2009-658, Petition of Paul Lussier

Molan, Milner & Krupski, PLLC

(New Hampshire Retirement System)

No. 2009-658

Original

retirement in 2007 as a group II member of the NHRS. See petitioner worked as a police officer in the town of Derry (town) until his The following undisputed facts are supported by the record. The

period in 1994. We affirm. System (NHRS) that he was not entitled to service credit for a four-month of the board of trustees (board) of the respondent New Hampshire Retirement BRODERICK, C.J. The petitioner, Paul Lussier, seeks review of a ruling

Foley Law Office ___________________________

3, 1994, due to a non-work related disability, and had collected compensation November 1994. He had been out of work from August 2, 1994, to December aware that he had not received credit for service time for the month of (2001). In the course of preparing his retirement papers, the petitioner became

THE SUPREME COURT OF NEW HAMPSHIRE the respondent.

and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as question of law that we review de p. 2 arbitrarily, unreasonably, or capriciously.” Petition of Farmington Teachers Resolution of this petition requires statutory interpretation, which is a cannot legally or reasonably be made, or abused its discretion or acted authority or observance of the law, whereby it arrived at a conclusion which review is whether the board acted illegally with respect to jurisdiction, and (3) it failed to provide him with sufficient due process. “Our standard of requires that remedial legislation apply to acts occurring prior to its enactment; member’s retirement apply to the pension application; (2) New Hampshire law the language of RSA 100-A:5 requires that the law in place at the time of a The petitioner argues that the NHRS committed legal error because: (1)

The petitioner then filed his petition for a writ of certiorari. recommendation, and the petitioner unsuccessfully moved for reconsideration.

must apply. We disagree. out of work on disability to count as creditable service for group II members, current version of RSA 100-A:4, III-a (Supp. 2009), which allows for time spent a member has “at retirement.” Therefore, according to the petitioner, the 100-A:4, II (2001) mandates that it is the number of years of creditable service 2 “creditable service” be calculated “[u]pon service retirement,” and that RSA The petitioner first argues that RSA 100-A:5, II(b) requires that

the higher payments resulting from it. The board approved the credit, because the petitioner was not at fault for the error in his records or for payments already paid to the petitioner, including the months of disability hearings examiner also recommended that the board not recoup the annuity service, and recalculate his final benefit without such creditable service. The the town, remove any service credit granted to the petitioner from his creditable December 3, 1994, the board return all contributions made by the petitioner or hearings examiner recommended that for the period August 2, 1994, through disability, the petitioner was not entitled to benefits for those four months. The district employees to accrue service credit during periods of short-term Assoc., 158 N.H. 453, 455 (2009) (quotation omitted). statute in effect during the four months at issue in 1994 only allowed school Following a hearing, the hearings examiner concluded that because the

enclosed bill. The petitioner appealed this decision. reported to [the NHRS] for [Paul Lussier],” and requesting payment of the on reported wages for August 2, 1994 to December 03, 1994 that were not employer/member contributions and interest amounts due to an adjustment with a copy to the petitioner, enclosing a “revised statement for the of November 1994. On December 6, 2007, the NHRS sent a letter to the town, 2007, the petitioner wrote to the NHRS to request service credit for the month directly from the town’s insurance provider. By letter dated November 13, school p. 3 Notwithstanding the provisions of paragraph III of this section, any

1977, until its amendment in 1995, RSA 100-A:4, III-a provided: without pay of more than a month’s duration . . . .” From its enactment in year of service, but in no case shall it allow credit for a period of absence “shall fix and determine . . . how much service in any year is equivalent to one Regarding “creditable service,” RSA 100-A:4, III(a) provides that the board

service, as provided in RSA 100-A:4.” RSA 100-A:1, XVI (Supp. 2009). A member’s “creditable service” is defined as “prior service plus membership

excess of 40 years. multiplied by the number of years of his creditable service not in shall be equal to 2-1/2 percent of his average final compensation (2) A state annuity which, together with his member annuity,

his accumulated contributions at the time of retirement; and (1) A member annuity which shall be the actuarial equivalent of

service retirement allowance which shall consist of: allowed continued service credit in the retirement system until plan provided wholly or partially by the school district, shall be

(b) Upon service retirement, a group II member shall receive a

disability for which he is compensated by a salary continuance district member who is absent without salary, due to a

trustees . . . . retirement allowance upon written application to the board of completed 20 years of creditable service . . . may retire on a service (a) Any group II member in service who has attained age 45 and

The NHRS is a “qualified pension trust,” see

group II members, provides in part, retirement). RSA 100-A:5, II, setting forth the “service retirement benefits” for 100-A:5, I (group I service retirement); RSA 100-A:5, II (group II service based upon whether the member is a group I or group II member. See RSA members receive a “service retirement allowance” that is calculated, in part, of Concord Teachers, 158 N.H. 529, 530 (2009). Upon retirement, eligible by both member and employer contributions, see RSA 100-A:16, I-II. Petition

statutory scheme and not in isolation.” Id. (quotation omitted). not see fit to include. We interpret a statute in the context of the overall what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider meaning to the words used.” Id. (quotations and citation omitted). “We examining the language of a statute, we ascribe the plain and ordinary legislature as expressed in the words of a statute considered as a whole. When Assoc., 159 N.H. at 456. “We are the final arbiter of the intent of the payments were made mandatory rather than optional. p. 4 group I and group II NHRS members, and contributions on salary continuance system. Under the 1995 amendment, the benefit was made available to all continuance plan, was allowed continued service credit in the retirement for which he or she was compensated by an employer-provided salary amendment, only a school district member who was absent due to a disability, RSA 100-A:4, III-a (2001) (emphasis added). Thus, prior to the 1995

compensation for purposes of the retirement system.

salary continuance plan shall not be included as earnable

the period of such absence. Further, amounts received from such

the member’s employer shall not accrue any creditable service for continuance plan which has not been funded in whole or in part by to a disability for which the member is compensated by a salary Any group I or group II member who is absent without salary due

accordance with remittance procedures of the board of trustees.

section, any such contributions shall be remitted to the retirement system in contributions, if applicable, as are in effect from time to time. All required under RSA 100-A:16 and the required employer and state funding and shall be subject to the regular member contributions

Notwithstanding the provisions of paragraph III of this

was amended to provide: RSA 100-A:4, III-a (1990) (emphasis added). Effective July 1, 1995, the statute earnable compensation to the extent attributable to employer

Amounts received under such salary continuance plan are of the above elections, exceed 5 years.

no longer compensated by such salary continuance plan. until such time as the member returns to work, dies, retires or is the member so absents himself to the date on which he makes one

the member’s employer shall continue to accrue creditable service no case, however, shall the service credit, from the date on which a salary continuance plan which is funded wholly or partially by accordance with remittance procedures of the board of trustees. In salary due to a disability for which the member is compensated by contributions so paid shall be remitted to the retirement system in contributions in any proportion mutually agreed upon. The group I or group II member who is absent without in effect from time to time or that both such parties pay said district pays the required employer and state contributions as are RSA 100-A:16 and further provided that the member or the school continues to pay the regular member contributions required under

such time as he returns to work or retires provided the member absence from work occurred before the board had statutory authority to grant p. 5 Accordingly, the hearings examiner concluded that because the petitioner’s

Eldridge v. Eldridge

provision is meant to be applied prospectively.

unjust. procedural rights. In that case, retrospective application is not

affecting a substantive right creates a presumption that the firefighters. Absent a specific provision to the contrary, legislation

however, when the statute is remedial in nature or affects only

classifications; group I employees and group II police and

substantive rights. This presumption of prospectivity is reversed,

sponsored disability plan for 3 additional membership

there is a presumption of prospectivity when a statute affects

receive service credit for time out of work on an employerit be applied retrospectively. It creates a new, substantive right to The change in the wording of the statute . . . shows no intent that

the law should be given in advance of such change. Moreover, conduct and affairs accordingly, notice or warning of a change in presumed to know the law and, therefore, to organize his or her

As the hearings examiner correctly determined,

Common sense dictates that this be so. Because every person is 5

As a general rule, statutes are to be applied prospectively.

prospectively. the legislature intended that RSA 100-A:4, III-a as amended in 1995 apply Petition of Concord Teachers, 158 N.H. at 538-39. Therefore, we presume that retirement benefits pursuant to RSA chapter 100-A is a substantive right. previously held that the statutory entitlement of eligible public employees to

applies retroactively to 1994. other words, the petitioner contends that the statute as amended in 1995 upon [his] retirement and while his retirement application was pending.” In legislation” and, as such, applies to his case “because the law was effective The petitioner argues that RSA 100-A:4, III-a is “a remedial piece of

term disability, no creditable service accrued to him during those four months. During the period of time in 1994 that the petitioner was out of work on shortcreditable service that accrued over the course of the member’s employment. measure, “upon service retirement,” a group II member is only entitled to 100-A:5, II establishes that “creditable service” is calculated, as an accounting Pursuant to the plain language of the statutory provisions, while RSA p. 6 Affirmed

circumstances. The petitioner makes no argument that this statute does not apply under these

beneficiary was correctly entitled shall be paid.

the actuarial equivalent of the benefit to which such member or adjust as far as practicable the payments in such a manner that board of trustees shall have the power to correct such error, and to

have been entitled to receive had the records been correct, the

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred. beneficiary receiving from the system more or less than he would Should any change or error in the records result in any member or

legal argument or authority warrants extended consideration.” Appeal of claims nor off-hand invocations of constitutional rights without support by developed legal argument, and neither passing reference to constitutional review is not warranted for complaints regarding adverse rulings without argument, nor does he cite either the State or Federal Constitution. “Judicial. due process claim, however, is not supported by adequately developed legal 100-A:27 (2001): three additional months it determined were credited in error. The petitioner’s petitioner’s records, the board was authorized to correct it. Pursuant to RSA to his retirement pay, it was “inherently unfair” for the board to include the Moreover, we note that upon becoming aware of the error in the before the board was whether the month of November 1994 should be credited noticed for hearing.” According to the petitioner, because the issue he raised with sufficient due process “when it resolved his appeal on a legal basis not The petitioner’s final argument is that the NHRS failed to provide him

Omega Entm’t, 156 N.H. 282, 287 (2007).

service credit to him was erroneous. We affirm its conclusion. service credit to group II members on short-term disability, the granting of