1. Police Officers_retirement_special separation allowance_employment by sheriff_not
a State agency
A retired city police officer who began working for the county sheriff was working for a
local government employer, and not a State agency, for retirement payment purposes.
2. Police Officers_retirement_separation payments_employment by sheriff's
office_termination of payments
Plaintiff, a retired police officer, lost the right to receive future separation payments from
the city upon his employment with the sheriff's office, an employer stipulated as local
government. The City of Laurinburg acted congruent with its designated authority under
N.C.G.S. § 143-166.42 and consistent with the General Assembly's intent indetermining that it
would have grounds to cease payment of a separation allowance for law enforcement officers
who become employed by another local government agency, such as the Scotland County
Sheriff's Office.
Jack E. Carter for plaintiff-appellee
Gordon, Horne, Hicks, and Floyd, P.A., by Charles L. Hicks,
for defendant-appellant
North Carolina League of Municipalities by General Counsel,
Andrew L. Romanet, Jr. and Senior Assistant General Counsel,
John M. Phelps, II, as amicus curiae in favor of defendant-
appellant
ELMORE, Judge.
The City of Laurinburg (the City) appeals an order of partial
summary judgment requiring them to continue to pay a portion of
separation benefits pursuant to N.C. Gen. Stat. §§ 143.166.41 and
143.166.42 for Billy L. Campbell (plaintiff), a former policeofficer. Plaintiff retired from the City of Laurinburg Police
Department on 30 August 1999, after 30 years of service. He was
not yet 62 years old. The City began paying him a retirement
allowance and also a special separation allowance pursuant to N.C.
Gen. Stat. § 143-166.42. These special separation payments of
$928.54 a month continued until 28 September 2001, when the City
ceased payment. Plaintiff contends, and the trial court agreed,
that this cessation was wrongful. But as of October 2001 plaintiff
was employed as a law enforcement officer for the Scotland County
Sheriff's Office. The City contends that this employment made
plaintiff no longer eligible to receive payments. There is no
argument as to these material facts; each party argues though, that
the facts entitle them to judgment as a matter of law.
The City makes four arguments as to why plaintiff is no longer
eligible for the special separation allowance because of his
employment with Scotland County. First, that the Laurinburg City
Council, as the local governing body, established in 1991 that any
officer who was receiving the special separation allowance would
forfeit the allowance upon employment “by another local government
or agency thereof.” Second, the City argues that the statute
itself, when properly interpreted, also provides for termination of
the allowance if the officer is hired by another local government
employer. Third, the City argues that because plaintiff became
“reemployed,” under N.C. Gen. Stat. § 128-27(a) he is no longer
actually retired and any allowance paid because of retirement
should end. Fourth, in the alternative, the City argues that the
Scotland County Sheriff's Office can be considered a state agency,which under section 143-166.41(c)(3) would make plaintiff's
employment act as a terminating event to his receipt of the
allowance.
[1] Prior to analysis of these arguments it is important to
note that the parties entered into stipulations of fact, one of
which stated that as of “October 2001 the Plaintiff became employed
as a law enforcement officer as defined by G.S. 128-21(11b) or G.S.
143-166.50(a)(3) of the Sheriff of Scotland County, which
employment has continued at all times through this date.” Both of
the statutes referenced in the stipulation defining “law
enforcement officer” begin by qualifying plaintiff as “a full-time
paid employee of an employer . . . .” N.C. Gen. Stat. §§ 143-
166.50(a)(3) and 128-21(11b) (2003). Both statutes define
“employer” as “a county, city, town or other political subdivision
of the State.” N.C. Gen. Stat. §§ 143-166.50(a)(2) and 128-21(11)
(2003). Accordingly, for this stipulation to be given effect,
plaintiff is necessarily employed by a local government employer
and not a State agency, leaving the City's fourth argument, that
plaintiff now works for the State, without merit.
[2] The remainder of the arguments attempt to address the
seeming ambiguity within the language of section 143-166.42, an
ambiguity which is further clouded when attempting to construe
section 143-166.42 in conjunction with section 143-166.41: the
statute which creates the special separation allowance.
N.C. Gen. Stat. § 143-166.42 (2003) states that:
the provisions of G.S. 143-166.41 shall apply
to all eligible law-enforcement officers as
defined by G.S. 128-21(11b) or G.S.
143-166.50(a)(3) who are employed by localgovernment 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) and for making payments to their
eligible officers under the same terms and
conditions, other than the source of payment,
as apply to each State department, agency, or
institution in payments to State officers
according to the provisions of G.S.
143-166.41.
Id. The first sentence of section 143-166.42 allows local law
enforcement officers to receive the same special separation
allowance that officers who are employed by the State enjoy,
“except as may be provided by this section.” The very next
sentence authorizes the governing body of the local government in
question to determine who, among their officers, is “eligible” for
the special separation allowance set forth in section 143-166.41.
But further within the same sentence the General Assembly notes
that payments should be made “under the same terms and conditions”
as apply to the State. Looking at the statute then, the extent to
which a local governing body can effectively determine
“eligibility” and apply the provisions of section 143-166.41, is
ambiguous.
Nonetheless, operating under its authority to determine
eligibility, the City's governing body__its City
Council__determined on 16 April 1991 that any future officer
receiving a special separation allowance who then became employed
by “another local government or agency” would no longer be eligible
to receive payments. The City argues that its Council's decisionis controlling and plaintiff is no longer entitled to receive
payments. Plaintiff, however, notes that the plain language of
section 143-166.41 only requires termination of the allowance if
plaintiff is employed by the State, not another local government
entity, and argues that application of N.C. Gen. Stat. § 163-
144.41(c)(3) is controlling. N.C. Gen. Stat. § 143-166.41, in
pertinent part, states:
(a) Notwithstanding any other provision of
law, every sworn law-enforcement officer as
defined by G.S. 135-1(11b) or G.S.
143-166.30(a)(4) 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 . .
. . 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 as herein
defined immediately preceding a
service retirement. Any break in the
continuous service required by this
subsection because of disability
retirement or disability salary
continuation benefits 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.
(b) . . .
(c) Payment to a retired officer under the
provisions of this section shall cease at the
first of:
(1) The death of the officer;
(2) The last day of the month in
which the officer attains 62 years
of age; or
(3) The first day of reemployment by
any State department, agency, or
institution, except that this
subdivision does not apply to an
officer returning to State
employment in a position exempt from
the State Personnel Act in an agency
other than the agency from which
that officer retired.
(d) . . .
(e) The head of each State department, agency,
or institution shall determine the eligibility
of employees for the benefits provided herein.
(f) . . .
(g) The head of each State department, agency,
or institution shall make the payments set
forth in subsection (a) to those persons
certified under subsection (e) from funds
available under subsection (f).
N.C. Gen. Stat. § 143-166.41 (2003). Section 143-166.41 is clear
on its face that employment with the State, under the listed
conditions, while drawing a separation allowance from that same
agency would be grounds to terminate the allowance.
We hold that, under its authority to determine eligibility
according to section 143-166.42, the City Council appropriately
changed the applicable provision of section 143-166.41(c)(3) from
reemployment with the State to “reemployment with another local
government.” See Bowers v. City of High Point, 339 N.C. 413, 419,451 S.E.2d 284, 288 (1994) (holding that N.C. Gen. Stat. § 143-
166.42 does not permit local governments to determine the amount of
payment, i.e., alter the rate found in 143-166.41(a), but does
permit them to determine eligibility). Upon plaintiff's employment
with the sheriff's office, an employer already stipulated as local
government, he lost the right to receive future separation payments
from the City.
This interpretation is congruent with the intent of the
General Assembly, the primary goal of statutory construction. See
id., 339 N.C. at 419-20, 451 S.E.2d at 289 (citing cases). In
enacting section 143-166.42, the legislature wanted to encourage
early retirement at the local level under similar circumstances as
they had done at the State level. See id. Instead of setting
forth the exact eligibility requirements, the legislature saw fit
to give that responsibility to the local governing body. N.C. Gen.
Stat. § 143-166.42 (2003) (“As to the applicability of the
provisions of G.S. 143-166.41 . . . the governing body for each
unit of local government shall be responsible for making
determinations of eligibility . . . .”); Moody v. Transylvania
County, 271 N.C. 384, 386, 156 S.E.2d 716, 717 (1967) (In addition
to expressed powers, a municipality can exercise “those necessarily
or fairly implied in or incident to the powers expressly granted .
. . .”) (quoting Madry v. Scotland Neck, 214 N.C. 461, 462, 199
S.E. 618, 619 (1938)). To interpret the local governing body's
ability to determine eligibility in such a way as to prevent them
from setting the eligibility requirements listed in section 143-
166.41 makes the General Assembly's exception in section 143-166.42virtually meaningless. See N.C. Gen. Stat. § 160A-4 (2003)
(“[G]rants of power shall be construed to include any additional
and supplementary powers that are reasonably necessary or expedient
to carry them into execution and effect . . .”); Bowers, 339 N.C.
at 417, 451 S.E.2d at 288 (applying 160A-4 to its decision
interpreting section 143-166.42); Duke Power Co. v. City of High
Point, 69 N.C. App. 378, 387, 317 S.E.2d 701, 706 (“no part of a
statute is mere surplusage . . . [and] each provision adds
something not otherwise included therein”), disc. review denied,
312 N.C. 82, 321 S.E.2d 895 (1984).
The City acted congruent with its designated authority under
N.C. Gen. Stat. § 143-166.42 and consistent with the General
Assembly's intent in determining that for their law enforcement
officers, becoming employed by another local government agency,
such as the Scotland County Sheriff's Office, would be grounds to
cease payment of the separation allowance. As such, we reverse the
trial court's order that the City must continue special separation
allowance payments to plaintiff.
Reversed.
Judges McCULLOUGH and LEVINSON concur.
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