Summary
granting writ of mandamus ordering OPERS to pay retroactive disability benefits
Summary of this case from Mathews v. Ohio Pub. Emps. Ret. Sys.Opinion
No. 33752
Decided April 21, 1954.
Public Employees Retirement System — Disability retirement allowance — Statutes governing right to — Right not modified or denied by subsequent legislation — Section 486-63, General Code, not applicable, when — Retired member's right to pursue other employment.
1. The right of a member of the Public Employees Retirement System to disability retirement allowance is governed by the statutes in force when such member becomes eligible for and is granted such retirement, and that right can not be reduced or denied by subsequent legislation.
2. The provisions in Section 486-63, General Code, relating to employment of a member of the Public Employees Retirement System who is receiving a disability allowance, which section became effective June 5, 1947, do not apply to or affect the rights of a member who was granted disability retirement allowance in February 1945.
3. The statutes in effect February 15, 1945, did not prohibit a member of the Public Employees Retirement System from pursuing other gainful employment while receiving disability retirement allowance.
IN MANDAMUS.
The relator was employed as a clerk in the Municipal Court and in other capacities by the city of Cleveland for more than 30 years prior to 1945. On February 15, 1945, he, as a member of the Public Employees Retirement System, was granted a disability retirement allowance effective April 1, 1945, pursuant to the provisions of Sections 486-62 and 486-63, General Code, as then in force. Following his retirement the relator moved to Miami, Florida, where he has continued to live. During the period from 1945 to 1952 he submitted to medical examinations as required by statute. Upon each of such examinations he was certified as suffering from psoriasis which resulted in physical disability to perform his usual duties.
The relator procured part-time employment by the city of Miami as a safety patrolman. He was paid the full amount of his disability retirement allowance (ultimately at the rate of $81.72 per month) until March 1952, at which time he was removed from the disability annuitant rolls by the Retirement Board of the Public Employees Retirement System because he was so employed in Miami.
On March 11, 1953, the relator made application for a commuted superannuation retirement allowance under the provisions of Section 486-61, General Code (Section 145.34, Revised Code). At the time this application was made, the relator was not employed and the record does not indicate any subsequent employment. The Retirement Board concedes that the relator is entitled to the commuted superannuation allowance which he seeks but the board asserts that the relator illegally drew disability retirement allowance from April 1, 1949, to March 1, 1952, in the total sum of $2,860.20, which amount the Retirement Board insists should be restored to the retirement fund either in cash or as a credit against the superannuation retirement allowance. Upon refusal to pay the relator the full amount due him as commuted superannuation allowance without the deduction claimed by the board, this action in mandamus was instituted in this court by the relator to enforce payment.
Messrs. Hollander, Zelman Gold, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Joseph S. Gill, for respondent.
The controlling question before this court is whether the relator was legally entitled to receive disability retirement allowance from April 1, 1949, to March 1, 1952, while employed by the city of Miami, Florida.
The respondent relies upon the provisions of Section 486-63, General Code, as amended (122 Ohio Laws, 192, 204), effective June 5, 1947. That section specified the amount of the disability retirement allowance to which a member of the retirement system was entitled. The last paragraph of that section then provided:
"Should any employer as defined in this act employ or re-employ any member who is receiving a disability allowance, such employer shall file a notice of employment with the Retirement Board designating the date of employment. In case of employment of a member receiving a disability allowance without having filed the aforesaid notice such employer shall pay from funds provided by the employer to the Retirement Board an amount equal to the portion of the disability retirement allowance paid to such member subsequent to the date of employment."
It is contended by the respondent that the intent and effect of enacting the provision above quoted were to entirely forbid one from being gainfully employed while drawing disability retirement allowance. With that position this court can not agree. Undoubtedly, the General Assembly intended to restrict to some extent the right of a disabled employee to draw disability retirement allowance while being otherwise employed, but, it is well settled that the General Assembly could not, by legislation passed in 1947, deny an employee rights to compensation which had already vested. The relator was retired February 15, 1945, on account of disability. His rights were vested as of that date in accordance with the statutes then in force. Section 486-62, General Code, as in effect in February 1945, was enacted in March 1937 (117 Ohio Laws, 57, 66). Section 486-63, General Code, in the form in which that statute existed in February 1945, was passed March 24, 1943 (120 Ohio Laws, 40, 42). Neither of those sections contained any provision restricting the right of employment of one receiving disability retirement allowance. Inasmuch as the rights of the relator to disability retirement allowance which had vested on or prior to February 15, 1945, could not be denied or restricted by subsequent legislation ( State, ex rel. Hanrahan, v. Zupnik et al., Board of Trustees, ante, 43), it is unnecessary to discuss the probable effect of the above-quoted revision of Section 486-63, General Code, which became effective June 5, 1947, with respect to those granted disability retirement allowance subsequent to that date.
Notwithstanding the above legislative history, the respondent argues that the spirit and intent of the entire act containing the sections in issue are such as to deny the right of one drawing disability retirement allowance to become otherwise gainfully employed. In support of that position we are referred to Sections 486-60 and 486-61, General Code, which provide for superannuation and commuted superannuation retirement allowances. In both those sections the right to receive such allowances is conditioned by the following provision:
"So long as such member shall not hold any remunerative office or employment in any federal, state, county or local government * * *."
There was no such restrictive provision with respect to eligibility for disability retirement allowance. The above restrictive provision is broad and definite. Under it the relator could not qualify for or draw commuted superannuation retirement allowance while employed by the city of Miami, but that question is not in issue as he had ceased that employment before he applied for the commuted superannuation retirement allowance.
It is our conclusion that the right of relator to disability retirement allowance was vested in February 1945 in accordance with the statutes then in force; and that under those statutes the relator had the legal right to draw the disability retirement allowance during the period from April 1, 1949, to March 1, 1952 (which concededly amounted to $2,860.20), and at the same time be gainfully employed by the city of Miami. The respondent, therefore, does not have the right to demand reimbursement of the amount of disability retirement allowance paid to the relator during that period and the relator is under no obligation to restore that amount or any part thereof to the respondent either in cash or as credits against his commuted superannuation retirement allowance. The respondent is under a clear legal duty to pay to the relator the full amount of commuted superannuation retirement allowance commencing April 1, 1953, without deductions because of the employment of the relator in Florida prior to that date.
The writ of mandamus is allowed.
Writ allowed.
WEYGANDT, C.J., TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.