Limits on Pension Correction under WV Code §5-10-44: Exclusion of DNR Subsistence Allowance for Active Officers

Introduction

Robert Clark and a group of current and retired Natural Resources Police Officers (“petitioners”) challenged the West Virginia Consolidated Public Retirement Board’s (“the Board”) decision to remove a statutory subsistence allowance from the calculation of their pensionable compensation. After the Board concluded in 2017 that the monthly $130 subsistence allowance did not qualify as “compensation” under the Public Employees Retirement System (PERS), the petitioners won initial relief in circuit court. On appeal, in West Virginia Consolidated Public Retirement Board v. Clark (“Clark I”), 245 W. Va. 510, 859 S.E.2d 453 (2021), the Supreme Court of Appeals held (1) that the allowance was never “compensation” under PERS, and (2) that the Board’s 2014–2015 attempt to recoup overpayments to retired officers was untimely under WV Code §5-10-44(e). After remand, the lower court certified two questions back to the Supreme Court:

Whether Clark I’s timeliness holding precludes the Board from removing the subsistence allowance from active or inactive officers’ future pension calculations.
Whether the petitioners are entitled to recover attorneys’ fees from the Board under the facts of this case.

Summary of the Judgment

The Supreme Court answered the first question “No.” It held that Clark I’s timeliness analysis under §5-10-44(e) applies only to corrections of overpayments from PERS to retirees and beneficiaries, not to contributions into PERS by active or inactive employees. Active and inactive officers’ subsistence allowance was never pensionable compensation and remains non-pensionable; the Panel did not disturb the Board’s mandatory duty under §5-10-44(a), (c), and (d) to correct employer or employee over-contributions in a timely manner.

As to the second question—attorneys’ fees—the Court declined to answer. It explained that WV Code §58-5-2 authorizes certification only of pure legal questions; entitlement to fees depends on case-specific factual findings and application of law to fact, which this Court cannot consider on certification alone.

Analysis

Precedents Cited

Gallapoo v. Wal-Mart (Syl. Pt. 1): Appellate review of certified legal questions is de novo.
Booth v. Sims (Syl. Pt. 7, in part): Public employees have only an expectancy in benefits until eligibility vests.
Nelson v. WV Public Employees Insurance Board (Syl. Pt. 1) and Am. Tower Corp. v. Beckley (Syl. Pt. 4): The word “shall” in a statute is mandatory unless the legislature clearly indicates otherwise.
State v. Epperly (Syl. Pt. 2): Clear and unambiguous statutory language must be applied as written.
State v. Stout (Syl. Pt. 1): Certified questions may not involve disputed facts.

Legal Reasoning

• The primary statute is WV Code §5-10-44, which governs correction of errors in PERS:

§5-10-44(a) (timeliness duty): Upon learning of any error, the Board shall correct it “in a timely manner.”
§5-10-44(c) (employer overpayments): Board must credit or offset mistaken employer contributions.
§5-10-44(d) (employee overpayments): Board decides how to return or credit mistaken employee contributions.
§5-10-44(e) (system overpayments): When retirees or beneficiaries have been over-paid, the Board must correct “in a timely manner.”

• In Clark I, the Court held that while the subsistence allowance was never pensionable, the Board’s April 2014–October 2015 effort to recoup overpayments from PERS to retirees was untimely under §5-10-44(e). As a result, the Board could not claw back or prospectively adjust benefits for retirees or their beneficiaries.

• The certified question now is whether that timeliness holding automatically prohibits the Board from removing the allowance from active or inactive officers’ pensionable compensation. The Court answered “No,” because: (1) Active/inactive officers have not received PERS benefits and thus are not governed by subsection (e); (2) Their situation instead falls under subsections (a) & (d) (over-contributions into the system by employees) and (c) (over-contributions by the employer), which also impose a mandatory and timely correction duty; (3) Clark I expressly did not address those subsections or the rights of active/inactive officers.

Impact

This decision clarifies that:

The Court’s prior timeliness ruling in Clark I was limited to retired officers under §5-10-44(e). It does not restore the subsistence allowance as pensionable compensation for active or inactive officers.
The Board retains a mandatory duty, under §5-10-44(a), (c), and (d), to correct any over-contributions by DNR or by officers themselves—timely and without discretionary exception.
Future disputes over recoupment of employer or employee contributions must be litigated under the proper subsections of §5-10-44 and cannot rely on Clark I’s timeliness analysis for retirees.
Questions of fee entitlement remain fact-driven and must await development of the record and a final order in circuit court.

Complex Concepts Simplified

Pensionable Compensation vs. Expectancy: “Pensionable compensation” is the salary figure used to calculate retirement benefits. Until an employee meets eligibility requirements, any expectation of benefit is not a “right” but a mere expectation (Booth v. Sims).
Correction Statute (§5-10-44): This remedial statute mandates that any error in contributions or payments be corrected promptly—whether the error causes money to flow into the retirement fund (employer/employee overpayments) or out of the fund (over-payments to retirees).
“Shall” = Mandatory: When the legislature uses “shall” without contrary intent, the Board has no discretion to delay or ignore its correction duties (Nelson; Am. Tower Corp.).
Certified Questions (§58-5-2): Only pure legal questions—no disputed facts—may be certified to the Supreme Court of Appeals (Stout).

Conclusion

The Supreme Court’s certification ruling makes clear that the 2021 Clark I decision, which prevented retroactive recoupment of subsistence allowance over-payments to retired officers, does not force reinstatement of the allowance as pensionable compensation for active or inactive officers. Their error correction must itself be timely under the appropriate subsections of WV Code §5-10-44. And because certification is limited to legal issues, the question of attorneys’ fees—dependent on fact findings—must be resolved in the circuit court in the ordinary course. Together, Clark I and this certification opinion delineate the temporal and substantive boundaries of the Board’s correction obligations, ensuring that retirees, active employees, and the retirement fund itself are treated in accordance with clear legislative commands.