STATE OF WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Petitioner
OLLIE D. HUNTING, Petitioner Below, Respondent
County No. 12-AA-1
petitioner herein and respondent below, State of West
Virginia Consolidated Public Retirement Board
("Retirement Board"), by counsel J. Jeaneen Legato,
appeals an order entered June 6, 2016, by the Circuit Court
of Lincoln County. By that order, the circuit court ruled
that a lump sum settlement payment by the Lincoln County
Board of Education ("BOE") to the respondent herein
and petitioner below, Ollie D. Hunting ("Mr.
Hunting"), by counsel David R. Tyson, should be
attributed to the year in which such settlement was paid,
i.e., 2009-2010, for purposes of calculating Mr.
Hunting's retirement benefits. On appeal to this Court,
the Retirement Board contends that such settlement payment
should be allocated to the years in which Mr. Hunting earned
the wages represented by the settlement.
our review of the parties' arguments, the appendix
record, and the pertinent authorities, we find that the
circuit court erred by ordering that Mr. Hunting's
settlement proceeds should be attributed solely to the year
in which such settlement was paid to and received by Mr.
Hunting because this calculation method results in a spike in
Mr. Hunting's income for that year and is prohibited by
the plain language of W.Va. Code § 18-7A-3(12) (2009)
(Repl. Vol. 2012). Accordingly, we reverse the circuit
court's June 6, 2016, order and remand this case for
reinstatement of the Retirement Board's March 1, 2012,
order allocating Mr. Hunting's settlement payment to the
years in which he earned the salary represented thereby.
Because this case does not present a new or significant issue
of law, and for the reasons set forth herein, we find this
case satisfies the "limited circumstances"
requirement of Rule 21(d) of the West Virginia Rules of
Appellate Procedure and is proper for disposition as a
Hunting, a retired former employee of the BOE, has a long
history of filing grievances against the BOE seeking wages he
claims he did not receive due to alleged miscalculations that
resulted in the underpayment of his wages. Several of these
grievances, spanning employment years 1996-2001, were settled
in 2009; the BOE agreed to pay Mr. Hunting a lump sum of $70,
000,  and Mr. Hunting agreed to dismiss certain
other claims against the BOE. The circuit court entered an
order memorializing this settlement and dismissing the
subject claims on September 2, 2011.
1, 2011, Mr. Hunting retired from his position as Attendance
Director and sought retirement benefits from the Teachers
Retirement System. Mr. Hunting instituted the instant
proceeding when he discovered that the aforementioned
settlement, which he received during the 2009-2010 school
year, had not been counted as income for that year as he and
the BOE apparently had agreed; instead, the Retirement Board
attributed such earnings to the employment years in which
they would have been earned but for the alleged underpayment
of Mr. Hunting's wages. Following an administrative
hearing, the Retirement Board issued a decision on March 1,
2012, confirming that such wages should be attributed to the
years in which they would have been earned, rather than
counting them as a lump sum payment of wages in the year in
which the settlement was accomplished.
order entered June 6, 2016, the Circuit Court of Lincoln
County reversed the Retirement Board and ruled that the wage
portion of the parties' settlement should be calculated
as wages for the year in which the settlement was paid,
i.e., 2009-2010, based upon the parties' intent
at the time they entered the settlement agreement, over which
the same circuit court judge had presided. From this ruling,
the Retirement Board appeals to this Court.
sole issue presented for our consideration and determination
in this case is whether the circuit court erred in reversing
the Retirement Board's ruling wherein it allocated the
wage portion of Mr. Hunting's lump sum settlement payment
to the years in which such wages would have been earned but
for the alleged underpayment thereof. We previously have held
[o]n appeal of an administrative order from a circuit court,
this Court is bound by the statutory standards contained in
W.Va. Code § 29A-5-4(a) and reviews questions of law
presented de novo; findings of fact by the
administrative officer are accorded deference unless the
reviewing court believes the findings to be clearly wrong.
Syl. pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474
S.E.2d 518 (1996). Moreover, with specific regard to the case
sub judice, "[i]n cases where the circuit court
has amended the result before the administrative agency, this
Court reviews the final order of the circuit court and the
ultimate disposition by it of an administrative law case
under an abuse of discretion standard and reviews questions
of law de novo." Syl. pt. 2, id.
of the instant matter turns upon the statutory language
governing the calculation of an employee's salary for
retirement purposes. Pursuant to W.Va. Code §§
18-7A-26(c)(1-2) (2009) (Repl. Vol. 2012),  retirement
benefits of a member of the State Teachers Retirement System
are calculated as follows:
Upon establishment of eligibility for a retirement allowance,
a member shall be granted an annuity which shall be the sum
of the following, subject to reduction if necessary to comply
with the maximum benefit provisions of Section 415 of the
Internal Revenue Code and section twenty-eight-a [§
18-7A-28a] of this article:
(1) Two percent of the member's average salary multiplied
by his or her total service credit as a teacher. In this
subdivision "average salary" means the average of
the highest annual salaries received by the member during any
five years contained within his or her last fifteen years of
total service credit . . .;
(2) The actuarial equivalent of the voluntary deposits of the
member in his or her individual account up to the time of his
or her retirement, with regular interest.
See also W.Va. Code § 18-7A-3(5) (2009) (Repl.
Vol. 2012) (defining "average final salary"). A
retired employee's "average salary" is
determined by reference to his "gross salary" for
the years in question. W.Va. Code §
18-7A-3(12) defines "[g]ross ...