664 S.E.2d 686
CERTIFIED QUESTION ANSWERED
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2. “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).
3. The term “reemployed” as used in W.Va. Code § 5-10-18(a) means a return to the employ of a participating public employer after having left the employ of a participating public employer.
4. The reelection of an incumbent to a consecutive term of office does not
constitute reemployment under W.Va. Code § 5-10-18(a). As a result, an incumbent who is
reelected to a consecutive term of office is not eligible to have his or her previously forfeited
credited service restored to his or her credit.
Maynard, Chief Justice:
In this Case, this Court answers the following question certified by the Circuit
Court of Berkeley County:
Does the reelection of an incumbent, to a consecutive
term of office, constitute reemployment under W.Va. Code § 5-
10-18(a), thereby making the incumbent eligible to reinstate
forfeited PERS credit upon repayment of the amount withdrawn
plus interest?
The circuit court answered the question in the affirmative. For the reasons that follow, we
answer the question in the negative.
The applicant's contention that a new opportunity to
reinstate under subsection (a) of § 5-10-18 arose upon
commencement of his second term as Sheriff is, regrettably,
without merit. That he was not sworn in until some time after
the commencement of his term on January 1, 2005, does not
provide a break in service because § 6-5-2 of the West Virginia
Code provides as follows:
“The term of every officer shall continue (unless
the office be vacated by death, resignation,
removal from office, or otherwise) until his
successor is elected or appointed, and shall have
qualified.”
Consequently it must be concluded that his employment has
been continuous and no new opportunity to reinstate under such
subsection (a) has arisen. It is further concluded that the
applicant is not now eligible to reinstate his previously forfeited
service credit. (Footnote omitted.).
By order of February 1, 2006, the Consolidated Public Retirement Board adopted the hearing
officer's recommended decision.
The petitioner appealed the Board's decision to the Circuit Court of Berkeley
County. (See footnote 1) By order of December 22, 2006, the circuit court certified the question set forth
above to this Court, and answered it in the affirmative. This Court decided to review the
certified question by order of June 27, 2007. We now proceed to consider the question.
When a member of the Retirement System retires or dies,
he or she ceases to be a member. When a member leaves the
employ of a participating public employer for any other reason,
he or she ceases to be a member and forfeits service credited to
him or her at that time. If he or she becomes reemployed by a
participating public employer he or she shall be reinstated as a
member of the Retirement System and his or her credited service
last forfeited by him or her shall be restored to his or her credit:
Provided, That he or she must be reemployed for a period of one
year or longer to have the service restored: Provided, however,
That he or she returns to the members' deposit fund the amount,
if any, he or she withdrew from the fund, together with regular
interest on the withdrawn amount from the date of withdrawal
to the date of repayment, and that the repayment begins within
two years of the return to employment and that the full amount
is repaid within five years of the return to employment.
In order to decide the certified question, this Court must first determine the
meaning of the term “reemployed” as used in W.Va. Code § 5-10-18(a). The petitioner
asserts that because the term is not defined in the statute, this Court should liberally construe
the term in order to promote the Legislature's purpose in passing the Public Employees
Retirement Act. (See footnote 2) The petitioner further argues that this Court should look to the School
Personnel Act which, he says, provides that a probationary employee is reemployed under
the Act upon rehiring or retention regardless of whether there is a break in employment. (See footnote 3)
This Court has held that “[g]enerally the words of a statute are to be given their
ordinary and familiar significance and meaning, and regard is to be had for their general and
proper use.” Syllabus Point 4, State v. Veterans Of Foreign Wars, 144 W.Va. 137, 107 S.E.2d
353 (1959). Also, “[a] statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full force
and effect.” Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).
We find that the language of W.Va. Code § 5-10-18(a) is unambiguous and that
the meaning of the word “reemployed” as used in the statute is clear. Therefore, we do not
find it necessary to resort to the rules of construction or to consult other statutory provisions
in order to determine the meaning of the word “reemployed.” First, the word “reemployed”
in the statute refers to a member of the retirement system who “leaves the employ of a
participating public employer,” ceases to be a member of the retirement system, forfeits
service credited to him or her, and then returns to the employ of a participating public
employer and is reinstated as a member of the retirement system. Second, the statutory
language clearly indicates that reemployment means a “return to employment” when it
provides that “the repayment begins within two years of the return to employment and that the
full amount is repaid within five years of the return to employment.” Therefore, we hold that
the term “reemployed” as used in W.Va. Code § 5-10-18(a) means a return to the employ of
a participating public employer after having left the employ of a participating public
employer.
It is clear under our law, however, that an incumbent who is reelected to a
consecutive term of office does not leave his or her employment at the end of his or her
original term and return to employment at the beginning of the second term. In other words,
the incumbent experiences no break or cessation in employment between terms of office.
According to W.Va. Const., art. IV, § 6, “[a]ll officers elected or appointed under this
Constitution . . . shall continue to discharge the duties of their respective offices until their
successors are elected, or appointed and qualified.” See also W.Va. Code § 6-5-2 (1923)
(“The term of every officer shall continue . . . until his successor is elected or appointed, and
shall have qualified.”). (See footnote 4) For example, under the instant facts, it is undisputed that from the
period ending on December 31, 2004, until the petitioner was sworn in to his second term as
sheriff sometime in January 2005, he continued to perform the duties of sheriff and he
continued to receive a paycheck. (See footnote 5) Further, W.Va. Code § 15-10-18(a) provides that “[w]hen
a member leaves the employ of a participating public employer . . . he or she ceases to be a
member and forfeits service credited to him or her at that time.” An incumbent who is
reelected to a consecutive term of office, however, does not cease to be a member of PERS
and does not forfeit credited service upon completion of his or her first term in office. In sum,
we find nothing in the language of W.Va. Code § 5-10-18(a) to support the notion that an
incumbent who is elected to a consecutive term of office leaves his or her employment after
the first term and is “reemployed” upon beginning the second term of office. Thus
reemployment under W.Va. Code § 5-10-18(a) simply is not the same as reelection to a
consecutive term. We hold therefore that the reelection of an incumbent to a consecutive term
of office does not constitute reemployment under W.Va. Code § 5-10-18(a). As a result, an
incumbent who is reelected to a consecutive term of office is not eligible to have his or her
previously forfeited credited service restored to his or her credit.
This Court also believes that our holding is consistent with language in W.Va.
Code § 5-10-18(a) that contemplates that the period for reinstatement of previously forfeited
credited service must occur within two years of the reemployment that triggers reinstatement
in PERS. According to the statute, “[i]f he or she becomes reemployed by a participating
public employer he or she shall be reinstated as a member of the Retirement System and his
or her credited service last forfeited by him or her shall be restored to his or her credit:
Provided . . . that the repayment begins within two years of the return to employment[.]” In
other words, the return to employment that triggers reinstatement in PERS is the same return
to employment that commences the two-year period in which to restore one's previously
forfeited credited service. Under the petitioner's construction of the statute, however, a
person could be reinstated to PERS upon one's initial election to office and yet not choose to
restore one's previously forfeited credited service for several subsequent
reelections/reemployments, which is a result clearly at odds with the statutory language.
Further, we note that our holding herein does not create any unreasonable
hardships for members of PERS who seek to restore previously forfeited credited service. For
example, the facts below indicate that the petitioner was properly notified of the time period
for restoring his previously forfeited credited service, and he had more than sufficient time
to do so. In fact, because the petitioner fell within the special provision of W.Va. Code § 5-
10-18(d), he had an additional two years in which to begin the repayment of his credited
service beyond the two-year period provided in subsection (a). According to W.Va. Code §
5-10-18(d):
Effective the first day of March, two thousand three, and
ending the thirty-first day of December, two thousand four, any
member may purchase credited service previously forfeited by
him or her and the credited service shall be restored to his or her
credit: Provided, That he or she returns to the members' deposit
fund the amount, if any, he or she withdrew from the fund,
together with interest on the withdrawn amount from the date of
withdrawal to the date of repayment at a rate to be determined by
the Board. The repayment under this section may be made by
lump sum or repaid over a period of time not to exceed sixty
months. Where the member elects to repay the required amount
other than by lump sum, the member is required to pay interest at
the rate determined by the Board until all sums are fully repaid.
The petitioner began his original term as sheriff on January 1, 2001. Thus, under subsection
(a), he had to begin repayment of his previously forfeited credited service within two years
of his return to employment which was January 1, 2003. However, under subsection (d), he
was given until December 31, 2004, a total of four years, in which to begin repayment.
Finally, the petitioner's construction of W.Va. Code § 5-10-18(a) would result
in the creation of two classes of PERS members with each class operating under different time
periods for restoration of forfeited credited service. Specifically, an unelected member of
PERS would have two years from reemployment in which to begin repayment of previously
forfeited credited service. In contrast, an elected member of PERS would have an indefinite
period of time in which to begin reinstatement of credited service depending on the number
of times he or she is reelected to consecutive terms of office. (See footnote 6) This Court believes that such
an inequitable result could not have been intended by the Legislature.
Does the reelection of an incumbent, to a consecutive term
of office, constitute reemployment under W.Va. Code § 5-10-
18(a), thereby making the incumbent eligible to reinstate
forfeited PERS credit upon repayment of the amount withdrawn
plus interest?
Answer: No.
Certified question answered.