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Toney v. West Virginia Consolidated Public Retirement Board

Supreme Court of West Virginia

June 9, 2017

Rex Toney, Defendant Below, Petitioner
v.
West Virginia Consolidated Public Retirement Board, Plaintiff Below, Respondent

         Kanawha County 15-C-1474

          MEMORANDUM DECISION

         Petitioner Rex Toney, by counsel Mark Hobbs, appeals the Circuit Court of Kanawha County's March 30, 2016, order affirming the West Virginia Consolidated Public Retirement Board's ("The Board") decision to terminate petitioner's retirement benefits. The Board, by counsel J. Jeaneen Legato, filed a response in support of the circuit court's order. On appeal, petitioner argues that: (1) the circuit court abused its discretion by denying him his retirement benefits because they vested before his criminal conviction; (2) West Virginia Code § 5-10A-2 provides for a disproportionate penalty and cruel and unusual punishment; (3) West Virginia Code § 5-10A-2 violates the equal protection clause; and (4) principles of equity.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In January of 2014, petitioner, a school bus driver, pled guilty to the first-degree sexual abuse of a student in the Circuit Court of Lincoln County. Subsequently, in May of 2014, petitioner was sentenced to a term of thirty-six months of probation and a period of fifty years of supervised release. In May of 2015, the Board held a meeting and voted to terminate petitioner's retirement benefits and membership in the West Virginia Teacher's Retirement System ("Retirement System") for rendering less than honorable service.[1] The Board sent written notice to petitioner informing him that the Board voted to terminate his retirement benefits because he rendered less than honorable service. The Board's vote to terminate petitioner's retirement benefits was based on his first-degree sexual abuse conviction. In a June of 2015 letter to the Board, petitioner requested a judicial determination regarding the Board's decision that he rendered less than honorable service.

         In August of 2015, the Board filed a petition with the Circuit Court of Kanawha County seeking a judicial determination as to whether petitioner rendered less than honorable service based upon his first-degree sexual abuse conviction. By final order entered on March 30, 2016, the circuit court affirmed the Board's decision to terminate petitioner's retirement benefits and membership in the Retirement System for rendering less than honorable service. It is from this order that petitioner now appeals.

         We have previously held that "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). We have also held that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, W.Va. Consl. Pub. Ret. Bd. v. Weaver, 222 W.Va. 668, 671 S.E.2d 673 (2008).[2]

         Petitioner first argues that the circuit court abused its discretion in affirming the Board's denial of his retirement benefits. Petitioner contends that West Virginia Code §§ 5-10A-1 through 5-10A-10 unconstitutionally impair his contractual rights. As such, he contends that only a portion of his pension should be terminated because the less than honorable service "did not occur until years after his pension had vested." Specifically, petitioner argues that his pension was already vested on the date of his criminal conviction and, thus, "any such contact or activity that occurred thereafter cannot be used to defeat" the vested portion of his pension. We disagree.

         The parties to the instant proceeding do not dispute that petitioner rendered less than honorable service; rather, the parties disagree as to what portion of his pension should be terminated as a result. West Virginia Code § 5-10A-9 provides, in relevant, part, that the

right to receive any benefit under a retirement plan, which right shall vest on or after the effective date of this article, is hereby conditioned upon the full compliance and observance of the provisions hereof and the rendering of honorable service throughout the service in public employment . . . in respect of which such benefit is payable.

         Regarding honorable service, we have previously stated that "a 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, in part, West Va. Pub. Employees Ret. Sys. v. Dodd, 183 W.Va. 544, 396 S.E.2d 725 (1990).

         We previously addressed the constitutionality of the statute in question and the issue of contract impairment in Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1994). In Booth, petitioner, a sheriff, argued that he should receive at least a portion of his pension for the services he rendered before violating the law and that the 1976 enactments of West Virginia Code §§ 5-10A-1 through 5-10A-10 unconstitutionally impaired his pension rights under his employment contract. We held that petitioner's contract was not impaired because "the implicit condition of honorable service at all times was never satisfied and, therefore, his contract rights to the pension never fully vested." Id. at 334, 456 S.E.2d at 178. This Court also specifically held 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, Booth, 193 W.Va. at 326, 456 S.E.2d at 170. In this case, even though petitioner worked for many years before he was convicted of first-degree sexual abuse, his retirement benefits never vested because he failed to perform honorably during his public service throughout his employment as a school bus driver, as required by West Virginia Code § 5-10A-9. Thus, the Board and the circuit court were correct in terminating petitioner's retirement benefits and membership in the Retirement System for rendering less than honorable service.

         Petitioner next argues that West Virginia Code § 5-10A-2 provides for a disproportionate penalty and cruel and unusual punishment. Petitioner claims that the statute is unconstitutional because it disproportionately results in a complete forfeiture of his retirement benefits despite the vast majority of "honorable" service rendered.[3] We have previously addressed the constitutionality of the ...


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