Employees' Retirement System v. Bradford

⁷⁸ REED, J. The Employees’ Retirement System of Baltimore County, Maryland (“ERS”), appellant, seeks to reverse the decision of the Baltimore County Board of Appeals (the “Board”), which found that ERS improperly denied Police Officer Brandt Bradford, appellee, the ability to choose a particular retirement option based upon the circumstances of his 2012 retirement from the Baltimore County Police Department (“BCPD”). ERS filed a Petition for Judicial Review in the Circuit Court for Baltimore County, which affirmed the Board’s decision slightly over a year later. ERS noted timely appeal, and presents one question for our review, which we have rephrased: Did the circuit court err in affirming the Board’s decision that the Baltimore County Code did not prevent Officer Bradford from changing his retirement option upon his second retirement from the BCPD? For the reasons that follow, we answer in the negative, and affirm the decision of the circuit court.

BACKGROUND AND PROCEDURAL HISTORY The facts of this case are not in dispute. Officer Bradford joined the BCPD on December 16, 1974. On February 18,1998, he retired from the force, with approximately 23.5 years of service with Baltimore County (the “County”). In addition to his service retirement allowance provided under the Baltimore County Code (the “Code”), 1 Officer Bradford was also entitled to select one of several “optional allowances,” which provide for different means by which the service retirement allowance is paid to a retired employee’s beneficiary after the retiree’s death.

See Code § 5-1-231. Officer Bradford elected Option 4 under what was, at the time, § 23-61 of the Baltimore County Code, 1988 (now § 5-1-231 of the Baltimore County Code, 2003), which ⁷⁹ provided a fixed dollar amount to his wife in the event of his death. Shortly thereafter, he began receiving his monthly retirement allowance, which was reduced by approximately $250.00 a month, the amount designated by Officer Bradford. Less than 18 months later, Officer Bradford was rehired by the BCPD on December 1, 1999.

The record reflects that Officer Bradford was rehired pursuant to “Special Rule No. 2.14,” found in Code § 4-8-102 regarding “SPECIAL PERSONNEL RULES FOR POLICE AND FIRE DEPARTMENTS, which states: ■ Special Rule 2.1U- Former sworn employees. A. Notwithstanding any other provision of these rules and subject to the conditions of this section, the Director of Human Resources, upon written recommendation from the Chief of Police, may hire former employees of the Police Department who previously have been separated from employment from any sworn position in the Department into the position of police office within twenty-four (24) months of the effective date of their separation from employment if: 1. The separation from employment is without prejudice; and 2. The employee has previously been certified as eligible for rehire.

B. The former sworn employee may be considered without further competition for the class of police officer, if a vacant position exists, subject to reasonable inquiries into the background and physical status of the employee between the time of separation from employment and application for rehire as may be deemed appropriate by the Chief of Police. The rehired employee’s anniversary date shall be the date of rehire. Time away shall be considered as leave without pay for the purposes of calculating service and longevity credit. The rehired employee’s sick leave balance at the time of resignation shall be restored unless it was used to determine the creditable service requirement, and other leave accruals shall be based on the adjusted service ⁸⁰ time.

Benefits may not be earned for the time away from county service. Essentially, the effect of Special Rule 2.14 was to place Officer Bradford in the same position he was before he had retired. Following his return, Officer Bradford worked an additional 13 years as a police officer, giving him a total of more than 35 years of County employment. On June 12, 2012, Officer Bradford retired from the BCPD for the second time.

Once again Officer Bradford submitted a retirement application, but this time selected Option 7 for his optional allowance; an option that was not available at the time of his 1998 retirement. Option 7 reads, in pertinent part: (7) Option 7. Subject to subsection (d) of this section, an employee who has completed at least twenty-five (25) years of actual service as a sworn Baltimore County police officer ... may retire with the option of having fifty (50) percent of the retired member’s retirement allowance continued throughout the life of and paid to the original beneficiary upon the retired member’s death. This option shall be provided at no cost to the employee.

Code § 5-l-213(a)(7). As Officer Bradford puts it in his brief: “In other words, while County employees who choose to designate a portion of their monthly pension benefit to their beneficiaries upon their death receive a reduced monthly pension benefit, for police officers with at least 25 years of service, the County Code provides that the designation by an officer to his or her beneficiary does not reduce the officer’s monthly pension benefit.” Sergeant Cole Weston, President of the Baltimore County Fraternal Order of Police Lodge No. 4 (“FOP”), testified before the Board that Option 7 was negotiated between the FOP and the County around 1999 in order to encourage police officers to extend their careers beyond the “normal twenty year service requirement.” Notwithstanding the fact that Officer Bradford met the eligibility requirements for Option 7 and had not begun to collect any retirement payments based on his June 2012 retirement, the Board of Trustees (“BOT”) of ERS denied his ⁸¹ request and instead required him to select Option 4, the election he made in 1998. According to the ERS, his request was denied pursuant to Code § 5-l-231(a), which reads, in pertinent part: “A member who has elected an optional benefit may not change such election after the first payment of the member’s allowance becomes normally due, except as provided below.” In short, because Officer Bradford had already retired and already received benefits under Option 4, the ERS believed that he was no longer allowed to change his selection. On June 11, 2012, in response to a request from the administrator of the ERS for a legal opinion on whether Officer Bradford could change his optional allowance, the County Attorney issued an interoffice memorandum, opining that “the language of the statute is unambiguous” and “[a]s the statute clearly provides that the option may not be changed after ‘first payment’ and [Officer Bradford] received more than a first payment, it clearly provides that he may not change his option.” On June 20, 2012, Officer Bradford appealed the decision to the Board.

An evidentiary hearing was held before the Board on April 4, 2013, and both sides were permitted to submit post-hearing briefs. Based on their review of the record, the Board reversed the decision of the ERS in a written opinion dated October 18, 2013, finding that § 5-l-231(a) was “not applicable” to the circumstances of Officer Bradford’s 2012 retirement. Because the Board’s reasoning is important under this case’s standard of review (discussed infra), we set out the pertinent parts of their opinion at length: [Officer Bradford] contends that his “rehire” in 1999 effectively rendered his retirement in 1998 a nullity. [Officer Bradford’s] argument is based upon the provisions of Special Rule 2.14, supra. The argument is that upon his return to service [Officer Bradford] was no longer retired and therefore not covered by the benefits or restrictions of the retirement.

While clearly [Officer Bradford] could no longer receive the monthly benefits of his retirement the question remains a[s] to whether he was forever barred ⁸² from selecting a retirement option upon his second retirement which did not exist at the time of his first retirement. The County Code does not specifically address this situation. In opposition to the foregoing the County Office of Law argues that a “plain reading” of Code section 5 — [1—]231 (a) establishes that a retiree’s receipt of a retirement allowance forecloses any future benefit option selection. The Office of Law contends the Baltimore County [ERS] is an administrative agency and therefore deference should be given to the ERS with respect to its own regulations and orders.

It is noteworthy that the retirement decision in this matter was made by the Baltimore County Board of Trustee[s] which was established pursuant to Article 3, Title 3, Subtitle 9 of the Baltimore County Code for the purpose of administering the Baltimore County Retirement System. Irrespective of which of the two foregoing County entities is considered as an agency, the courts have recognized that that [sic] the expertise of an agency in its own field should be respected. Salerian v. Md. State Board of Physicians, 176 Md.App. 231 [ 932 A.2d 1225 ] (2007). However, agency decisions receive no special deference on questions of law, which we review de novo.

Talbot County v. Miles Point Property, LLC, 415 Md. 372, 384 [ 2 A.3d 344 ] (2010). The essential first inquiry in a matter of statutory interpretation is the plain meaning of the language of the statute. Section 5-1-231 is silent as to effect of a rehire of a sworn police officer pursuant to Special Rule 2.14 (supra). Likewise Special Rule 2.14 is silent as to the intended effect of an employee’s rehire upon past and future retirement option selection.

A plain reading of Section 5-1-231 clearly bars a retiree from making certain option selections after the first receipt of retirement allowances absent a finding by this Board that the language of Section 5-1-231 creates an ambiguity as to the intended effect of the law as drafted by the Baltimore County Council. In this case it appears that there is an ambiguity in the law. A rehired employee pursuant to Special Rule 2.14 is ⁸³ clearly no longer retired. As such, is an employee considered a retiree at all?

The provisions of Special Rule 2.14(b) create a situation in which the period of retirement is specifically treated as “leave without pay for the purposes of calculating service and longevity credit.” The net effect of the provision would appear to be that the Appellant and other sworn officers similarly situated have an opportunity to change the nature and value of their retirement conditions based upon the continuation of their employment after the period of leave without pay. The reasoning of the ERS as contained in the June 11, 2012 legal opinion from the County Office of Law is as follows as it concerns the effect of Special Rule 2.14 and the provisions 5-1-231 of the County Code: “It may be argued that later enacted law should be read as affording Group 4 retires [sic] the right to change options. Courts also hold that statutes should not be read in a vacuum and that we should consider the larger statutory scheme when considering a statute that otherwise appears to be clear and unambiguous, (citations omitted)” The Maryland Court of Appeals has made it clear that when a body is engaged in statutory interpretation, its goal is to effectuate the intent of the Legislature. Mayor and Town of Oakland v. Mayor and Town Council of Mountain Lake Park, 392 Md. 301, 316 , 896 A.2d 1036, 1045 (2006).

Where, as in the instant case, a perceived ambiguity in the law exists, a reviewing court then turns its attention to other tools of statutory interpretation including: the construction of the statute, the relation of the statute to other laws in a legislative scheme; the legislative history and [t]he general purpose and intent of the statute. Lewis v. State, 348 Md. 648, 653 [ 705 A.2d 1128 ] (1998). The operative law before this Board is Special Rule 2.14. It was enacted after Section 5-1-231 of the Code.

With the enactment of Special Rule 2.14 there was no accompanying language concerning the effect of a retired police officer returning to duty beyond those provisions above cited [sic ]. ⁸⁴ It appears to this Board that the underlying “legislative scheme” was to encourage retired officers to return to duty in exchange for their reinstatement as sworn officers with their prior retirement being treated as leave without pay. Clearly if one has received monetary retirement benefits which are no longer considered retirement benefits it can be interpreted as the legislative body’s intent to render the prior retirement a nullity. Based upon this reasoning the Board concludes that the provisions of 5-1-231 of the County Code are not applicable to the instant situation where a sworn police officer returns to active service with the Police Department pursuant to Special Rule 2.14. ERS filed a timely petition for judicial review, and on December 12, 2014, a hearing was held in the Circuit Court for Baltimore County.

That same day, after hearing arguments from each side, the circuit court issued an order affirming the Board’s decision, for the following reasons as stated on the record during the hearing: So, the facts in this case are that the employee, Officer Bradford retired in 1998. He was rehired by the county almost two years later, in 1999. In other words he was if you will un-retired. He was no longer retired.

He was employed again. And the officer worked another thirteen years with the county. And during that time he was not receiving retirement benefits. In June of 2012 the employee retired again and in — the June, 2012 retirement was a new and distinct retirement event.

He had been re-employed. Stopped retirement benefits. He was not retired. Was working and he retired a new, a second time, in June of 2012.

Again, I believe this is a, a [sic] new retirement event. So, reading together Section 5 — 1—214(b) and Section 5-1-231 of the retirement allowance or the retirement options are made quote, “upon retirement by” by a quote, “a member” who may elect one of the seven options. Again, the member may make his or her election of an option under Section 5-1-231 at the time of his or her retirement. Officer Bradford was quote, “a member” at that time.

He was not yet a retired member. And this was, June of 2012 ⁸⁵ was at the time of his retirement under, in fact and under the statute. In this case Officer Bradford’s retirement date is June 30, 2012. At that time I’m told today [ERS’s counsel] doesn’t believe that Officer Bradford had received his first payment of retirement allowance with respect to his retirement in June of 2012.

Therefore, the language of Section 5-1-231 regarding changing an election does not apply and does not bar his election of option 7. On January 12,2015, ERS noted a timely appeal. DISCUSSION A. Parties’ Contentions ERS’s primary argument is that the circuit court erred in affirming the Board’s decision to allow Mr. Bradford to change his retirement option, “when the plain and unambiguous language of County Code § 5-1-231 precludes such a change.” In ERS’s view, because § 5-l-231(a) explains that the only exceptions to the general prohibition are found in § 5-1-231(b) and (c), and neither of those subsections are applicable to Officer Bradford, Officer Bradford should not be allowed to change his option now. ERS contends that Officer Bradford’s reliance on Special Rule 2.14 is “misguided,” because that rule is “a personnel rule in Article 4 of the Baltimore County Code and not a retirement system statute in Article 5 of the Baltimore County Code.” ERS concludes by arguing that “[d]espite the considerable weight traditionally given in Maryland to an administrative agency’s interpretation and application of the statute the agency administers, ... the Board of Appeals explicitly gave no deference” to ERS, and that error was further compounded when the circuit court “gave only lip service to judicial deference as it went to extraordinary lengths to avoid the plain and unambiguous language of § 5-1-231.” Officer Bradford argues that the Board correctly ruled in his favor, because § 5-1-231 applies only to retirees, and at the time he opted for Option 7, he was an active employee with more than 30 years of sworn service.

Officer Bradford ⁸⁶ contends that ERS’s interpretation would “lead to absurd and harsh results and would render meaningless parts of the County Code,” because to interpret § 5-1-231 to preclude Officer Bradford from changing his option now would invalidate the Code’s “mandate” in Special Rule 2.14 that “a rehired employee’s retirement is to be converted to a leave without pay status.” Finally, Officer Bradford argues that ERS’s argument that neither the Board nor the circuit court afforded sufficient deference to its interpretation of § 5-1-231 is mistaken, because (1) it is the Board’s decision that is to be given deference, and (2). ERS’s claim that it interpreted its own statute is “belied by the fact that the interpretation was not their own but instead performed by a third party, the