Opinion
C.A. No. P97-0236.
June 29, 1999
Appeal from the Superior Court of Providence County.
DECISION
The plaintiff, Paul E. Romano (Romano), appeals a decision of the Retirement Board of the Employees' Retirement System of the State of Rhode Island (Board) upholding a decision of Hearing Officer Elaine M. Gianinni, Esq. (Gianinni). Gianinni found that Romano could not collect a pension from the State Employees' Retirement System while he was simultaneously working full time as an employee and contributing member of the Municipal Employees' Retirement System under R.I.G.L. § 36-10-36. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
FACTS AND TRAVEL
Romano was an engineer with the Rhode Island Department of Transportation for twenty-five years. In 1989, the Rhode Island General Assembly announced an early retirement plan for state employees. At about that same time, Halsey Herreshoff (Herreshoff), then the Administrator of the Town of Bristol, offered Romano a position as Director of Public Works for that municipality. Pursuant to a booklet distributed by the Employees' Retirement System of the State of Rhode Island, Romano then met with State Retirement Counselor Elaine Drapeau to determine whether future employment with a municipality would adversely affect his state pension benefits. Drapeau informed Romano that such post retirement employment was allowed. Additionally, Romano contacted Donald Hickey, then the Executive Director of the Employees' Retirement System, regarding this matter. Hickey sent a letter dated July 25, 1989 (the Hickey letter) to Herreshoff stating in pertinent part:
"Since the municipal system is a different system and only administered by us, there is no prohibition against a state retiree working for and belonging to a municipal system."
In reliance upon this letter, Romano retired from his state job and began working as the Director of Public Works for the Town of Bristol almost immediately. For nearly seven years thereafter, Romano collected his state pension while he simultaneously worked full time for the Town of Bristol. With the exception of a six-month probationary period, Romano has also been contributing to the Municipal Retirement System since he began working for the municipality.
In a letter dated January 2, 1996, the Employees' Retirement System informed Romano that under R.I.G.L. § 36-10-36, he was ineligible to receive a retirement allowance from the State of Rhode Island while he simultaneously enjoyed full-time employment by a municipality. The letter stated in pertinent part:
"It has come to our attention that you are contributing to the Municipal Employees Retirement System. According to R.I.G.L. 36-10-36, you are ineligible to participate . . .
If you choose to be employed, you are only allowed to work seventy-five (75) full days or one hundred fifty half days (150) a year."
Romano was further informed that he was not eligible for any municipal retirement allowance based on his service with the Town of Bristol since 1989.
Romano contested this determination, and on November 19, 1996, an administrative hearing was held before Gianinni. Gianinni found that although the Hickey letter did give state employees "permission" to obtain post-retirement employment with a municipality without penalty, it did not state that an employee can work for a municipality and concurrently collect a state system retirement benefit. See Decision of Hearing Officer, In the Matter of Romano v. Employees' Retirement System, November 18, 1996, at 6. Giannini explained that "Romano is free to work for the Town of Bristol and enjoy the benefits of that employment." Id. However, she concluded that, "[h]e is not entitled to collect his retirement from the State System while doing so. That is not a 'penalty' as characterized by Mr. Romano, but rather, a benefit of having been eligible for the 1989 special retirement package." Id.
Appealing Gianinni's decision, Romano argued before the Board that because he had relied upon statements from both a state retirement counselor and the Executive Director of the Employees' Retirement System, his situation called for an equitable remedy. The Board determined that the narrow issue before it was whether the Board even has authority to fashion an equitable remedy for Romano in clear derogation of statute. See Transcript of Hearing, In the Matter of Paul Romano v. Employee Retirement System, December 18, 1996, at 11. Ruling against Romano, the Board found that "where there is a clear statutory mandate, [the Board] must comply with the statutory mandate, and . . ., no governmental official can in fact waive that mandate." Id. at 12.
The Plaintiff timely appealed the decision of the Board. On April 15, 1997, the Superior Court, Israel, J. presiding, ordered a Temporary Restraining Order which states in pertinent part:
"Pursuant to the Administrative Procedures Act, the Retirement Board of the Employees' Retirement System of the State of Rhode Island is hereby temporarily enjoined and restrained from stopping any and all retirement benefits to which the Plaintiff, Paul E. Romano, is entitled, including but not limited to, Plaintiff's monthly retirement benefit with any and all increases and/or enhancements and health insurance coverage pending further order of the Court . . .
Should the Plaintiffs action be unsuccessful, the Plaintiff may be obligated to reimburse the State of Rhode Island." See Order of Judge Israel, P97-0236. April 22, 1997, at 1.
STANDARD OF REVIEW
The review of a decision of the Board by this Court is controlled by R.I.G.L. § 42-35-15(g), which provides for review of a contested agency decision:
"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 may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant 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."
This section precludes a reviewing court from substituting its judgment for that of the agency in regard to the credibility of witnesses or the weight of evidence concerning questions of fact. Costa v. Registry of Motor Vehicles, 543 A.2d 1307, 1309 (R.I. 1988); Carmody v. R.I. Conflict of Interest Commission, 509 A.2d 453, 458 (R.I. 1986). Therefore, this Court's review is limited to determining whether substantial evidence exists to support the Commission's decision.
Newport Shipyard v. Rhode Island Commission for Human Rights, 484 A.2d 893 (R.I. 1984). "Substantial evidence" is that which a reasonable mind might accept to support a conclusion. Id. at 897, quoting Caswell v. George Sherman Sand Gravel Co., 424 A.2d 646, 647 (R.I. 1981). This is true even in cases where the court, after reviewing the certified record and evidence, might be inclined to view the evidence differently than the agency. Berberian v. Dept. of Employment Security, 414 A.2d 480, 482 (R.I. 1980). This Court will "reverse factual conclusions of administrative agencies only when they are totally devoid of competent evidentiary support in the record." Milardo v. Coastal Resources Management Council, 434 A.2d 266, 272 (R.I. 1981). However, questions of law are not binding upon a reviewing court and may be freely reviewed to determine what the law is and its applicability to the facts. Carmody v. R.I. Conflicts of Interests Commission, 509 A.2d at 458. When more than one inference may be drawn from the record evidence, the Superior Court is precluded from substituting its judgment for that of the agency and must affirm the agency's decision unless the agency's findings in support of its decision are completely bereft of any competent evidentiary support. Rocha v. State Public Utilities Comm'n, 694 A.2d 722, 726 (R.I. 1997).
ROMANO IS IN VIOLATION OF THE PROVISIONS OF R.I.G.L. § 36-10-36
Section 36-8-3 of the Rhode Island General Laws provides in relevant part that,
"The general administration and the responsibility for the proper operation of the retirement system and for making effective the provisions of chapters 8-10 of this title are hereby vested in a retirement board. The retirement board shall, from time to time, establish rules and regulations for the administration and transaction of the business of the retirement system. . . . The retirement board shall also perform such other functions as are required for the execution of chapters 8-10 of this title."
R.I.G.L. § 36-10-36, entitled "Post retirement employment," provides in relevant part'
"Any member who has retired under the provisions of titles 16, 36, or 45 may be employed or reemployed by any municipality within the state for a period of not more than seventy-five (75) working days or one hundred fifty (150) half days with half pay in any one calendar year without any forfeiture of or reduction of any retirement benefits and allowances the member is receiving or may receive as a retired member. Pension benefits shall be suspended whenever this period is exceeded."
Romano argues that the Board, upon hearing his appeal, erroneously found that the Administrative Procedures Act gives it no authority to fashion an equitable remedy to allow him to continue receiving his state retirement benefits while working full time for a municipality. Romano notes that "[t]he Retirement Board is endowed with a broad grant of authority over the State Retirement System and, therefore, possesses the authority to conduct hearings to investigate the propriety of an employee's pension" under R.I.G.L. § 36-8-3. Romano claims that because the Board initially determined that he could receive state retirement benefits while simultaneously working for a municipality, it also retains the power to reconsider that very same decision.
It should be noted that the file does not contain a memorandum from the Board.
Romano relies on two Rhode Island Supreme Court decisions. InLouis A. Perrotti v. Anthony J. Solomon, et al., the Court held that "unless specifically prohibited by the enabling statute, the power to render a decision in the first instance embodies the power to reconsider that decision." 657 A.2d 1045, 1048 (R.I. 1995). In In Re Denisewich, the Court recognized that an administrative agency had the inherent power to reconvene and reconsider their prior decision in light of new evidence having become available. 643 A.2d 1194 (R.I. 1995). Section 36-8-3, however, does not specifically mention any such power. Rather, the section merely leaves responsibility "for the proper operation of the retirement system" with the board. Moreover, the power to reconsider an already rendered decision is not at issue in the instant case. At issue is whether the Board at any time had the authority to apply an equitable remedy where the statute makes no such provision.
Romano further argues that the broad power given to the Board in R.I.G.L. § 36-8-3 encompasses authority to fashion an equitable remedy for petitioners. Romano's reliance is misplaced. In Perrotti, the Supreme Court stated,
"In enacting § 36-8-3, the General Assembly has endowed the retirement board with the authority to 'administer' and 'operate' the retirement system. The retirement board also possesses the power to 'establish rules and regulations' for the administration and transaction of the retirement system and may 'perform other such functions as are required' for the administration of the retirement system." Perrotti at 1048.
Section 36-8-3 is an extremely broad statute which applies to Chapters 8, 9 and 10 of Title 36 in their entirety. The statute, entitled "Responsibility for administration — Rules and regulations," is an extremely general one, and does not grant any specific powers to the board. While the court in Perrotti found the language of this provision sufficiently broad so as to give the board authority to determine pension eligibility, said language is not so broad as to allow the board to override the General Assembly. Id.
Before the Board, Romano argued that in spite of R.I.G.L. § 36-10-36, the Labor Board has authority to fashion an equitable remedy. See Transcript of Hearing, Paul E. Romano v. Employees' Retirement System, December 18, 1996. It is clear from the statute, however, that the Retirement Board's discretion in this matter is limited to the language of § 36-10-36.
In Rhode Island, it is well settled that in order to effectuate the legislature's intent, our Supreme Court examines a statute in its entirety and gives the words their plain and ordinary meaning. In Re Falstaff Brewing Corp., 637 A.2d 1047, 1049 (R.I. 1994). When a statute has a plain, clear and unambiguous meaning the legislature's intent is gleaned from the plain and literal language contained therein. Parkway Associates v. Godfrey, 688 A.2d 1289, 1294 (R.I. 1997). If a mechanical application of a statutory definition produces an absurd result or defeats the legislature's intent our Supreme Court will look beyond mere semantics and give effect to the purpose of the act.In Re Falstaff Brewing Corp., 637 A.2d at 1050. The primary task in construing a statute is to attribute to the enactment the meaning most consistent with its policies and with the obvious purposes of the legislature. Id. "Every word, sentence or provision in a statute is presumed to have some useful purpose and is intended to have some force and effect." Gross v. State of Rhode Island, Division of Taxation, 659 A.2d 670, 671 (R.I. 1995).
On its face, the statute makes clear that any retired state employee who works for a municipality for a period in excess of seventy-five days in one calendar year will have his pension benefits suspended. Accordingly, the Retirement Board lacks discretion in these matters.
Romano additionally requests reasonable costs and attorney's fees pursuant to R.I.G.L. 42-92, entitled "Equal Access to Justice for Small Businesses and Individuals." This act was created to lessen the burden placed upon persons by "the arbitrary and capricious decisions of administrative agencies."Taft v. Pare, 536 A.2d 888, 892 (R.I. 1988). Section 42-92-3 of said act, entitled "Award of reasonable litigation expenses," provides recovery for prevailing parties if the court finds that the agency was not "substantially justified in its actions leading to the proceedings and in the proceeding itself." Id. at 892. Here, however, Romano cannot recoup any of his costs and attorney's fees since he has not prevailed.
CONCLUSION
After reviewing the entire record, this Court finds that the decision of the Board constitutes neither an error of law nor an abuse of discretion, and that the rights of Petitioner Paul E. Romano have not been prejudiced. The Board had substantial evidence before it to conclude that R.I.G.L. § 36-10-36 does not permit an administrative board to fashion an equitable remedy. Accordingly, the Board's decision is affirmed.
This Court need not consider Counts II and III, which are not presently at issue. Since Petitioner will not prevail as to Count I, no additional material issues exist between the parties as to the remaining counts. Therefore, a Rule 56 Summary Judgment Motion, if filed, would dispose of these remaining counts. The April 15, 1997 Temporary Restraining Order and Stay of Execution are hereby vacated. This Court notes that this case has languished for over two years since the restraining order was granted, with no action taken by the state's attorney. During that time, Romano has continued to receive retirement benefits to which he was not entitled under R.I.G.L. § 36-10-36. Accordingly, the Retirement Board of the Employees' Retirement System may now stop any and all retirement benefits currently being paid to Romano and order him to reimburse the State of Rhode Island for any benefits paid him to which he was not entitled. Romano's request for reasonable costs and attorney's fees pursuant to R.I.G.L. § 42-92-3 is denied.
Counsel shall submit an appropriate Judgment for entry in accordance herewith, within ten days, and is urged to submit a Rule 56 Motion for Summary Judgment to dispose of the remaining Counts II and III.