1. Administrative Law--final agency decision--standard of review--de novo
The trial court properly applied the de novo standard in its review of a final agency
decision of the Board of Trustees Local Governmental Employees Retirement System (Board)
concluding that petitioner was not entitled to disability retirement benefits for the months of
March 1997 and October 1997 through May 1999, because: (1) allegations that the tribunal used
an improper form of review are questions of law, and not fact; and (2) petitioner made allegations
of errors of law with respect to every conclusion of law made by the Board.
2. Venue--change--lack of jurisdiction--no prejudice
Although the trial court of Durham County erred by denying the Board of Trustees Local
Governmental Employees Retirement System's (Board) motion to dismiss based on lack of
jurisdiction to order a change of venue to Wake County Superior Court, the error did not
prejudice the Board because the Board argued that petitioner should have filed her petition for
judicial review in either Wake County or the county in which she resided as required by N.C.G.S.
§ 150B-45.
3. Pensions and Retirement--disability benefits--continued service
The trial court erred by reversing respondent Board of Trustees Local Governmental
Employees Retirement System's (Board) final agency decision concluding that petitioner was not
entitled to disability retirement benefits for the months of March 1997 and October 1997 through
May 1999 when petitioner continued to work although in a part-time capacity based on her
disability, because: (1) our Legislature did not intend that an employee be allowed to continue
rendering service with the Retirement System and also receive disability benefits; (2) N.C.G.S. §
128-21(19) provides that in order for a member's retirement to become effective in any month,
the member must render no service at any time during that month; and (3) petitioner worked
more than 1,000 hours per year which effectively eliminated her from qualifying to receive a
disability retirement allowance, N.C. Admin. Code tit. 20, r. 2C.0802.
4. Estoppel--governmental agency--disability retirement
The trial court erred by finding that respondent Board of Trustees Local Governmental
Employees Retirement System was estopped from denying petitioner disability retirement
benefits when petitioner continued to work although in a part-time capacity based on her
disability, because: (1) a governmental agency is not subject to estoppel to the same extent as a
private individual or a private corporation; and (2) estoppel would override the statute's mandate
that no one can receive disability retirement benefits without being retired.
Lynn A. Andrews for petitioner-appellee.
Attorney General Michael F. Easley, by Assistant Attorney
General Robert M. Curran, for respondent-appellant.
HUNTER, Judge.
Respondent-appellant Board of Trustees Local Governmental
Employees Retirement System (“Board”) appeals the trial court's
reversal of its final agency decision in which the Board decided
Jane A. Wallace (“petitioner”) was not entitled to disability
retirement benefits for the months of March 1997 and October 1997
through May 1999. Having reviewed the whole record before us, we
reverse the trial court's ruling.
Facts pertinent to this appeal are as follows: Petitioner
“suffers from a bipolar, or manic-depressive, mood disorder.” In
1988, she gained full-time employment with Trend Mental Health,
Developmental Disabilities, and Substance Abuse Authority Center
(“Trend”) and “became a contributing member of the Retirement
system.” During the first several years with Trend, petitioner was
able to manage her illness with medication and received several
promotions, moving into a management-level position in 1994.
However, “[b]eginning in 1994, [petitioner]'s illness became
increasingly resistant to medication. During 1996, [she]
experienced considerable difficulties in performing her duties as
Substance Abuse Program Coordinator. By January of 1997, [she] was
unable to perform [her required] duties.” Thus in February 1997,
with the permission of her employer, petitioner left her full-time
management position and began working as a part-time substance
abuse counselor. This change was both a reduction in pay and a
demotion in position for petitioner.
Also in February 1997, petitioner submitted to her employer an
application for disability retirement. Under the section of the
application entitled “Employer Certification” was noted thatpetitioner “[h]as not terminated” and that “[e]mployee
is still
employ[ed].” Additionally, in forwarding petitioner's disability
application to the Retirement System, Trend's human resources
director, Rick Wagner, attached a cover letter to the application
in which he stated:
Jane Wallace was out of work for an extended
period of time due to health reasons but she
has returned to work on a reduced schedule.
She requested reclassification from 100% FTE
Substance Abuse Program Supervisor at $33,074
to 71% FTE Substance Abuse Counselor II
position at $22,391. This change reduces her
work time, salary, and supervisory
responsibilities and she feels that this may
qualify her for disability benefits. At this
time she has not indicated if she plans to
stop working due to her disability.
(Emphasis added.) In response, the Retirement System returned
petitioner's application attaching an “Information Checklist” which
stated that in order to “fully process [petitioner's] application
for retirement,” the application needed to be notarized and certain
payroll information, which had been requested on the form but was
missing, needed to be completed.
Petitioner sent a second disability retirement application to
the Retirement System on 4 March 1997, which included the
information requested by way of the “Information Checklist.”
Again, in the section entitled “Employer Certification,” the words
“full time” were inserted “[w]here the form asked for the
[petitioner's] last day of employment.” Additionally, in response
to the request to “[i]ndicate last day [petitioner] worked
(physically on job),” “2/8/97 [--] employee is still employed part
time in reduced capacity” was clearly written in the space
provided.
The Medical Board “approved [petitioner's] application for
disability retirement pursuant to N.C. Gen. Stat. § 128-27(c) andinformed the Petitioner of its approval by letter dated April 22,
1997.” Petitioner was then notified of her approval, to be
effective 1 April 1997. Thereafter, petitioner began receiving her
retirement benefits. Subsequently, “[o]n October 27, 1997, the
Retirement System notified Petitioner by letter that it was
suspending payment of her retirement benefits, because as a
contributing member of the system, she was not eligible under the
applicable statutes to also receive retirement benefits.” The
Retirement System further advised petitioner that she was to repay
the benefits she had already been paid between 1 April and 30
September 1997, which amounted to $7,236.48.
In response, petitioner filed for a contested case hearing
which was held before Administrative Law Judge (“ALJ”) Brenda
Becton. On behalf of the Board, Marshal Barnes, Deputy Director of
the Retirement System, testified that it is possible for a member
of the Local Government System to be approved for disability
retirement benefits and still work part-time
[p]rovided that they work less than 1,000
hours per year[ and] depend[ing] on where
they're working . . . . The statutes
governing disability retirement under the
Local System do provide a person to have a
certain amount of earnings without affecting
their benefit[ but] it does matter who they go
back to work with. If they remain working in
the Local Governmental System, they would have
to be in a position in which it did not
require participation [in the Retirement
System].
Mr. Barnes continued:
[T]he definition of retirement under the
statute requires a person to terminate covered
employment to be entitled to a retirement
allowance.
. . .
[Covered employment being defined a]s 1,000
hours or more per year in the Local
System. . . .
. . .
The current [benefit] booklet that I have is
dated July 1996, and on page 3, it says, “When
you join, you become a member of the
Retirement System on your date of hire if you
are a permanent employee of a participating
unit and your duties require that you work at
least 1,000 hours a year.”
Then, in response to whether the benefit booklet is “distributed to
all members of the Local Retirement System,” Mr. Barnes answered:
[W]henever we reprint the benefit booklet,
which is generally -- sometimes we do it
annually, but, generally, it's about every two
years that we update that booklet. And
whenever we update that, it is distributed to
each employer that participates in the System,
and we provide them more than enough copies to
distribute to their employees.
However in her recommended decision, upon making appropriate
findings Judge Becton concluded, among other things, that:
2. In the present case, it is clear that at
the time [petitioner] was approved for
disability, she was able to engage in
gainful employment, albeit in a limited
capacity and at reduced hours from her
usual occupation. The [applicable]
statute specifically provides that the
ability to engage in gainful employment
does not preclude the receipt of
disability benefits. . . .
Thus, Judge Becton recommended that the Final Decision of the
Board:
(1) reinstate [petitioner]'s disability
payments effective March 1, 1997, pursuant to
N.C. Gen. Stat. § 128-27(c)[;] (2) schedule
[petitioner]'s disability case for periodic
medical review, pursuant to N.C. Gen. Stat. §
128-27(e); and (3) any adjustment of
[petitioner]'s disability allowance which may
be required be prospective only, pursuant to
N.C. Gen. Stat. § 128-27(e)(1) and 20 NCAC
2C.0503.
Nevertheless, in its final agency decision, the Board rejected
the majority of Judge Becton's findings and conclusions, and
concluded, solely on the basis of N.C. Gen. Stat. § 128-21 and
N.C. Admin. Code tit. 20, r. 2c.0802 (September 1977), that: 3.
; At no time relevant to her
application for retirement has the Petitioner
ever “retired” as that term is defined in the
applicable statutes and rules. Therefore, at
no time has the Petitioner been qualified to
receive disability retirement benefits.
4. The Retirement System is authorized
to seek reimbursement from any member or
beneficiary respecting any overpayment of
benefits, pursuant to G.S. § 128-27(I).
Petitioner has erroneously been overpaid
benefits in the amount of $7,236.48.
Petitioner petitioned the superior court for judicial review on the
basis that: the Board had failed to review the entire record
before it, as required by law; that the Board had unlawfully gone
outside of the official record (evidenced by the fact that “some of
[its] findings . . . were not supported by any evidence contained
in the official record”); that statutory law quoted by the Board in
support of its final agency decision does not apply to the
situation at hand and does not address the petitioner's claim to
disability retirement benefits; that the Board's decision is
“[u]nsupported by substantial evidence admissible,” and; that the
Board's decision is arbitrary and capricious.
After making many detailed findings, including that Judge
Becton's findings of fact contained in her ALJ recommended decision
were supported by substantial admissible evidence of record, and
that the Board “did not consider the 'official record' as defined
by N.C.G.S. 150B-37 and 150B-42(b) . . . despite statements to the
contrary contained in the Final Agency Decision[,]” the trial court
concluded:
3. That the [Board] unconstitutionally
interfered with the Petitioner's vested rights
in her pension plan . . . .
4. That the [Board] exceeded its
statutory authority or jurisdiction [in]
den[ying] the Petitioner's request for
disability benefits . . . [and in]
5. . . . discontinu[ing] thePetitioner's dis
ability benefits . . . .
. . .
9. That the [Board] erred when it
failed to interpret N.C.G.S. 128-27 consistent
with the overall policies of the retirement,
disability and death benefit schemes.
10. That the [Board]'s findings,
inferences, conclusions and decisions are
unsupported by substantial evidence admissible
under N.C.G.S. 150B-29(a), 150B-30, or 150B-31
in view of the record as submitted . . . .
Thus, the trial court reversed the Board's final agency decision
and ordered the Board to pay petitioner the 21 months of disability
benefits she sought. The Board appeals.
It must be noted that “[b]y May 1999, [petitioner]'s health
had deteriorated to the point that she was forced to leave her
part-time job at Trend. She reapplied for and was again granted
disability benefits effective June 1, 1999.” (This final grant of
disability benefits is not at issue.) Additionally, in its brief
to this Court, the Board states that it “will forego seeking
reimbursement of the benefits paid [to petitioner] in error from
April through September, 1997. Thus, the only issue before this
Court is whether Petitioner is entitled to benefits for the months
of March, 1997 and October, 1997 through May, 1999.”
[1]The Board brings forward four assignments of error for
this Court's review. First, we choose to address the Board's
contention that the trial court utilized the wrong standard of
appellate review. In N.C. Gen. Stat. § 150B-51, our General
Assembly has set out clear instructions for a trial court to follow
when acting as an appellate judicial reviewer of a final agency
decision:
(a) . . . In reviewing a final decision
in a contested case in which an administrative
law judge made a recommended decision, the
court shall make two initial determinations.
First, the court shall determine whether theagency heard new evidence after receiving the
recommended decision. . . . Second, if the
agency did not adopt the recommended decision,
the court shall determine whether the agency's
decision states the specific reasons why the
agency did not adopt the recommended
decision. . . .
(b) . . . After making the
determinations, if any, required by subsection
(a), the court reviewing a final decision may
affirm the decision of the agency or remand
the case for further proceedings. It may also
reverse or modify the agency's decision if the
substantial rights of the petitioners may have
been prejudiced because the agency's findings,
inferences, conclusions, or decisions are:
(1) In violation of constitutional
provisions;
(2) In excess of the statutory authority
or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a),
150B-30, or 150B-31 in view of the
entire record as submitted; or
(6) Arbitrary or capricious.
N.C. Gen. Stat. § 150B-51 (1999). Additionally:
“The proper standard of review [for a
trial court] under [N.C. Gen. Stat. § 150B-
51(b)] depends upon the issues presented on
appeal [from the agency's final decision]. If
appellant argues the agency's decision was
based on an error of law, then 'de novo'
review is required. If however, appellant
questions (1) whether the agency's decision
was supported by the evidence or (2) whether
the decision was arbitrary or capricious, then
the reviewing court must apply the 'whole
record' test.”
In Re Appeal by McCrary, 112 N.C. App. 161,
165, 435 S.E.2d 359, 363 (1993) (citations
omitted) (emphasis in original). . . . Then,
once the trial court has entered its order,
should one of the parties appeal to this
Court,
“[o]ur task, in reviewing a superior court
order entered after a review of a boarddecision is two-fold: (1) to determine
whether the trial court exercised the proper
scope of review, and (2) to review whether the
trial court correctly applied this scope of
review.”
Whiteco Outdoor Adver. v. Johnston County Bd.
of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d
70, 73 (1999).
Jordan v. Civil Serv. Bd. of Charlotte, 137 N.C. App. 575, 577, 528
S.E.2d 927, 929 (2000) (emphasis added).
We first note that in accordance with the above statute, on
the very first page of its order, the trial court plainly states,
“[t]he Court, having reviewed the record in this cause and having
considered the arguments of both parties, hereby makes the
following INITIAL DETERMINATIONS, pursuant to N.C.G.S. 150B-
51(a)[.]” (Emphasis in original and emphasis added.) Those initial
determinations were that the Board did not hear new evidence
following the contested case hearing, and that the Board did state
specific reasons why it did not adopt the ALJ's recommended
decision. Thus, the trial court complied with the initial
determination procedures outlined in N.C. Gen. Stat. § 150B-51(a).
Second, we note that although the trial court reversed and modified
the Board's decision, it did so pursuant to N.C. Gen. Stat. § 150B-
51(b), specifying in each finding and/or conclusion in what way it
found the Board's inferences, conclusions, or decisions were:
“unconstitutional[]”; “exceeded its statutory authority or
jurisdiction”; based “on unlawful procedure,” and; “unsupported by
substantial evidence admissible under N.C.G.S. 150B-29(a), 150B-30,
or 150B-31 in view of the [entire] record as submitted,” and which
resulted in “the substantial rights of the Petitioner hav[ing] been
prejudiced. Therefore, we hold that the trial court properly
followed the statutory procedures laid out in N.C. Gen. Stat. §150B-51.
Nevertheless, the Board argues that “[i]n this instance, the
trial court's order is silent as to the standard of review
employed. It is therefore impossible to tell whether the court
utilized the appropriate scope of review.” We disagree. Looking
to petitioner's allegations in her appeal to the trial court (In Re
Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363),
the record reveals that petitioner excepted to many of the Board's
findings of fact on the basis that the Board did not review any of
the record before it. Although these exceptions would seem to be
allegations regarding whether the Board's decision was supported by
the evidence and as such, require application of the “whole record”
test, id., allegations that the tribunal utilized an improper form
of review are questions of law -- not fact. See Kinsey v. Spann,
139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000). Thus, it was
proper in the present case for the trial court to apply a de novo
review.
This is further borne out by petitioner's allegations that the
Board's conclusions of law, are erroneous on the basis that the
Board essentially misapplied and/or misinterpreted the statutory
provisions regarding disability retirement and “the requirements
for entitlement to a disability retirement allowance [as] set forth
in G.S. 128-27(c) . . . subject . . . to . . . G.S. 128-27(e)
. . . .” These contentions are clearly allegations of errors of
law, and because petitioner's alleged errors of law are with
respect to every conclusion of law made by the Board, the trial
court was obligated to apply a de novo review to the entire case
before it. Act-Up Triangle v. Commission for Health Services, 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997). Thus, in laying out itsvery specific and detailed findings of fact and conclusions of law,
we believe the record evidences that the trial court applied a
standard of de novo review. We hold this was the proper standard
of review.
[2]We next address the Board's assignment of error arguing
that the trial court erred in denying the Board's motion to dismiss
for lack of jurisdiction. We note that although the Board argues
that “the State of North Carolina cannot be sued except with its
consent or upon its waiver of immunity[ o]therwise, this immunity
is absolute and unqualified,” it is not personal or subject matter
jurisdiction the Board contends. Instead, the Board contends that
the trial court of Durham County lacked jurisdiction to order a
change in venue to Wake County Superior court. We agree. However,
because the error did not prejudice the Board, it does not
constitute reversible error.
The Board is correct in its contention that the Act “provides
for a specific waiver of this immunity.” Further, it is true that
statutory provisions providing for the waiver of the right to
judicial review under certain restrictions should be construed
strictly. In re Appeal of Harris, 273 N.C. 20, 159 S.E.2d 539
(1968). However, this Court has long held that the party seeking
relief on appeal, in this case the Board, must show not only error,
but also that the error was prejudicial. Vass v. Bd. of Trustees
of State Employees' Medical Plan, 108 N.C. App. 251, 255, 423
S.E.2d 796, 799 (1992). Thus, in the case at bar, the Board has
failed to show it was prejudiced by the change in venue in that the
Board does not argue prejudice at all, it simply argues error.
Moreover, we find that petitioner's motion to change venue actually
resolves the Board's contention. It is the Board's argument thatpetitioner should have filed her petition for judicial review in
either Wake County or the county in which she resided, as required
by N.C. Gen. Stat. § 150B-45 (1999). Thus, petitioner's motion to
change venue to Wake County Superior court and the trial court's
grant of that motion settled the Board's argument by placing
jurisdiction with the Wake County Superior Court. Again, we note
the Board has failed to allege any prejudice or damage suffered
because of the improper venue. Therefore, this assignment is
overruled.
[3]We address the Board's final two assignments of error
together. The first being, the Board assigns error to the trial
court's finding and concluding that, in making it's final agency
decision, the Board failed to review and consider the entire
official record before it. It is the Board's contention that its
“decision itself states that it was based upon '[t]he Board of
Trustees, having reviewed the Recommended Decision and the Record
in this matter, and having heard the arguments of the parties.'”
Secondly, the Board argues that the trial court erred in awarding
disability benefits to petitioner for a period of time when she was
still employed part-time with Trend.
The scope of this Court's appellate
review of the trial court's decision is the
same as that utilized by the trial court.
Jarrett v. North Carolina Dep't of Cultural
Resources, 101 N.C. App. 475, 478, 400 S.E.2d
66, 68 (1991). . . .
. . .
[Additionally, o]ur review is . . . limited to
assignments of error to the trial court's
order. Watson v. North Carolina Real Estate
Comm'n, 87 N.C. App. 637, 640, 362 S.E.2d 294,
296 (1987). . . .
Vass, 108 N.C. App. at 256-57, 423 S.E.2d at 800.
In the case at bar, the Board assigns as error the trialcourt's holding that petitioner was statutorily entitled to
benefits and that the Board failed to utilize the entire official
record in arriving at its final agency decision regarding
petitioner's right to disability benefits. These are allegations
of errors of law and as such, we must apply a de novo review to the
record before this Court. Act-Up Triangle, 345 N.C. at 706, 483
S.E.2d at 392.
The Board is correct that the statutory definition of
retirement is the “withdrawal from active service with a retirement
allowance granted under the provisions of th[e governing] Article[,
and that i]n order for a member[-employee]'s retirement to become
effective in any month, the member[-employee] must render no
service at any time during that month.” N.C. Gen. Stat. § 128-
21(19) (1999). Further:
(10) “Employee” shall mean any person who is
regularly employed in the service of and
whose salary or compensation is paid by
the employer as defined in subdivision
(11) of this section, whether employed or
appointed for stated terms or otherwise
. . . . In all cases of doubt the Board
. . . shall decide who is an employee.
(11) “Employer” shall mean any county,
incorporated city or town . . . and the
State Association of County
Commissioners. “Employer” shall also
mean any separate, juristic political
subdivision of the State as may be
approved by the Board . . . .
. . .
(22) “Service shall mean service as an
employee as described in subdivision (10)
of this section and paid for by the
employer as described in subdivision (11)
of this section.
N.C. Gen. Stat. § 128-21(10), (11), (22). Conversely, there is no
definition in the Act for “disability retirement.” However
regarding “disability retirement benefits,” the Act states that: Upon the applicat
ion of a member[-employee] or
of his employer, any member[-employee] who has
had five or more years of creditable service
may be retired by the Board . . . on a
disability retirement allowance: Provided,
that the medical Board, after a medical
examination of such member[-employee], shall
certify that such member[-employee] is
mentally or physically incapacitated for the
further performance of duty, that such
incapacity was incurred at the time of active
employment and has been continuous thereafter,
that such incapacity is likely to be
permanent, and that such member[-employee]
should be retired; Provided further the
medical board shall determine if the
member[-employee] is able to engage in gainful
employment and, if so, the member[-employee]
may still be retired and the disability
retirement allowance as a result thereof shall
be reduced as in subsection (e) . . . .
N.C. Gen. Stat. § 128-27(c) (1999).
Our Courts have long held “[i]t is elementary that when a
statute contains a definition of a word or term used therein, such
definition, unless the context clearly requires otherwise, is to be
read into the statute wherever such word or term appears therein.”
Smith v. Powell, Comr. of Motor Vehicles, 293 N.C. 342, 345, 238
S.E.2d 137, 140 (1977). Nevertheless, petitioner argues that the
term “retired” has a different meaning in N.C. Gen. Stat. § 128-27,
the disability statute. It is petitioner's position that because
N.C. Gen. Stat. § 128-27(e)(1) (2001) clearly requires the Board to
“determine whether a disability beneficiary is engaged in or is
able to engage in a gainful occupation,” N.C. Gen. Stat. § 128-
27(e)(1) (1999), the statute thereby allows a member to continue to
work -- without actually retiring -- as long as she does so in a
different capacity than before. We disagree.
The Act clearly provides for:
(e) Reexamination of Beneficiaries
Retired on Account of Disability. -- Once each
year during the first five years following
retirement of a member on a disability
allowance, and once in every three-year periodthereafter, the Board . . . may, and upon his
application shall, require any disability
beneficiary who has not yet attained the age
of 60 years to undergo a medical examination
. . . .
(1) The Board . . . shall determine
whether a disability beneficiary is
engaged in or is able to engage in a
gainful occupation paying more than
the difference . . . between his
disability retirement allowance and
the gross compensation earned as an
employee during the 12 consecutive
months in the final 48 months of
service prior to retirement
producing the highest gross
compensation excluding any
compensation received on account of
termination. . . .
(2) Should a disability beneficiary
under the age of 62 years be
restored to active service at a
compensation not less than his
average final compensation, his
retirement allowance shall cease, he
shall again become a member of the
Retirement System and he shall
contribute thereafter at the
contribution rate which is
applicable during his subsequent
membership service. . . .
. . .
(3a) Notwithstanding the foregoing,
should a beneficiary who retired on
a disability retirement allowance be
restored to service as an employee,
then the retirement allowance shall
cease as of the first day of the
month following the month in which
the beneficiary is restored to
service and the beneficiary shall
become a member of the Retirement
System and shall contribute
thereafter as allowed by law at the
uniform contribution payable by all
members. . . .
N.C. Gen. Stat. § 128-27(e)(1), (2), (3a) (emphasis added).
In light of the above subsection (3a), we believe that our
Legislature did not intend that an employee be allowed to continue
rendering service within the Retirement System and also receivedisability benefits. Instead, the statutory requirement that “[
i]n
order for a member's retirement to become effective in any month,
the member must render no service at any time during that month,”
cannot be ignored. N.C. Gen. Stat. § 128-21(19) (emphasis added).
Thus, we cannot agree with the ALJ's interpretation of the
disability retirement statutes that, although petitioner continued
working at Trend, it was not in the same “service” she previously
provided (and could no longer provide due to her disability).
Additionally, we agree with the Board that a member cannot be both
a contributing member of the system and receive payment for
disability retirement. Therefore, we find that petitioner did not
effectively “retire” (as defined in the Act) when she changed jobs,
lessening her hours and being demoted.
Moreover, N.C. Admin. Code tit. 20, r. 2C.0802 (September
1977) clearly states: “An . . . employee in a regular position,
the duties of which require not less than 1,000 hours of service
per year shall be an employee as defined in G.S. 128-21(10).” As
testified to by the Retirement System's Deputy Director, Mr.
Barnes, this rule is outlined in the local government employees'
handbook which is made available to “each employer that
participates in the System . . . enough copies to distribute to
their employees.” Thus, we hold that where petitioner worked more
than 1,000 hours per year -- for any local government employer as
defined by N.C. Gen. Stat. § 128-21(11) -- petitioner would have
effectively eliminated herself from qualifying to receive a
disability retirement allowance.
From our reading of the Act we believe that the Legislature
intended that a member-employee getting a disability retirement
allowance for “withdraw[ing[ from active service,” N.C. Gen. Stat.§ 128-21(19), should not be allowed to continue providing
similar
“[s]ervice,” N.C. Gen. Stat. § 128-21(22). Thus, we find that
petitioner did not properly retire from service and as such,
petitioner was not entitled to disability benefits pursuant to N.C.
Gen. Stat. § 128-27(e). Having so found, we need not address the
Board's argument that it reviewed the entire official record before
it.
[4]Finally, as to the Board's argument that the trial court
erred in finding that the Board was “estopped from denying the
Petitioner disability retirement benefits,” we agree that the trial
court did so err. We find the Board's brief to this Court
persuasive in this regard:
A governmental agency is not subject to an
estoppel to the same extent as a private
individual or a private corporation.
Henderson v. Gill, 229 N.C. 313, 49 S.E.2d 754
(1948). Moreover, an estoppel may not arise
against a governmental entity if such estoppel
will impair the exercise of the governmental
powers of the entity. Washington v.
McLawhorn, 237 N.C. 449, 75 S.E.2d 402 (1953).
[Thus, we agree that a]n estoppel
argument does not apply [in the present case]
because it would override what is clearly
written in statute, that no one can receive
disability retirement benefits without being
retired. . . . The Supreme Court has stated
that “[w]hen the right to do a thing depends
upon legislative authority, and the
Legislature has failed to authorize it, or has
forbidden it, the approval of the doing of it
by a ministerial officer cannot create a right
to do that which is unauthorized or
forbidden.” Glover v. Insurance Co., 228 N.C.
195, 198, 45 S.E.2d 45, 47 (1947). . . .
Having found that plaintiff was disqualified from receiving
disability retirement benefits, the trial court's orders are
Reversed.
Judges WALKER and TYSON concur.
*** Converted from WordPerfect ***