of three months or less; (3) Persons
employed as substitute teachers; . . . ; (5) Persons in any
position requiring less than one-half or fulltime
employment . . . .

HAR § 6-21-14.

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Dr. Chinn issued a follow-up memorandum on July 15, 2007 adding:

“The only possibility of granting the Member benefits [on the

basis of the June 30 shooting] is if she is considered a member

for the purposes of qualifying for retirement benefits but not

for the purpose of service credit while teaching summer school.

We believe this is a matter for the Board to decide.”

An ERS administrator, David Shimabukuro, subsequently

issued an October 9, 2007 memo to the ERS Board that echoed the

ERS Board’s interpretation of HRS § 88-42.5 and HAR § 6-21-

14(2). He concluded:

[ERS] Staff therefore believes that services rendered in a
position that is excluded from ERS membership should not be
considered “an accident occurring while in the actual
performance of duty” for the purposes of determining an
individual’s eligibility for accidental disability benefits
and recommends that the Board deny Ms. Stout’s applications
for service-connected occupational and total disability
retirement benefits.

Subsequently, a letter was issued to Stout on October 11, 2007

indicating the ERS Board’s preliminary determination to deny her

application for both service-connected occupational disability

retirement benefits and service-connected total disability

retirement benefits. The letter acknowledged that the ERS Board

proposed to approve and accept the certifications, findings, and

recommendations contained in the Report, except for the Medical

Board’s finding that Stout’s disability was the “result of an

accident occurring while in the actual performance of duty.”

The ERS Board opined that an accident incurred by a public

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school teacher while teaching summer school is not “an accident

occurring while in the actual performance of . . . duty.”

On December 7, 2007, Stout timely filed an appeal of the

ERS Board’s proposed decision to deny both service-connected

occupational disability retirement benefits and service-

connected total disability retirement benefits.

D. Administrative Proceedings Regarding Cross-motions for
Summary Judgment

On February 25, 2009, Stout’s appeal was assigned to a

hearing officer. The parties agreed to address the threshold

issue of whether Stout was eligible to apply for service-

connected disability retirement, given that she was shot while

teaching summer school for the DOE. Cross-motions for summary

judgment were filed. A hearing on the motions was held on

January 10, 2013.

On March 6, 2013, the hearing officer issued a Recommended

Decision, determining that the main issue on appeal “is simply

whether the summer school program at Aiea High School on June

30, 1988 was a covered employment under the Employees’

Retirement System[.]” The hearing officer quoted the relevant

statute that provides service-connected disability retirement,

HRS § 88-79,6 and concluded: “It goes without saying that this

6
Upon application of a member, or the person appointed by
the family court as guardian of an incapacitated member,
any member who has been permanently incapacitated for duty
(continued . . .)
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requirement[, “while in the actual performance of duty,”] refers

to employment that made contributions to the ERS in order to

establish ERS coverage.” Because Stout did not contribute any

of her summer school earnings to the ERS (nor did the DOE

contribute to the ERS based on Stout’s summer school earnings),

the hearing officer concluded that she did not satisfy the

“while in the actual performance of duty” requirement. The

hearing officer also noted that Stout was not “a member of ERS

when she was injured on June 30, 1988 while a part-time summer

school teacher” as “she was excluded from membership under HAR §

6-21-14.” Lastly, the hearing officer commented that he agreed

with the ERS Board’s argument that “it would be unfair to all

other members of the ERS to have retirement benefits taken by

[Stout] out of ERS funds when neither the DOE nor [Stout] made

the requisite contributions for such retirement benefits from

her part-time temporary summer school earnings.”

On July 15, 2013, the ERS Board issued a Proposed Decision,

which adopted the Recommended Decision and incorporated the

hearing officer’s findings of fact and conclusions of law as its

(. . . continued)
as the natural and proximate result of an accident
occurring while in the actual performance of duty at some
definite time and place, or as the cumulative result of
some occupational hazard, through no wilful negligence on
the member’s part, may be retired by the board [] for
service-connected disability . . . .

HRS § 88-79 (emphasis added).

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proposed decision, and denied Stout’s application for service-

connected disability retirement benefits.

Stout timely filed exceptions to the proposed decision.

She took issue with the hearing officer’s failure to explain why

the statement by “Department of Education – Radford High School”

that Stout was “‘on duty’ at the time of the accident” was

“unimportant.” Stout also pointed out the hearing officer

failed to indicate whether the standard of review for summary

judgment motions were followed, did not discuss several cases

she had cited to in her briefs such as Hua v. Board of Trustees

of the Employees’ Retirement System, State of Hawaiʻi, 112

Hawaiʻi 292, 145 P.3d 835 (App. 2006), and Kikuta v. Board of

Trustees of the Employees’ Retirement System, State of Hawaiʻi,

66 Haw. 111, 657 P.2d 1030 (1983), and inappropriately relied on

declarations submitted by the State.

The ERS Board held a hearing on September 23, 2014. After

the parties presented their arguments, the ERS Board elicited

the following information from counsel: summer school teachers

generally are DOE teachers because most DOE teachers are

certified and there is a preference that summer school teachers

have teacher’s certificates; summer school employment is not

required of tenured DOE teachers and is voluntary; and funding

for summer school is paid out of a separate fund composed of

student summer school tuition.
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At the hearing, one of the board members suggested that had

Stout been shot during school hours during the academic year,

there would have been no issue as to whether or not Stout’s

injury was a service-connected disability. Another board

member, who worked for the DOE, stated that she “d[id] know that

summer school needs to be self supporting [sic]” based on

student tuition. That board member also stated: “I’m really

clear . . . in the fact that I know that teachers, if they

choose to teach summer school, they’re just at risk because

they’re not covered . . . even though they’re DOE employees.”

She went on to express concern that the record lacked much

information regarding Stout’s incapacity, and suggested that had

that been looked at more closely in the case, “it would have

made things much easier for this board to be able to look at

something like granting.” Stout’s counsel then clarified that

based on an agreement with opposing counsel and the hearing

officer, the record was focused on the threshold issue of

whether Stout was legally entitled to apply for benefits, and

not on Stout’s medical condition.

On October 27, 2014, the ERS Board issued its Final

Decision. The ERS Board explained that the “threshold issue in

this appeal . . . is whether an accident that occurs in a non-

member position can be the basis for service-connected

disability retirement benefits.” It explained, therefore, that
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Hua and Kikuta were inapplicable to the case because they did

not concern this issue. The ERS Board acknowledged that Stout

was granted workers’ compensation benefits, including ERS

credits, based on the June 30, 1988 shooting; however, it

stated: “The ERS’s uniform practical construction of the

statutes and rules[, e.g., HRS §§ 88-42.5, 88-43, 88-77, 88-79;

HAR § 6-21-14,] involved in this appeal has been that ERS

members are not entitled to service-connected disability

retirement based on accidents that occur when they are

performing duties in non-membership employment positions.”

Accordingly, the ERS Board affirmed the Proposed Decision and

adopted the Recommended Decision, and therefore denied Stout’s

applications for service-connected occupational disability

retirement benefits and service-connected total disability

retirement benefits.

E. Circuit Court Proceedings

Stout timely filed a notice of appeal to the circuit court.

Oral argument was held on July 10, 2015 after the parties

submitted their briefs. Stout argued that the court should

“keep in mind” the “obvious remedial social purpose of any

public employee retirement system” and the borrowed use of

workers’ compensation tests in ERS cases such as Hua and Kikuta.

Stout argued that key facts supporting Stout’s eligibility for

benefits were that she was on State property, and that she was
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doing something related to her State employment. Specifically,

at the time she was shot, Stout was “doing what she was supposed

to do: Public school teacher, helping her students, teaching her

students, benefiting the [S]tate of Hawaii.” Stout also

asserted that the declaration given by DOE employee Wilfred

Keola, Jr. (“Keola”) regarding the operations and funding of

summer school and interpretation of Stout’s paystubs (“Keola

Declaration”), should not have been admitted because it was not

based on the declarant’s personal knowledge.

The circuit court orally dismissed the appeal and affirmed

the decision by the ERS at the end of the hearing. In its

written order, the circuit court found it dispositive that

because no ERS contributions were made with respect to Stout’s

summer school employment, “when . . . Stout was injured on June

30, 1988, she was performing duties in a part-time temporary

employment position that was excluded from and not covered by

ERS membership and benefits.”

F. Appellate Review

Stout timely filed her Notice of Appeal with the ICA on

August 17, 2015, and filed an Application for Transfer on April

4, 2016. This court granted the Application for Transfer and

held oral argument.

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1. Stout’s Position

Stout presents five points of error: the circuit court

erred by (1) failing to determine that Stout was injured in the

“actual performance of duty,” (2) disregarding the application

to her case of Kikuta and Hua, (3)-(4) failing to determine the

ERS Board erred by considering improperly admitted evidence and

DOE Regulation 5105, and (5) improperly considering HRS §§ 88-

42.5, 88-43 (Supp. 2004), and HAR § 6-21-14 in determining that

Stout was not covered by ERS membership and benefits when she

was shot on June 30, 1988.

We focus on Stout’s first point of error, as it is

dispositive. With respect to this issue, Stout asserts the

following evidence was not properly considered by ERS, the

hearing officer, or the circuit court: (1) that the DOE had

acknowledged that Stout was “on duty” “at Aiea High School” at

the time of the shooting, and that the Medical Board concluded

the shooting was an accident occurring “in the actual

performance of duty at some definite place and time”; (2) that,

on June 30, 1988, Stout was a continuously employed, permanent,

year-round public school teacher; (3) that, on June 30, 1988,

Stout was a contributing ERS member; and (4) that Stout received

workers’ compensation benefits associated with the injuries she

suffered following the June 30, 1988 shooting, and that ERS

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contributions were taken from those benefits such that she would

continue earning “retirement credits.”

Stout also points out that on June 30, 2008, the DOE was

her sole employer and that the DOE benefited from the work she

performed on the date of the accident. She argues she was shot

while teaching an English class on DOE premises, which benefited

the public education system and the State of Hawaiʻi. She also

observes that nothing in the applicable HRS chapters indicates

that a public school teacher is an employee of a particular

campus instead of being a State of Hawaiʻi employee. She asserts

that because the DOE had acknowledged that Stout was on duty at

one of its campuses at the time of the shooting, and because the

Medical Board had determined she was “in the actual performance

of duty at some definite place and time” when she was shot,

pursuant to HRS § 88-79(d), ERS could have, and should have,

adopted that conclusion.7

7
With respect to the other points of error, in summary, Stout argues that
the “liberal, remedial focus [of service-connected disability] reflected in”
Kikuta and Hua provide the correct mode of analysis for Stout’s circumstances
and that the distinctions drawn by the ERS between Stout’s situation and
those in Kikuta and Hua are irrelevant. Stout also argues the Keola
Declaration was inadmissible and should not have been relied upon by the
hearing officer or the ERS because Keola lacked personal knowledge of the DOE
summer school program as it had operated in 1988. She also asserts that the
copy of the DOE internal policy, “Regulation 5105,” attached to Keola’s
declaration, was inadmissible and should not have been considered by the
hearing officer. Regulation 5105 states that part-time temporary employees,
such as summer school teachers, are “[n]ot eligible for membership” for
“[r]etirement.” Finally, Stout also argues that HRS §§ 88-42.5, 88-43, and
HAR § 6-21-14 were improperly construed so as to deny Stout service-connected
disability benefits. Stout asserts the ERS should not be allowed to “blow
hot and cold” by: (1) on the one hand, stating that because Stout did not
(continued . . .)
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2. The State’s Position

The State asserts substantial evidence supports the ERS

Board’s finding that Stout’s summer school teaching position was

not an ERS membership position, and characterizes the issue on

appeal as:

whether Stout can claim service-connected disability
retirement under [HRS] section 88-79 . . . based on an
accident that occurred while she was performing duties in a
part-time temporary employment position excluded from and
not covered by the Employees’ Retirement System (“ERS”),
and for which no contributions were paid to the ERS either
by Stout or her employer the Department of Education[.]

The State asserts that Stout’s position is flawed as to the

applicability of Hua and Kikuta, and whether evidence and

certain sections of Chapter 88 of the Hawaiʻi Revised Statutes

and Hawaiʻi Administrative Rules were appropriately considered,

which were Stout’s second through fifth points of error. With

respect to the dispositive first point of error, the State

argues that HRS § 88-79, which provides for service-connected

disability retirement benefits, implicitly requires the accident

that caused the member’s disability to have occurred while the

member was performing duties in an employment position covered

(. . . continued)
contribute to the ERS with her summer school earnings, she was ineligible for
benefits, and (2) on the other hand, preclude her from membership (and,
therefore, making additional contributions) based on her summer school
position. As Stout’s first point of error is dispositive, we need not
address these other issues.

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by ERS membership, i.e., “membership service.”8 The State

asserts that such a requirement is obvious from a consideration

of the entire ERS statute, general legislative scheme and

purposes, and to give the statute a rational and sensible

interpretation and avoid absurd and unjust results. The State

argues that interpreting HRS § 88-79 in a manner contrary to its

proposed interpretation would lead to the absurd result that

academic-year school teachers “could claim service-connected

disability retirement for accidents that occurred while they

were working in part-time or temporary jobs including those for

private employers, e.g., working as a part-time salesperson for

a department store or teaching in a private summer school

program.”

The State further argues that the entire legislative scheme

of Chapter 88 should be examined. The State asserts that the

general legislative scheme in HRS Chapter 88 ties both the

funding of ERS retirement benefits and payment of those benefits

to ERS members’ performance of services covered by ERS

membership and the payment of contributions for such service.

The State cites to the following sections in support: HRS §§ 88-

21 (definitions), 88-42.5 (membership of employees holding more

than one position, appointment, or office), 88-45 (employee

8
“Membership service” is “all service rendered by a member for which the
member had made the required contributions to the system.” HRS § 88-21.

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contributions), 88-46 (deducting employee contributions from

salary and employer pick up of employee contributions), 88-51

(membership service generally), 88-74 (allowance on service

retirement), 88-75 (ordinary disability retirement), 88-76

(allowance on ordinary disability retirement), 88-80 (allowance

on retirement for service-connected disability), 88-81(a)

(average final compensation), 88-122 (determination of employer

normal cost and accrued liability contributions). Moreover, the

State asserts that to the extent HRS § 88-79 is ambiguous, the

court should defer to the ERS Board’s expertise and follow its

interpretation and application of the statute.

III. Standards of Review

A. Interpretation of a Statute

Statutory interpretation is a question of law reviewable de

novo. See Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation

omitted). When construing statutes, the court is governed by

the following rules:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

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When there is ambiguity in a statute, the meaning of
the ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative history,
or the reason and spirit of the law.

114 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).

B. Administrative Agency Appeals

Ordinarily, deference will be given to decisions of
administrative agencies acting within the realm of their
expertise. The rule of judicial deference, however, does
not apply when the agency’s reading of the statute
contravenes the legislature’s manifest purpose.
Consequently, we have not hesitated to reject an incorrect
or unreasonable statutory construction advanced by the
agency entrusted with the statute’s implementation.

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d
348, 360 (2002) (citations and brackets omitted).
IV. Discussion

It is undisputed that at all relevant times, Stout’s sole

employer was the DOE. In 1988, she served the DOE in two

capacities: first, she was employed year-round to teach at

Radford High School during the academic year; second, she was

hired to teach during the summer at ʻAiea High School. Stout

received her year-round salary semi-monthly, and made ERS

contributions with each payment. She was paid separately for

her summer school work and did not contribute — nor was she

permitted by law to contribute — to the ERS from those earnings.9

9
See HRS § 88-42.5 (“Any contributions made based on the compensation, pay,
or salary of the employee’s position, appointment, or office other than that
on which the employee’s membership is based shall be returned to the
employee.”).

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The parties further agree that Stout was a contributing

member of ERS at the time of the June 30, 1988 shooting.

Additionally, Stout’s disability is a natural and proximate

result of that shooting, which occurred while Stout was in the

actual performance of duty at ʻAiea High School. At issue is

whether Stout is eligible for “service-connected disability

retirement” benefits pursuant to HRS § 88-79, which is a matter

of statutory interpretation.

A. Stout Is Eligible for Benefits under the Plain Language of
HRS § 88-79

HRS § 88-79 states in relevant part:

Service-connected disability retirement. (a) Upon
application of a member, or the person appointed by the
family court as guardian of an incapacitated member, any
member who has been permanently incapacitated for duty as
the natural and proximate result of an accident occurring
while in the actual performance of duty at some definite
time and place, or as the cumulative result of some
occupational hazard, through no wilful negligence on the
member’s part, may be retired by the board for service-
connected disability; provided that:

(1) In the case of an accident occurring after July
1, 1963, the employer shall file with the system a copy of
the employer’s report of the accident submitted to the
director of labor and industrial relations;

(2) An application for retirement is filed with the
system within two years of the date of the accident, or the
date upon which workers’ compensation benefits cease,
whichever is later;

(3) Certification is made by the head of the agency
in which the member is employed, stating the time, place,
and conditions of the service performed by the member
resulting in the member’s disability and that the
disability was not the result of wilful negligence on the
part of the member; and

(4) The medical board certifies that the member is
incapacitated for the further performance of duty at the

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time of application and that the member’s incapacity is
likely to be permanent.

. . . .

(d) The board may determine whether or not the disability
is the result of an accident occurring while in the actual
performance of duty at some definite time and place and
that the disability was not the result of wilful negligence
on the part of the member. The board may accept as
conclusive:

(1) The certification made by the head of the agency
in which the member is employed; or

(2) A finding to this effect by the medical board.

. . . .

HRS § 88-79.

HRS § 88-79, in both its text and its title, allows for the

retirement of a member for “service-connected disability.”

Additionally, one of the four statutory requirements to obtain

service-connected disability retirement is: “Certification is

made by the head of the agency in which the member is employed,

stating the time, place, and conditions of the service performed

by the member resulting in the member’s disability and that the

disability was not the result of wilful negligence on the part

of the member.” See HRS § 88-79(a)(3). As the statute

consistently uses the term “service” and no other,10 our

statutory inquiry necessarily turns on whether the accident
10
Notably, HRS § 88-79(a)(3)’s requirement that certification be “made by
the head of the agency in which the member is employed, stating the time,
place, and conditions of the service performed by the member resulting in the
member’s disability,” does not limit the disabling accident to have occurred
in “the employment position covered by ERS membership.” Rather, it focuses
on the “service performed by the member,” i.e., “service [(as an employee
paid by the State or county)] performed by the member.”

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occurred when Stout was performing “service,” i.e., whether the

accident was “service-connected.”

HRS § 88-21 defines “service” as follows:

“Service”: service as an employee paid by the State
or county, and also: service during the period of a leave
of absence or exchange if the individual is paid by the
State or county during the period of the leave of absence
or exchange; and service during the period of an unpaid
leave of absence or exchange if the individual is engaged
in the performance of a governmental function or if the
unpaid leave of absence is an approved leave of absence for
professional improvement; provided that, for the period of
the leave of absence or exchange without pay, the
individual makes the same contribution to the system as the
individual would have made if the individual had not been
on the leave of absence. Cafeteria managers and cafeteria
workers shall be considered as paid by the State,
regardless of the source of funds from which they are paid.

(emphases added). Notably, regardless if an employee is paid or

on unpaid leave, certain acts by the employee are “service” so

long as their performance was “paid by the State or county,” of

a “governmental function,” or for approved professional

improvement. Accordingly, HRS § 88-79 provides for the

retirement of members due to disability “connected” to any such

governmental “service.”

Specifically, the disability must be a “natural and

proximate result of an accident occurring while in the actual

performance of duty at some definite time and place, or as the

cumulative result of some occupational hazard, through no wilful

negligence on the member’s part.” HRS § 88-79. Thus, the plain

language of the statute imposes a requirement that the disabling

accident occur while the member is “in the actual performance of

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duty” to the State or county (or while performing a governmental

function or pursuing professional improvement), and precludes

service-connected disability benefits for a disabling accident

at a member’s non-State or non-county second job. Accordingly,

there is no merit to the State’s argument that the statute can

be construed in a manner leading to the “absurd” result that HRS

§ 88-79 coverage extends to accidents occurring while a full-

time public school teacher is working as a retail store clerk or

private school teacher.

In sum, there is nothing ambiguous regarding HRS § 88-79’s

use of the terms, “service” or “service-connected.” Thus, we

reject a construction of the statute that conflates “service”

with “membership” or “membership position,” when those words are

not in the statute. See Coon, 98 Hawaiʻi at 245, 47 P.3d at 360

(“[W]e have not hesitated to reject an incorrect or unreasonable

statutory construction advanced by the agency entrusted with the

statute’s implementation.”). Here, as stated in the record, at

the time of the accident, Stout was an ERS member and the

service she performed for the State was “language arts teacher –

Summer Session at Aiea High School.” As such, Stout is eligible

for benefits under the plain language of HRS § 88-79.

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B. The Legislative History Also Supports the Plain Meaning of
HRS § 88-79

Our plain language interpretation is bolstered by the

lengthy legislative history of the statute, which shows: 1) when

the legislature enacted the predecessor to the ERS in 1925, it

sought to provide a pension to all members who became disabled

“due to an accident in the performance of duty”; 2) in 1963, the

legislature specifically re-named and amended the “accidental

disability benefit” statute to “service-connected” total and

occupational disability benefit statutes; 3) the legislature has

expanded the “service-connected disability benefit” over time;

and 4) the legislature has revisited HRS § 88-79 or its

predecessor statutes on numerous occasions, and it has

consistently declined to limit “service-connected” disabling

injuries to injuries that occur only in the course of

“membership service.”

Before 1925, there was no “uniform and established method

of taking care of the employees who [we]re unable to continue in

service on account of old age or disability,” with the exception

of some teachers who were covered by a plan established in 1915.

Joint Comm. on Pensions of the Senate and House of

Representatives (“Joint Committee”), Report on the Bill to

Establish a Retirement System for Territorial Employees of the

Territory of Hawaii 3–4 (1925) (“1925 Joint Report”). By 1925

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the Territorial Legislature enacted Act 55, “An Act to Establish

a Retirement System to Provide for the Retirement of Employees

of the Territory of Hawaii and Teachers in the Public Schools,”

so that all government employees, including teachers previously

covered under the 1915 plan, would be covered under the same

retirement plan. See 1925 Haw. Sess. Laws Act 55 (H.B. 396);

1925 Joint Report at 4. See also Panado v. Bd. of Trs., Emps.

Ret. Sys., 134 Hawaiʻi 1, 14, 332 P.3d 144, 157 (2014)

(discussing the history of the ERS and citing the 1925 Joint

Report).

As noted in the 1925 Joint Report that was submitted to the

Territorial Legislature regarding H.B. 396, the plan’s

disability benefit distinguished between “cases of permanent

disability that occur as the result of accidents in the

performance of duty” [(“accidental disability”)] and those due

to ordinary causes for which the government is not directly

responsible [(“ordinary disability”)].” 1925 Joint Report at

27; compare 1925 Haw. Sess. Laws Act 55, § 6(3) at 59, with id.

§ 6(5) at 59–60; see also Panado, 134 Hawaiʻi at 14, 332 P.3d at

157 (quoting 1925 Joint Report at 27).

With respect to cases of ordinary disability “for which the

government [wa]s not . . . responsible,” a ten-year minimum

service requirement was imposed to “reduce[] the cost to the

government and protect[] the fund against early disabilities.”
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1925 Joint Report at 28; 1925 Haw. Sess. Laws Act 55, § 6(3).

In contrast, there was no minimum service requirement for the

receipt of benefits due to accidental disability, as the Joint

Committee “believed that a pension should always be payable

regardless of the age or length of service of the member” if the

employee became disabled due to accidental causes in the

“performance of duty.” 1925 Joint Report at 27; see also id. at

37. The Joint Committee elaborated: “[f]or an example of the

application of this benefit we may consider the case of an

employee who, in an explosion occurring while at work for the

government, loses his eyesight. In such a case, the government

would provide him with a pension . . .” and a return of all

contributions as an additional annuity.11 Id. at 27 (emphasis

added).

In other words, the legislature recognized that in cases

where but for an employee’s service to the government the

employee would not have become disabled and unable to continue

to work, that employee should receive some kind of retirement

benefit regardless of the employee’s duration of service and

amounts contributed to the retirement system. See Panado, 134
11
Any employee that left service prior to retirement age — including those
who became disabled while at work for the government — was entitled to a
return of all contributions. See 1925 Joint Report at 8 (“Employees’
contributions are placed in a distinct and separate fund, called the Annuity
Savings Fund. Each employee’s contributions are credited to his own account
and may be withdrawn if he leaves the service without a retirement
allowance.”); id. at 7 (stating that contributions are returned with interest
or as an annuity in cases of disability, death, resignation, or dismissal).

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Hawaiʻi at 14, 332 P.3d at 157 (“The key question reiterated by

the [1925 Joint] [C]ommittee at several points was whether the

accident occurred ‘in the performance of duty.’”). The Joint

Report gave no indication that the position in which a member

became disabled was at all relevant; of foremost concern was

whether the member was in service to the government when the

disabling injury occurred.

In 1963, the legislature specifically re-named and amended

the “accidental disability benefit” to the “service-connected

total disability benefit” and “service-connected occupational

disability benefit.” See 1963 Haw. Sess. Laws Act 127, §§ 6–7

at 145–47; Revised Laws of Hawaiʻi (“RLH”) §§ 6-46, 6-46.1 (Supp.

1963). The change was intended to “[p]rovide for a distinction

in benefits as between service-connected total disability and

service-connected occupational disability (incapacity for the

purpose of duty).” S. Stand. Comm. Rep. No. 21, in 1963 Senate

Journal, at 685. The use of the term “service-connected” in RLH

§§ 6-46, 6-46.1 appears intentional, as at the time of the

amendments, the definition of “service” was clear: “service as

an employee paid by the State or county, and also service during

the period of a leave of absence or exchange if the individual

is paid by the State or county during the period of the leave of

absence or exchange . . . .” RLH § 6-20 (Supp. 1963).

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Notably, the legislature has expanded the service-connected

disability benefit over time, instead of restricting it. In

1955, the benefit read:

Accidental disability benefit. Upon application of a
member, or of the head of his department, any member who
has been totally and permanently incapacitated for duty as
the natural and proximate result of an accident occurring
while in the actual performance of duty at some definite
time and place, through no negligence on his part, shall be
retired by the board if the medical board certifies that
such member is mentally or physically incapacitated for
further performance of duty, that such incapacity is likely
to be permanent, and that such member shall be retired.

RLH § 6-46 (1955). By 1963, the statute was amended to provide

both a “service-connected total disability benefit” and a

“service-connected occupational disability benefit.” RLH §§ 6-

46, 6-46.1 (Supp. 1963); see discussion supra. In 1965, the

legislature added that “any member who has been . . .

incapacitated . . . as the cumulative result of some

occupational hazard, through no wilful negligence on his part”

may also be retired for service-connected disability. See RLH

§§ 6-46, 6-46.1 (Supp. 1965). In 1974, the legislature

“create[d] a presumption for retirement purposes that a

fire[fighter] or sewer worker who is disabled . . . due to any

disease of the heart, lungs or respiratory system is presumed to

have been injured [or] diseased . . . while in the performance

of [the employee’s] duty and to grant disability retirement . .

. benefits.” S. Stand. Comm. Rep. No. 919, in 1974 Senate

Journal, at 1114; see 1974 Haw. Sess. Laws Act 182, at 391–95.

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In 1987, police officers were added to the list. See 1987 Haw.

Sess. Laws Act 81, § 81 at 137–38.

The expansion of benefits provided under HRS § 88-79 over

the years has been concurrent with the absence of statutory

language limiting benefits to accidents occurring only in ERS-

membership positions. Indeed, throughout the consideration of

the aforementioned amendments, the definitions of “membership

service” and “service” remained unaltered.12 As recently as in

2002, the legislature reconsidered the entire text of HRS § 88-

79 and did not alter the use of the term “service-connected,”

redefine it, or insert other terms. See 2002 Haw. Sess. Laws

Act 128, § 6, at 353–54. Thus, that HRS § 88-79 uses the term

“service-connected disability retirement” instead of “membership

service-connected disability retirement” appears purposeful.

All considered, this demonstrates that a restrictive

interpretation of HRS § 88-79 in the manner suggested by the

State and the Dissent would be contrary to the legislature’s

manifest purpose.

12
See 1969 Haw. Sess. Laws Act 110, § 1, at 94, 99 (amending and recodifying
Parts I and II of Chapter 6, Revised Laws of Hawaiʻi 1955) (defining
“membership service” as “all service rendered by a member for which he had
made the required contributions to the system”) (defining “service” as, in
part, “service as an employee paid by the State or county”).

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C. Stout’s Inability to Contribute to the ERS as a Summer
School Teacher Does Not Detract from Her Performance of
Service to the State While a Summer School Teacher or Alter
Her Status as an ERS Member

Despite the plain language of HRS § 88-79 and the foregoing

legislative history analysis, the Dissent nevertheless asserts

that there is an additional requirement that “logically follows”

from HRS §§ 88-42.5 and 88-43: that the disabling accident occur

only while the employee-member is working in the position that

provides the employee’s ERS membership eligibility. According

to the Dissent, “[t]he fact that Stout was employed by the State

for the summer session while contributing to ERS for another

State job at the time of her injury is merely coincidental and

should not be a factor when considering whether Stout was

eligible for benefits.”

We respectfully disagree with the Dissent. At the outset,

we note that contrary to the Dissent’s assertion that “Stout did

not make any contributions to the ERS while in this position,”

Stout did in fact make contributions to the ERS year-round

through deductions from her academic year salary, which was paid

by the DOE over the course of twelve months. Although HRS § 88-

42.5 concerns the limitation of an employee’s ERS contributions

(and therefore calculated distributions on retirement) and HRS §

88-43 concerns the denial of membership eligibility to part-time

employees, they do not address the distribution of ERS benefits

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to already existing members, such as Stout, or modify the

definition of “service-connected.” Thus, these statutes do not

support the Dissent.

To illustrate, if HRS § 88-79 benefits were limited to

“membership service-connected” injuries as interpreted by the

Dissent, ERS members with two full-time State or county jobs,

required to choose one full-time position pursuant to HRS § 88-

42.5, would not be entitled to service-connected disability

retirement for accidental injuries suffered during the non-

membership position. The Dissent agrees with this

hypothetical’s conclusion, noting, “however harsh it appears on

paper and in practice, this is the rule that is provided for

under the law.”

We do not agree that the legislature intended such a result.

Simply because one full-time position is not the basis for ERS

membership does not detract from the fact that the member

continues to serve the State or county in that position. In

other words, nothing in HRS § 88-42.5 or its legislative history

shows that the legislature intended the statute to re-

characterize the un-selected position from “service” to “non-

service,” or to create the harsh results suggested by the

Dissent as legislatively intended. Rather, the sole express

purpose of HRS § 88-42.5 was to limit the calculated amount of

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an employee’s ERS contributions and benefits to that based on

the chosen position’s pay.13

As noted above, the language of HRS § 88-79 and its

legislative history do not support the Dissent’s interpretation

of HRS § 88-79. The following two reasons also support Stout’s

eligibility for benefits.

First, the definition of “service” in HRS § 88-21, quoted

above, includes service during a paid leave of absence as well

as service during an unpaid leave of absence, as long as the

employee is a member who is engaged in the performance of a

governmental function or professional improvement, and as long

as the employee continues making contributions to the ERS

system. Stout was making such contributions on June 30, 1988.

Teaching public summer school would be the performance of a

governmental function or approved professional improvement.

Thus, even if “service,” as that term is used in HRS § 88-79,

were limited to Stout’s service as a full-time public school

teacher, she remains eligible for HRS § 88-79 benefits.

Second, the hearing officer expressed the concern

reiterated by the ERS Board at oral argument in the circuit

court, that “it would be unfair to all other members of the ERS

to have retirement benefits taken by Applicant out of ERS funds

13
See supra n.9 (quoting HRS § 88-42.5).

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when neither the DOE nor Applicant made the requisite

contributions for such retirement benefits from her part-time

temporary summer school earnings.” However, as is evident by

other sections within HRS Chapter 88, as explained above, the

legislature’s primary concern with respect to the issuance of

benefits under HRS § 88-79 appears to be service to the State or

county, and not additional contributions to the ERS, as long as

the member is making ERS contributions during the time of the

additional government service. Thus, the Dissent’s suggestion

that our holding would mean that “a large class of people – all

those who work at public summer school across the State,

including teachers, administrators, and various support staff –

to receive benefits without paying into the retirement system,”

is an unfounded alarm, as it wholly disregards that only

existing ERS members would be eligible for service-connected

disability benefits. The Dissent’s assertion that our holding

“creates a tremendous financial burden and unfunded liability

for the ERS because the ERS is now responsible for paying

benefits to an unknown number of employees who become injured on

the job but who have not contributed into the system,” is also

without merit for this reason. In addition, there is no

evidentiary support in the record for the Dissent’s sweeping

assertions, including the suggestion that our holding will have

negative far-reaching effects and consequences.
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Also, HRS § 88-132 (Supp. 2011) provides that the State or

county pay all contributions to the ERS when members must leave

active service of the State or any county for military service

in times of war or national or state emergencies. Yet, despite

such continuing contributions to the ERS, the member is not

entitled to benefits under HRS § 88-79 if “incapacitated for

duty by accident, act of war, or otherwise, occurring while the

member is not in the service of the State or any county.” HRS §

88-136 (Supp. 2004). Thus, the legislature’s framework for

“fairness” as to who is entitled to benefits under HRS § 88-79

is not based on the amount of money contributed by or on behalf

of a member, but rather if the disabling accident occurs while

in service to the State or county, as long as ERS contributions

are being made during the non-membership service.

In sum, HRS Chapter 88 provides for a retirement benefit to

members who become disabled due to the occurrence of an accident

while in the service of the State or any county, regardless if

that service is “membership service.” For the foregoing

reasons, even if Stout’s service as a summer school teacher to

the DOE at the time of the shooting may not have been

“membership service,” she is eligible for benefits under HRS §

88-79.

Based on our analysis, we need not and do not address

Stout’s additional points on appeal, including whether or not
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Hawaii’s pension and retirement benefits law, i.e., Chapter 88,

should be “liberally construed” in favor of beneficiaries.14

For all of these reasons, again, we respectfully disagree

with the Dissent. The Dissent’s reliance on HRS §§ 88-42.5 and

88-43 is misplaced because, as discussed, although these

statutes permit the ERS board to limit membership and

contributions, they do not restrict the benefits of existing

members, such as Stout. Moreover, what the Territorial

Legislature noted in 1925 when it created the ERS remains true

today: regardless of an employee’s age or length of service,

should the employee become disabled as a result of a service-

connected accident, he or she is eligible for accidental or

service-connected disability retirement benefits. See HRS §§

88-79, 88-80 (imposing no age or length or service requirement

for the receipt of an allowance on retirement for service-

connected disability); 1925 Joint Report 27 (same); id. at 8

(“The government will provide the total pension payable in the

case of accidental death or accidental disability of the

employee.”); see also, e.g., Emps.’ Ret. Sys., Questions &

Answers About Your Employees’ Retirement System Contributory

14
Several states, including Mississippi, have interpreted their government
workers’ pension laws in a manner so as “to carry out, and properly
recognize, their beneficent policy and purpose, and to confer the benefits
intended.” Smith v. Bd. of Gen. Ret. Sys. of Meridian, 224 Miss. 13, 23, 79
So. 2d 447, 451 (Miss. 1955).

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Plan 5 (2012) (“Regardless of credited service, if you are

permanently disabled as a result of a job-related (service-

connected) accident, you are entitled to a 100% refund of your

contributions (including interest) and a pension of 35% of your

AFC for life.” (emphasis added)). Clearly, so long as an

employee is a current ERS member, the amount of the member’s

contributions is irrelevant to the employee’s receipt of a

service-connected disability benefit.

The Dissent acknowledges the plain language of HRS § 88-79

“might suggest” the Majority’s conclusion, yet the Dissent

nevertheless suggests the Majority arrived at its decision out

of pity. In actuality, the rule of law controls. This is made

clear by the plain text of HRS § 88-79 within the context of the

entirety of chapter 88 and its legislative history,

demonstrating a long-standing legislative goal to provide for

governmental employees who become disabled in connection with

their State or county governmental service as long as ERS

contributions were being made during the non-membership service.

V. Conclusion

For the foregoing reasons, we vacate the ERS Board’s

October 27, 2014 Final Decision and the circuit court’s July 28,

2015 “Final Judgment and Decision and Order Affirming the Final

Decision of Appellee Board of Trustees of the Employees’

Retirement System of the State of Hawaii and Dismissing
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Appellant Rosemary H. Stout’s Appeal.” This matter is remanded

to the ERS Board for further proceedings consistent with this

opinion.15

John C. McLaren /s/ Mark E. Recktenwald
for petitioner
/s/ Sabrina S. McKenna
Brian Aburano
for respondent /s/ Richard W. Pollack

/s/ Michael D. Wilson

15
The court observes that the Board had previously acknowledged that it
would “approve and accept the certifications, findings and recommendations
contained in the [Medical Board’s] Report,” except for the Medical Board’s
“finding that [Stout’s] disability is the ‘result of an accident occurring
while in the ‘actual performance of duty.’[’]”

39