671 S.E.2d 673
SENIOR STATUS JUSTICE MCHUGH, sitting by temporary assignment.
4. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given
their common, ordinary and accepted meaning in the connection in which they are used.”
Syllabus point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810
(1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291
S.E.2d 477 (1982).
5. Within the definition of “less than honorable service” set forth in
W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), the term “related to” requires the
referenced felony conviction to be connected to or associated with the participant's office
or employment.
Davis, Justice: (See footnote 1)
The appellant herein and respondent below, Jerry Allen Weaver (hereinafter
“Mr. Weaver”), appeals from an order entered July 23, 2007, by the Circuit Court of
Kanawha County. By that order, the circuit court determined that Mr. Weaver, who is a
retiree of the West Virginia Public Employees Retirement System (hereinafter “PERS”),
had forfeited his right to receive benefits therefrom because he had rendered “less than
honorable service” in violation of W. Va. Code § 5-10A-1 (1976) (Repl. Vol. 2006) and
W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006). Specifically, the circuit court
determined that because Mr. Weaver, who, prior to his retirement, had served as the
elected Assessor of Lincoln County from 1980 until 2006, had been convicted of the felony
of conspiracy to buy votes pursuant to 18 U.S.C. § 371 (1994) (Repl. Vol. 2008), such
crime constituted a “[c]onviction of a participant of a felony for conduct related to his . . .
office . . . which he . . . committed while holding the office” in violation of W. Va. Code
§ 5-10A-2(e)(2). On appeal to this Court, Mr. Weaver contends that the circuit court erred
by concluding that his conviction of conspiracy to buy votes was related to his office as
Assessor insofar as he claims that he did not benefit directly from such conspiracy. Upon
a review of the parties' arguments, the pertinent authorities, and the record designated for
appellate review, we affirm the ruling of the circuit court.
[a] fundamental breach of the public trust occurred
when an elected official, Respondent [Mr. Weaver],
feloniously engaged in a conspiracy to buy votes during
elections in which he was a candidate[.]
Respondent's felony conviction is related to his elected
position. Respondent became a member of the West Virginia
Public Employees Retirement System (PERS) by virtue of
holding an elected office and remained a member by
repeatedly winning elections. He was convicted of corrupting
many of the elections which triggered his eligibility and
allowed for his continued participation in the public funded
pension system (PERS)[.]
Pursuant to West Virginia Code § 5-10A-1, et seq., the
Respondent, Jerry Allen Weaver, has rendered less than
honorable service and as a consequence is legally ineligible to
receive any benefits as a retirant of the Public Employees
Retirement System[.]
(Emphasis in original). Finally, the court ordered that Mr. Weaver's “membership in the
Public Employees Retirement System be terminated pursuant to West Virginia Code § 5-
10A-1, et seq., and that his past employee contributions together with statutory interest be
refunded to him minus any benefits he has previously received.” (See footnote 5) From this ruling of the
circuit court, Mr. Weaver appeals to this Court.
The criteria for disqualification for pension benefits administered by PERS are set forth in W. Va. Code § 5-10A-1, et seq. Specifically, a retirant's eligibility to receive PERS pension benefits is conditioned upon his/her having rendered “honorable” service:
The Legislature finds and declares that every retirement plan instituted and created under the laws of this state has from the inception thereof contemplated and each now contemplates that the service rendered by any participating public officer or employee shall at all times be honorable. The Legislature further finds and declares that honorable service is a condition to receiving any pension, annuity, disability payment or any other benefit under a retirement plan.
W. Va. Code § 5-10A-1 (1976) (Repl. Vol. 2006). We previously have examined this statutory language and have held that “[a]t common law, as under W. Va. Code, 5-10A-1 to 5-10A-10 [1976], a public officer's or public employee's service must be honorable at all times, and if not, there is a total forfeiture of the public pension.” Syl. pt. 1, West Virginia Pub. Employees Ret. Sys. v. Dodd, 183 W. Va. 544, 396 S.E.2d 725 (1990), overruled on other grounds by Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995). In a later opinion, we clarified our earlier holding in Dodd, explaining that
[i]f an employee engages in misconduct during his or
her public service, he or she may forfeit rights to collect a
pension later. Insofar as West Virginia Public Employees
Retirement System v. Dodd, 183 W. Va. 544, 396 S.E.2d 725
(1990) holds that an employee's misconduct results in a
forfeiture of the entire pension, it is still good law because the
requirement of honorable service has been established in
advance and has been made an explicit part of the entire bargain. Syl. pt. 9, in part, Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995).
The parties to the instant proceeding do not dispute that “honorable service”
is a prerequisite to a retirant's receipt of PERS pension benefits, and the circuit court
likewise concluded that Mr. Weaver was required to have rendered “honorable service”
in order to be eligible to receive his PERS retirement. Rather, the parties disagree as to
what conduct constitutes “less than honorable service” such as would result in the loss of
eligibility or the forfeiture of Mr. Weaver's status as a participant in PERS.
To determine whether Mr. Weaver's misconduct constitutes “less than
honorable service,” it is necessary to look to the statutory definition of this term. Pursuant
to W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), (See footnote 7) “'[l]ess than honorable
service' means . . . . (2) Conviction of a participant of a felony for conduct related to his
or her office or employment which he or she committed while holding the office or during
the employment[.]” Interpreting this statute, the circuit court ruled that Mr. Weaver's
felony conviction for conspiracy to buy votes, which nefarious conduct occurred over a
period of fourteen years during which time Mr. Weaver also was holding office as the
Assessor of Lincoln County and which conspiracy tainted the very same elections by which
Mr. Weaver was elected Assessor and obtained his status as a participant in PERS,
satisfied the definition of “less than honorable service” so as to result in his ineligiblity to
receive PERS pension benefits because Mr. Weaver's felonious conduct was “related to”
his office and was committed while he held said office. The Board agrees with the circuit
court's interpretation and application of this statutory language, echoing the circuit court's
concerns that the felonious corruption of elections by an elected official, which tampering
occurred while the official was serving in his/her elected office, is “related to” the
official's office so as to constitute “less than honorable service.” However, Mr. Weaver
disputes this interpretation of the relevant statutory language and instead claims that
because there was no direct relationship between his actions and his office, and no
evidence that he conspired to buy votes to benefit his own reelections, there is an
insufficient nexus upon which to determine that his felony conviction was “related to” his
office.
The statutory definition of “less than honorable service” requires a
participant to (1) have been convicted of a felony; (2) for conduct “related to” his/her
office or employment; and (3) which felonious conduct was committed while the
participant was holding said office or during his/her employment. W. Va. Code § 5-10A-
2(e)(2). Although the parties are in general agreement as to the meaning and application
of this statutory language, they disagree about the precise meaning to be accorded to the
term “related to.” Because “related to” is not further defined by the Legislature, we must
ascertain its intended meaning.
When determining the meaning of a statute, we resort to the rules of statutory
construction. “The primary object in construing a statute is to ascertain and give effect to
the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159
W. Va. 108, 219 S.E.2d 361 (1975). We next consider the precise words chosen by the
Legislature in drafting the statute in question. “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.” Syl. pt. 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488 (1951). Accord Syl. pt. 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the
statute.”). But see, e.g., Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454
(1992) (“A statute that is ambiguous must be construed before it can be applied.”); Syl.
pt. 1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983)
(“Judicial interpretation of a statute is warranted only if the statute is ambiguous and the
initial step in such interpretative inquiry is to ascertain the legislative intent.”).
If the Legislature has failed to provide a definition for a particular word or
term it has employed in a statute, meaning can be ascribed to such statutory language by
referring to the common, ordinary, accepted meaning of the undefined terminology. “In
the absence of any definition of the intended meaning of words or terms used in a
legislative enactment, they will, in the interpretation of the act, be given their common,
ordinary and accepted meaning in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other
grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982). More
succinctly, “[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.” Syl.
pt. 4, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107
S.E.2d 353. Accord Syl. pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525,
336 S.E.2d 171 (1984) (“Undefined words and terms used in a legislative enactment will
be given their common, ordinary and accepted meaning.”).
The term left undefined by the Legislature in W. Va. Code § 5-10A-2(e)(2)'s definition of “less than honorable service” is “related to.” The word “related” is variously defined as “associated; connected” (See footnote 8) and as “[h]aving mutual relation[ (See footnote 9) ] or conne[ct]ion.” (See footnote 10) Other jurisdictions that have examined this phrase likewise have construed “related to” as meaning “connected to [or] associated with”; (See footnote 11) “connected, associated, bearing on, pertaining to, or involving”; (See footnote 12) and “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” (See footnote 13) Cf. CPF Agency Corp. v. R&S Towing Serv., 34 Cal. Rptr. 3d 106, 111, 132 Cal. App. 4th 1014, 1022 (2005) (interpreting “related to,” as used in Interstate Commerce Act, as requiring “more than an indirect, remote, or tenuous effect” (internal quotations and citations omitted)).
Thus, it is apparent from the above-quoted authorities that the common, ordinary, and
accepted meaning of the term “related to” is “connected to or associated with.”
Accordingly, we hold that, within the definition of “less than honorable service” set forth
in W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), the term “related to” requires
the referenced felony conviction to be connected to or associated with the participant's
office or employment.
Turning now to the facts before us, we must determine whether Mr.
Weaver's felony conviction for conspiracy to buy votes, which conduct occurred while he
was holding the office of Assessor of Lincoln County, was related to his office so as to
render him ineligible to receive PERS pension benefits. In other words, was Mr.
Weaver's felonious conduct connected to or associated with his office? Mr. Weaver was
convicted for the felony crime of conspiracy to buy votes. This crime is inextricably
connected to and associated with Mr. Weaver's office insofar as his office as Assessor is
an elected office and the felony crime for which he was convicted involves tainting the
very same electoral process that led not only to his obtaining his office as Assessor but
which also rendered him eligible to participate in PERS as an elected official. See W. Va.
Code § 5-10-2(11) (2005) (Repl. Vol. 2006) (defining “[e]mployee” covered by West
Virginia Public Employees Retirement Act as including “an officer . . . [of] any political
subdivision”). The vote-buying conspiracy in which Mr. Weaver allegedly participated
corrupted eight different elections between 1990 and 2004. In four of those elections, Mr.
Weaver was a candidate for the office of Assessor and won reelection. To the extent the
activities of the alleged vote-buying conspiracy tainted those elections, in any way, shape,
or form, Mr. Weaver's participation therein unquestionably was related to his reelection
as Lincoln County Assessor, and, thus, his felonious conviction was related to his office.
Accordingly, we affirm the circuit court's ruling finding that Mr. Weaver has forfeited his
PERS pension benefits because he rendered less than honorable service as the Assessor of
Lincoln County.
Moreover, it goes without saying that, in the more than twenty-five years that
Mr. Weaver served as the elected Assessor of Lincoln County, he became intimately
familiar with and gained extensive knowledge of the political structure of Lincoln County.
Whether Mr. Weaver directly benefitted from his participation in the alleged conspiracy
does not matter. The relevant inquiry is whether his conviction thereof “related to” his
public office. With the numerous years of experience Mr. Weaver had as the elected
Assessor of Lincoln County, it is unfathomable that he could completely separate himself
from and entirely ignore the information as to the inner workings of Lincoln County
politics he had gained in this capacity while he pursued his criminal activity. Though Mr.
Weaver claims that he acted as a private citizen when he participated in the vote-buying
conspiracy, it is an unfortunate coincidence of timing that his criminal activity coincided
with his time in office. Public officers are held to a high standard of public trust, and if
they have been found to have violated the public trust, they risk the resultant forfeiture of
their publicly-funded pension benefits. See Syl. pt. 9, in part, Booth v. Sims, 193 W. Va.
323, 456 S.E.2d 167; Syl. pt. 1, Dodd, 183 W. Va. 544, 396 S.E.2d 725.
Finally, Mr. Weaver argues that because the federal district court did not find
a sufficient connection between his participation in the vote-buying conspiracy and his
elected office upon which to enhance his sentence, the circuit court erred by finding that
his conduct was related to his office. Although Mr. Weaver makes a valiant effort to save
his pension benefits, his argument on this point is flawed because the federal sentencing
guidelines that guided the district court's decision require a stronger showing of
relationship between the criminal conduct and the elected office than does the statutory
language at issue herein. Pursuant to § 3B1.3 of the United States Sentencing Guidelines,
a defendant's sentence may be enhanced “[i]f the defendant abused a position of public or
private trust . . . in a manner that significantly facilitated the commission or concealment
of the offense.” U.S. Sentencing Guidelines Manual § 3B1.3 (2005) (Main Vol. 2007)
(emphasis added). Thus, to warrant an increased sentence, the defendant's conduct must
have been not only related to, connected to, or associated with his/her public office, but
such conduct must also have constituted an “abuse[]” thereof. Id. (emphasis added). By
contrast, the statute governing a retirant's eligibility to receive PERS pension benefits
requires a much less substantial relationship between the retirant's criminal conduct and
his/her public office, requiring only that such conduct be “related to” his/her public office.
W. Va. Code § 5-10A-2(e)(2) (emphasis added). In light of the distinctions made by these
two different guidelines, our decision herein is not inconsistent with the findings made by
the federal district court. As we explained previously, we find that Mr. Weaver's
conviction for conspiracy to buy votes is related to his office as Assessor and that the
circuit court correctly determined that such felonious conduct, which is related to Mr.
Weaver's office and was committed while he held the same, constituted “less than
honorable service” so as to render Mr. Weaver ineligible to receive pension benefits from
PERS.