Opinion
HHBCV156030908S
01-04-2016
Marilyn Cruz-Aponte v. State Employees Retirement Commission
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge, Superior Court.
The sole issue in this administrative appeal is whether General Statutes § 7-438(b) entitles a retired municipal employee to continue to receive a retirement pension while reemployed 1) with a municipality that participates in the municipal employees retirement system but 2) in a position that does not participate in the system. The defendant state employees retirement commission (commission), in a declaratory ruling, held that the statute does not entitle an employee in this situation to receive a pension during the time of reemployment. For the following reasons, the court affirms the commission and dismisses the appeal.
I
In its August 20, 2015 decision and declaratory ruling, the commission found the following facts. (Return of Record (ROR), pp. 111-23.) The plaintiff, Marilyn Cruz-Aponte, worked for the town of New Britain from 1986 until her retirement in January 2008, ultimately as administrative services officer for the public works department. At the time of her retirement, the plaintiff had accrued approximately twenty-two years and one month of retirement service credit. Ordinarily, the plaintiff would have begun to receive a pension when she reached age 55 which, in her case, was May 23, 2012.
Later in 2008, the plaintiff became assistant to the director of the public works department for the city of Hartford. Although Hartford is a municipality that, as a general matter, participates in the municipal employees retirement system (MERS), the plaintiff's specific position does not participate in the system.
In August 2013, the plaintiff applied for retirement benefits. At first, the commission gave the plaintiff conflicting advice as to whether she could receive a retirement pension. In October 2014, the commission took the position that the plaintiff could not receive a pension as long as she worked--in any position--for a participating municipality such as Hartford.
The commission nevertheless granted the plaintiff a hearing on the issue, at which she presented her position. In February 2015, the commission voted to affirm its earlier position denying the plaintiff a retirement pension while she worked for Hartford. The plaintiff next filed a petition for a declaratory ruling on the issue. In its August 20, 2015 decision, the commission declined to change its position.
General Statutes § 5-155a(g) gives the commission discretion as to whether to hold a hearing: " The commission may hold hearings when deemed necessary in the performance of its duty. The hearings shall be governed by rules and regulations of the commission and the commission shall not be bound by technical rules of evidence." Although the proceedings before the commission were not a " contested case" under the Uniform Administrative Procedure Act because § 5-155a(g) does not require a hearing; see General Statutes § 4-166 (4); Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 163-65, 927 A.2d 793 (2007); the court nonetheless has jurisdiction because the plaintiff appeals from a " final decision" as defined by General Statutes § 4-166(5), which includes " a declaratory ruling issued by an agency pursuant to section 4-176 . . ." such as the one rendered here. See General Statutes § § 4-166(5)(B), 4-183(a); Ahern v. State Employees Retirement Commission, 48 Conn.App. 482, 491-92 n.2, 710 A.2d 1366, cert. denied, 245 Conn. 911, 718 A.2d 16 (1998) (Lavery, J., concurring).
The plaintiff raised, and the commission rejected, claims involving statutory construction, detrimental reliance, the due process clause, the equal protection clause, and a request for an evidentiary hearing. The sole ground pursued in this appeal is statutory construction. The court addresses some of the other claims in the decision released today in Maturo v. State Employees Retirement Commission, Superior Court, judicial district of New Britain, Docket No. CV14 6025838, (January 4, 2016).
Both in 2013 and 2015, the General Assembly enacted legislation that would have explicitly allowed persons in the plaintiff's position to collect retirement benefits while employed or reemployed by a participating municipality in a non-MERS participating position. See Public Acts 2015, No. 15-188; Public Acts 2013, No. 13-219. On both occasions--most recently on July 2, 2015--the Governor vetoed the bill. (Commission's brief, Exhibit B.)
The plaintiff now appeals from the commission's decision on the petition for a declaratory ruling.
II
Under the UAPA, General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
Our Supreme Court has stated that " [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . ." (Internal quotation marks omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 163, 931 A.2d 890 (2007). " Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse if its discretion . . . [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts . . . [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . Cases that present pure questions of law, however, invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . . [When the agency's] interpretation has not been subjected to judicial scrutiny or consistently applied by the agency over a long period of time, our review is de novo." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-83, 77 A.3d 121 (2013). These principles apply fully to appeals from declaratory rulings. See MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 129-30, 136-37; Connecticut Business & Industry Ass'n., Inc. v. CHHC, 218 Conn. 335, 344, 589 A.2d 356 (1991).
III
A
The sole issue raised is the proper interpretation of General Statutes § 7-438(b). The court agrees with the plaintiff that, because the commission's interpretation has not been subjected to judicial scrutiny or consistently applied by the commission over a long period of time, the court's review is de novo. See Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. 281-83.
In analyzing the plaintiff's claim, the court must follow the rules of statutory construction. " When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . ." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. 283.
General Statutes § 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Prior to 1987, the criterion under § 7-438 for whether a retired municipal employee (or " member") could receive a retirement allowance upon reemployment with a municipality was whether the employee sought reemployment in the same " department or agency." Subsection (a) provided that a member could receive a retirement allowance unless reemployed by " the same department or agency." Subsection (b) provided that a member " shall receive no retirement allowance" if the member " again accepts employment from the same department or agency from which he was retired." General Statutes § 7-438 (Rev. to 1985.)
Public Acts 1987, No. 87-83 changed the criterion from " department or agency" to " participating municipality." For subsection (a), the Act provided that a member " shall continue to receive his retirement allowance" upon reemployment with " any municipality of this state other than a participating municipality." Public Acts 1987, No. 87-83, § 2. For subsection (b), the Act provided that a member " shall receive no retirement allowance" upon reemployment with " the same municipality from which he was retired or any other participating municipality . . ." Public Acts 1987, No. 87-83, § 2.
The legislative history reveals that the public act passed on consent in both chambers. See 30 H.R. Proc., Pt. 7, 1987 Sess., pp. 2257, 2438-39; 30 S. Proc., Pt. 4, 1987 Sess., pp. 1148-49, 1167-68.
Subsection (a) of § 7-438 now provides that if a retired MERS member " again accepts employment from this state or from any municipality of this state other than a participating municipality" the member shall continue to receive his retirement benefits but will not receive municipal retirement credit for his or her additional work. General Statutes § 7-438(a). There is no dispute that subsection (a) does not apply here, as Hartford is a " participating municipality."
Section 7-438(a) provides in full: " Any member retired under this part who again accepts employment from this state or from any municipality of this state other than a participating municipality, shall continue to receive his retirement allowance while so employed, and shall be eligible to participate, and shall be entitled to credit, in the state retirement system for the period of such state employment, but any such member shall not be eligible to participate or be entitled to credit in any municipal retirement system for the period of such municipal employment.
Subsection (b) of § 7-438 now provides: " If a member is retired under this part and again accepts employment from the same municipality from which he was retired or any other participating municipality, he shall be eligible to participate, and shall be entitled to credit, in the municipal employees' retirement system for the period of such municipal employment. Such member shall receive no retirement allowance while so employed except if (1) such employment is for less than twenty hours per week, or (2) his services are rendered for not more than ninety working days in any one calendar year, provided that any member reemployed for a period of more than ninety working days in one calendar year shall reimburse the Municipal Employees' Retirement Fund for retirement income payments received during such ninety working days." General Statutes § 7-438(b). The plaintiff claims an entitlement to a retirement allowance under this subsection."
Public Acts 2011, 11-252 amended subsection (b) to add the current subdivision (1) and exclude employment of under twenty hours per week from the prohibition on receiving a retirement allowance while employed by a participating municipality. Combined with the preexisting exception for work under ninety days in one year, subsection (b) essentially exempts part-time or temporary workers. These exemptions are not relevant here, as the plaintiff is in a full-time, permanent position.
The vetoed public acts passed by the General Assembly in 2013 and 2015 would have added a third exception to the restriction on receiving a retirement allowance in § 7-438(b) that applied if " (3) such member does not participate in the municipal employees' retirement system during the period of his or her reemployment." See Public Acts 2015, No. 15-188; Public Acts 2013, No. 13-219. Thus, these amendments would have explicitly allowed persons in the plaintiff's position to collect retirement benefits while employed or reemployed by a participating municipality in a non-MERS participating position.
B
The plaintiff contends that she should continue to receive her retirement allowance while employed by a participating municipality such as Hartford because she is not " so employed" under the second sentence of § 7-438(b). That sentence provides that " [s]uch member shall receive no retirement allowance while so employed . . ." She argues that " so employed" in the second sentence refers to the entire set of persons in the first sentence, which includes not only those retired members who, like the plaintiff, have " again [accepted] employment from the same municipality from which [she] was retired or any other participating municipality, " but who are also " eligible to participate, and shall be entitled to credit, in the municipal employees' retirement system for the period of such municipal employment." Because the plaintiff is in a nonparticipating position in Hartford and thus is not " eligible to participate [or] . . . entitled to credit, in the municipal employees' retirement system for the period of such municipal employment, " the plaintiff reasons that she is not " so employed" within the meaning of the second sentence and therefore not disqualified from receiving a retirement allowance.
The court rejects the plaintiff's interpretation. A plain reading of subsection (b) reveals that only the first part of the first sentence, which refers to employees who have " again [accepted] employment from the same municipality from which [she] was retired or any other participating municipality, " defines those persons who are " so employed" under the statute. The second part of the first sentence, which states that such persons " shall be eligible to participate and shall be entitled to credit, in the state retirement system for the period of such municipal employment, " does not define the class of employees covered by the subsection but rather identifies some of the benefits for which they are " eligible." Further, the second part of the first sentence uses the phrase " such municipal employment, " which is essentially synonymous with " so employed." Because of the word " such" in the phrase, it must refer to a preceding definition which, in this case, can only refer to the first part of the sentence. Thus, the better interpretation of the phrase " so employed" is that it refers to all persons employed by a participating municipality.
Perhaps of greater importance is the fact that the plaintiff's approach is not consistent with the rule that " [i]n determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . ." (Internal quotation marks omitted.) Reyes v. Bridgeport, 134 Conn.App. 422, 431, 39 A.3d 771, 776 (2012). That is, courts presume " that the legislature, in amending or enacting statutes, [has] . . . created a harmonious and consistent body of law . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010). The scheme of the statute, as discussed, is that subsection (a) refers to members who " shall continue to receive [a] retirement allowance" during reemployment in nonparticipating municipalities, while subsection (b) refers to employees who " shall receive no retirement allowance" while reemployed in participating municipalities. The plaintiff contends that she is entitled to continue to receive a retirement allowance. Yet she indisputably does not fit within subsection (a) because she is working for a participating municipality. If she is correct that she also does not fit within subsection (b) because it does not apply to nonparticipating positions, then she--and many persons like her--fall completely outside of the statute. The plaintiff's stance would mean that, contrary to the rules of statutory construction, the legislature in 1987 did not provide a comprehensive answer to the question of whether and when a municipal retiree can receive a retirement allowance upon reemployment in municipal service. Id. The plaintiff's position, in other words, does not " render a reasonable overall interpretation" to the statute. Reyes v. City of Bridgeport, supra, 134 Conn.App. 431.
The court's interpretation does not render meaningless the phrase in subsection (b) providing that the member " shall be eligible to participate and shall be entitled to credit, in the state retirement system for the period of such municipal employment . . ." This phrase literally applies only to those members who become reemployed in participating positions and thus qualify for continued retirement credit. The phrase does not exclude members who become reemployed in nonparticipatory positions from the applicability of the subsection.
The plaintiff's position is inconsistent with a coherent interpretation of the whole statute in yet another way. Subsection (a) also uses the phrase " so employed." See note 5, supra . Because the phrase " so employed" in subsection (a) is not preceded by a phrase similar to that in subsection (b) that authorizes an employee to receive retirement credit, the phrase " so employed" in subsection (a) necessarily refers only to the employment status, or type of employment, of the member: " [a]ny member retired under this part who again accepts employment from this state or from any municipality of this state other than a participating municipality . . ." Given the rule that the " meaning of a term, where practical, should be applied consistently throughout [an] act"; (internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 137, 717 A.2d 747 (1998); it follows that the identical phrase " so employed" in subsection (b) should also refer only to the employment status of the member, which is wholly defined by the first part of the first sentence. Thus, based on the language of the statute, because the plaintiff has " again [accepted] employment from . . . [another] participating municipality, " as provided in the first part of the first sentence of § 7-438 (b), she is " so employed" within the meaning of the second sentence of § 7-438(b). Accordingly, she " shall receive no retirement allowance . . ."
Finally, this result is neither absurd nor unworkable. See Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. 283. Rather, the legislature could reasonably have concluded that denying a retirement allowance to a member who is currently reemployed by a participating municipality, even when in a nonparticipating position, might conserve municipal resources, encourage more municipalities to participate in MERS, and insure that municipal retirement allowances go to retirees and not current municipal employees. In any event, in distinguishing between members who become reemployed by participating rather than nonparticipating municipalities, the legislature has merely exercised its power to " draw lines." Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 274, 957 A.2d 407 (2008) (Borden, J., dissenting.) " [T]he [c]onstitution presumes that even improvident decisions will eventually be rectified by the democratic process." Id. (quoting Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).
For all these reasons, the commission correctly ruled that, under the statute, a retired municipal employee cannot receive a retirement pension while reemployed with a participating municipality, regardless of whether or not the position entitles the member to retirement credit.
IV
The court affirms the commission's decision and dismisses the appeal. It is so ordered.