Treasurer.
THOMAS, Judge.
Respondent, the City of Charlotte (City), appeals a
declaratory judgment finding a former police officer to be eligible
for a special separation allowance.
The separation allowance is a monthly supplemental payment
lasting up to seven years that is payable to officers who, among
other requirements, retire before reaching age sixty-two.
Petitioner, Lloyd M. Cochrane, Jr. (Cochrane), retired from
the City of Charlotte police force on a disability retirement in
1983 under the Law Enforcement Officers' Retirement System (LEORS),
governed by Chapter 143 of the North Carolina General Statutes. On1 January 1986, all assets of LEORS were transferred to the Local
Government Employees' Retirement System (LGERS), with members and
beneficiaries of LEORS becoming members and beneficiaries of LGERS.
See N.C. Gen. Stat. § 143-166.50(b) (1999). Cochrane's benefits
are therefore now payable by LGERS, governed by Chapter 128 of the
North Carolina General Statutes.
In March, 2000, having never received the separation
allowance, Cochrane filed a petition for declaratory judgment
asking the court to determine the rights and responsibilities of
the parties under N.C. Gen. Stat. § 143-166.41. That section is
titled “Special separation allowance.”
The City answered that an initial eligibility requirement for
the allowance, before any other factors need be considered, is that
the officer retire on a service retirement. Cochrane, the City
argues, retired on a disability retirement and therefore is not
among those eligible.
After a hearing during the 27 July 2000 term of Mecklenburg
County Superior Court, the trial court denied the City's motion for
summary judgment and found Cochrane eligible for the special
separation allowance under N.C. Gen. Stat. §§ 143-166.41 and 143-
166.42. Section 143-166.42 extends the special separation
allowance statute to law enforcement officers employed by the local
government.
The trial court based its decision on a finding of ambiguities
in Chapter 128. The trial court determined that: “Since the
statute is ambiguous regarding whether or not a police officer whois on disability retirement is a member of the retirement system
while on disability, the Court resolves the ambiguity in favor of
the Petitioner and finds that the term 'creditable service'
includes the time spent on disability retirement as credit allowed
under the retirement system and therefore, the Petitioner meets the
requirements of N.C.G.S. § 143-166.41.”
The City appeals, arguing that under the plain language of
both special separation allowance statutes, an initial requirement
of eligibility is retirement on a service retirement. Cochrane,
the City argues, fails to meet this fundamental requirement because
he retired on a disability retirement. The City also contests the
trial court's conclusions that: (1) the term “creditable service”
is ambiguous under section 143-166.41; and (2) Chapter 128 is
ambiguous regarding whether an officer who is retired on a
disability retirement is a “member” or a “beneficiary” of LGERS,
and regarding whether that distinction makes a difference in this
case.
For the reasons herein, we agree with the City that
eligibility for the special separation allowance requires the
officer to have retired on a basic service retirement.
On appeal, a trial court's findings of fact in a bench trial
have the force of a jury verdict and are conclusive if supported by
competent evidence. State v. Coronel, __ N.C. App. __, __, 550
S.E.2d 561, 570 (2001). Conclusions of law drawn by the court from
the facts found, however, involve legal questions and are always
reviewable de novo by the appellate court. Mann Contr'rs, Inc. v.Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775,
522 S.E.2d 118, 121 (1999).
I.
Our initial inquiry is whether Cochrane was precluded from
consideration for the special separation allowance because he
retired on a disability retirement.
Section 143-166.41 provides:
(a) [E]very sworn law-enforcement officer . .
. employed by a State department, agency, or
institution who qualifies under this section
shall receive, beginning on the last day of
the month in which he retires on a basic
service retirement under the provisions of
G.S. 135-5(a) or G.S. 143-166(y), an annual
separation allowance equal to eighty-five
hundredths percent (0.85%) of the annual
equivalent of the base rate of compensation
most recently applicable to him for each year
of creditable service. The allowance shall be
paid in 12 equal installments on the last day
of each month. To qualify for the allowance
the officer shall:
(1) Have (i) completed 30 or more years of
creditable service or, (ii) have attained 55
years of age and completed five or more years
of creditable service; and
(2) Not have attained 62 years of age; and
(3) Have completed at least five years of
continuous service as a law enforcement
officer . . . immediately preceding a service
retirement. Any break in the continuous
service required by this subsection because of
disability retirement . . . shall not
adversely affect an officer's qualification to
receive the allowance, provided the officer
returns to service within 45 days after the
disability benefits cease and is otherwise
qualified to receive the allowance.
N.C. Gen. Stat. § 143-166.41 (1999). Effective 1 January 1987, N.C. Gen. Stat. § 143-166.42
extended the coverage of the special separation allowance statute
to law enforcement officers employed by local government:
On and after January 1, 1987, the provisions
of G.S. 143-166.41 shall apply to all eligible
law-enforcement officers . . . who are
employed by local government employers, except
as may be provided by this section. As to the
applicability of the provisions of G.S. 143-
166.41 to locally employed officers, the
governing body for each unit of local
government shall be responsible for making
determinations of eligibility for their local
officers retired under the provisions of G.S.
128-27(a) . . . .
N.C. Gen. Stat. § 143-166.42 (1999) (emphasis added). We note
there is no assignment of error or contention by any party that
section 143-166.42 is inapplicable to Cochrane because he retired
prior to 1 January 1987, and therefore we do not address it.
Section 128-27(a), referenced in the foregoing statute, is
entitled “Service Retirement Benefits,” and does not include
disability retirement. Disability retirement has different
requirements and is found in N.C. Gen. Stat. § 128-27(c), entitled
“Disability Retirement Benefits.” Cochrane retired under 128-
27(c), not 128-27(a).
Additionally, section 143-166.41 provides that the separation
allowance begins on “the last day of the month in which [the
officer] retires on a basic service retirement under the provisions
of G.S. 135-5(a) or G.S. 143-166(y).” N.C. Gen. Stat. § 143-
166.41(a) (1999) (emphasis added). Section 135-5(a) sets forth the
service retirement benefits for the State retirement system. Section 143-166 has been repealed. Act of June 27th, 1985, ch.
479, sec. 196(t), para.(t), 1985 N.C. Sess. Laws 412, 509. As with
section 128-27(a), section 135-5(a) does not include disability
retirement. The plain language of both special separation
allowance statutes provides that the allowance is for former local
and state law enforcement officers who retired on a basic service
retirement and not, as Cochrane contends, a disability retirement.
Moreover, in order to be eligible for the separation
allowance, an officer must have completed five years of continuous
service as a law enforcement officer “immediately preceding a
service retirement.” N.C. Gen. Stat. § 143-166.41(a)(3) (1999).
The subsection goes on to state that disability retirement will not
adversely affect the continuous service requirement, “provided the
officer returns to service within 45 days after the disability
benefits cease and is otherwise qualified to receive the
allowance.” Id. If disability retirement did not affect the
continuous service requirement, such language would not be needed.
Here, Cochrane did not return to work.
II.
Although we agree with the City that Cochrane does not qualify
for the allowance because he did not retire on a service
retirement, we proceed to address the trial court's conclusions:
(1) that the term “creditable service” is ambiguous under section
143-166.41 and includes time spent on disability retirement; and
(2) that statutory ambiguities exist regarding a disability
retiree's status as a member or beneficiary and whether thedistinction affects eligibility for the separation allowance.
The definition of “creditable service” is first found in
section 143-166.41 itself, which provides:
As used in this section, “creditable service”
means the service for which credit is allowed
under the retirement system of which the
officer is a member. . . .
N.C. Gen. Stat. § 143-166.41(b) (1999). Cochrane receives his
disability retirement benefits from LGERS. LGERS defines
“creditable service” at N.C. Gen. Stat. § 128-21(8), which
provides:
“Creditable service” shall mean “prior
service” plus “membership service” for which
credit is allowable as provided in G.S. 128-
26.
N.C. Gen. Stat. § 128-21(8) (1999). Section 128-26 does not allow
creditable service for disability retirement. Instead, the statute
credits service for actual time of employment, and also details the
circumstances under which an employee may purchase creditable
service.
See, e.g., N.C. Gen. Stat. § 128-26(a) (1999) (time taken
off for military service); N.C. Gen. Stat. § 128-26(e) (unused sick
leave); N.C. Gen. Stat. § 128-26(h) (employment with the General
Assembly); N.C. Gen. Stat. § 128-26(l) (approved leaves of
absence); N.C. Gen. Stat. § 128-26(o) (federal employment); N.C.
Gen. Stat. § 128-26(p) (part-time service); N.C. Gen. Stat. § 128-
26(s) (actual time of employment).
Moreover, the time Cochrane spent on disability retirement
qualifies as neither “prior service” nor “membership service” under
section 128-21(8). Prior service is “service of a member renderedbefore . . . he becomes a member of the System.” N.C. Gen. Stat.
§ 128-21(17) (1999). Membership service is “service as an employee
rendered while a member of the Retirement System.” N.C. Gen. Stat.
§ 128-21(14) (1999). Cochrane's time on disability retirement is
not service rendered before he became, or while he was, a member of
LGERS.
Section 128-21(13) defines “member” as “any person included in
the membership of the Retirement System as provided in G.S. 128-
24.” N.C. Gen. Stat. § 128-21(13). Section 128-24, entitled
“Membership,” provides that, “The membership of this Retirement
System shall be composed as follows: (1) All employees entering or
reentering the service of a participating employer after the date
of participation in the Retirement System of the employer.” N.C.
Gen. Stat. 128-24(1) (1999). Membership is also contingent on
continuing in that employment or, if employment has been terminated
other than by retirement, on leaving one's accumulated
contributions in LGERS.
See N.C. Gen. Stat. § 128-24(1a) (1999).
A member ceases to be a member only if he “withdraw[s] his
accumulated contributions or should he become a beneficiary or
die.”
Id. A beneficiary of LGERS is statutorily defined as “any
person in receipt of a pension, an annuity, a retirement allowance
or other benefit as provided by this Article.” N.C. Gen. Stat. §
128-21(6) (1999). Cochrane is in receipt of a disability
retirement allowance. He is, therefore, a beneficiary
.
Consequently, his time spent on disability is not counted towardcreditable service.
Cochrane also contends that officers on a disability
retirement should be given “creditable service” because the term
was used to calculate disability benefits. N.C. Gen. Stat. § 143-
166, which is now repealed, was used to calculate Cochrane's
disability retirement income. The statute provided in pertinent
part:
[[T]he officer] shall receive a disability
retirement equal to one and fifty-five one
hundredths percent (1.55%) of his average
final compensation . . . multiplied by the
number of
years of creditable service which he
would have had if he had continued in service
until his 55th birthday.
N.C. Gen. Stat. § 143-166(y) (emphasis added).
The statutory language Cochrane refers to is used solely for
the calculation of the amount of the disability benefit payment.
When calculating the amount, an officer is given the benefit of
assuming he would have had creditable service until age 55. There
is no statutory support for the contention that the above language
is to be used in determining the number of years of creditable
service. The statutory definition of “creditable service” does not
refer to the calculation of disability benefits. Time spent on
disability retirement does not qualify as “creditable service” and
cannot be credited toward the thirty years of creditable service
that is required under section 143-166.41(a)(1).
III.
Cochrane further contends that, even if there is a distinction
between service retirement and disability retirement, N.C. Gen.Stat. § 128-27(e)(6) eventually dissolves the distinction by
converting his disability retirement to a service retirement upon
the earliest date on which he would have qualified for an unreduced
service retirement allowance. We disagree.
Section 128-27(e)(6) specifies that a disability beneficiary
is entitled to a service retirement allowance on the “date on which
he would have qualified for an unreduced service retirement
allowance.” N.C. Gen. Stat. § 128-27(e)(6) (1999). It does not
grant creditable service for the years spent on disability,
however. Had the General Assembly intended to give creditable
service to local law enforcement officers for time spent on
disability retirement, it could have used the language utilized for
those in the State retirement system:
[T]he long-term disability benefit is payable
so long as the beneficiary is disabled until
the earliest date at which the beneficiary is
eligible for an unreduced service retirement
allowance from the Retirement System, at which
time the beneficiary would receive a
retirement allowance calculated on the basis
of the beneficiary's average final
compensation at the time of disability as
adjusted to reflect compensation increases
subsequent to the time of disability
and the
creditable service accumulated by the
beneficiary, including creditable service
while in receipt of benefits under the Plan.
N.C. Gen. Stat. § 135-106(b) (emphasis added). Likewise, the
General Assembly could have expressly stated in the provisions
under “Creditable Service” its intention to grant creditable
service for time spent on disability retirement. The General
Assembly did not, but such language was included in the provisionsof the State retirement system.
See N.C. Gen. Stat. § 135-4(y)
(1999).
IV.
Cochrane does raise a public policy issue. He argues that
public policy mandates inclusion of disabled officers among those
eligible for the special separation allowance. Whether or not we
agree that they
should be included as part of a preferred public
policy, however, is irrelevant. Our authority is limited. It is
critical to our system of government and the expectation of our
citizens that the courts not assume the role of legislatures.
State v. Arnold, __ N.C. App. __, __, __ S.E.2d __, __ (Dec. 18,
2001) (No. COA00-1514). Normally, questions regarding public
policy are for legislative determination.
See Martin v. Housing
Corp., 277 N.C. 29, 41, 175 S.E.2d 665, 671 (1970).
Cochrane does not argue that the General Assembly exceeded its
constitutional limits. Under statutes properly enacted by our
General Assembly, Cochrane is not eligible for the special
separation allowance. Accordingly, the order of the trial court is
reversed.
REVERSED.
Judge HUNTER concurs.
Judge GREENE concurs in a separate opinion.
===========================
GREENE, Judge, concurring in the result.
I agree with the majority's conclusion that Cochrane did not
retire under a service retirement pursuant to N.C. Gen. Stat. §§
128-27(a) and 135-5(a) and is thus ineligible for the special
separation allowance authorized by N.C. Gen. Stat. §§ 143-166.41
and 143-166.42 but write separately to address two aspects of the
majority's analysis.
Section 143-166.41(a) provides that “every sworn law-
enforcement officer . . . shall receive, beginning on the last day
of the month in which he
retires on a basic service retirement
under the provisions of G.S. 135-5(a) or G.S. 143-166(y), an annual
separation allowance [(special separation allowance)],” provided
the law-enforcement officer shall:
(1) [h]ave (i) completed 30 or more years of
creditable service or, (ii) have attained 55
years of age and completed five or more years
of
creditable service; and
. . . .
(3) [h]ave completed at least five years of
continuous service as a law enforcement
officer . . . immediately preceding a service
retirement.
N.C.G.S. § 143-166.41(a) (1999) (emphasis added).
Cochrane argues that even if there is a distinction between a
disability and a service retirement, N.C. Gen. Stat. § 128-27(e)(6)
operates to transform a law-enforcement officer's disability
retirement into a service retirement. I agree. According to the
statute, “a beneficiary in receipt of a disability retirement
allowance until the earliest date on which he would have qualified
for an unreduced service retirement allowance shall thereafter. . . (iii) be considered a beneficiary in receipt of a service
retirement allowance.” N.C.G.S. § 128-27(e)(6) (1999). “[A]
beneficiary in receipt of a disability retirement allowance,”
id.,
is, as the majority implicitly concedes, a beneficiary of a
disability retirement plan. Likewise, “a beneficiary in receipt of
a service retirement allowance,”
id., must necessarily be a
beneficiary of a service retirement plan. Thus, a disability
retirement is transformed into a service retirement when the
requisite qualifications are met, as occurred in this case in
respect to Cochrane's disability retirement.
Cochrane further contends a person on disability retirement
can accrue creditable service. “[C]reditable service” is defined
as “the service for which credit is allowed under the retirement
system of which the officer is a member.” N.C.G.S. § 143-166.41(b)
(1999). N.C. Gen. Stat. § 143-166(y), which was used to calculate
Cochrane's disability retirement income, gives credit for “the
number of years of creditable service which he would have had if he
had continued in service until his 55th birthday.” N.C.G.S. § 143-
166(y) (1981) (repealed 1985). Thus, “creditable service,” in the
context of section 143-166.41, includes actual service as well as
service a law-enforcement officer could have performed but for his
disability and can be accrued during a person's disability
retirement. Assuming Cochrane was a member of the disability
retirement system at the time his disability benefits werecalculated,
(See footnote 1)
the time spent on disability retirement, until
Cochrane's 55th birthday, counts as creditable service under
section 143-166.41.
Thus, I believe, Cochrane met his burden of showing that he is
in receipt of a service retirement and accrued creditable service
during his years on disability retirement. He nevertheless fails
to overcome the requirement that a law-enforcement officer seeking
the special separation allowance must “
retire[] on a basic service
retirement.” N.C.G.S. § 143-166.41(a) (1999) (emphasis added). To
retire means to “withdraw from one's occupation.”
American
Heritage College Dictionary 1165 (3d ed. 1993). For Cochrane, this
occurred when he assumed a disability retirement, not when his
disability retirement was transformed into a service retirement.
Consequently, for this reason, I agree with the majority that
Cochrane is not eligible for the special separation allowance.
Footnote: 1