         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2016 Term

                                                                           FILED
                                                                        June 3, 2016
                                   No. 15-0281                            released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

                        CYNTHIA RINGEL-WILLIAMS,

                            Petitioner/Petitioner Below

                                          v.

      WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD,

                          Respondent/Respondent Below


                 Appeal from the Circuit Court of Kanawha County

                      The Honorable Carrie Webster, Judge

                           Civil Action No. 11-AA-28


                                   AFFIRMED



                            Submitted: April 6, 2016

                              Filed: June 3, 2016




Andrew J. Katz, Esq.                           J. Jeaneen Legato, Esq.
The Katz Working Families’ Law Firm, LC        West Virginia Consolidated Public
Charleston, West Virginia                       Retirement Board
Attorney for Petitioner                        Charleston, West Virginia
                                               Attorney for Respondent

JUSTICE WORKMAN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “On appeal of an administrative order from a circuit court, this Court

is bound by the statutory standards contained in W. Va. Code § 29A–5–4(a) and reviews

questions of law presented de novo; findings of fact by the administrative officer are

accorded deference unless the reviewing court believes the findings to be clearly wrong.”

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).



              2.     “Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v.

State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995).



              3.     “Where the language of a statute is clear and without ambiguity the

plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt.

2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).




                                             i
WORKMAN, Justice:

              This is an appeal from the Circuit Court of Kanawha County’s order

affirming the West Virginia Consolidated Public Retirement Board’s (hereinafter “the

Board”) decision finding that petitioner was not previously eligible to participate in the

Teachers’ Retirement System (hereinafter “TRS”) because she was not “regularly

employed for full-time service” as defined by West Virginia Code § 18-7A-3 (1986).

The Board found, and the circuit court agreed, that West Virginia Code § 18-7A-3(11)

requires minimal employment for 200 days throughout the employment term to be

eligible to participate in the TRS and since petitioner worked only 120 days a year, she

was not eligible.



              Based upon our review of the briefs, legal authorities, appendix record, and

upon consideration of arguments of counsel, we agree with the circuit court’s conclusion

that petitioner was not statutorily eligible to participate in the TRS and therefore affirm

the circuit court’s February 27, 2015, order.



                     I.     FACTS AND PROCEDURAL HISTORY

              Petitioner has been employed by the Raleigh County Board of Education

(hereinafter “Raleigh County BOE”) as a physical therapist since 1987. At the inception

of her employment, she signed a “Teacher’s Probationary Contract of Employment,”

which provided that she would be paid an annual salary “for an annual employment term

of 120 days,” which equated to three days a week during the school calendar year. In

                                                1

1989, petitioner executed a “Teacher’s Continuing Contract of Employment,” which

likewise provided that she was to be employed “for an employment term of 120 days.”



              When petitioner executed her probationary contract, she also executed a

“Membership Enrollment” form provided by the Raleigh County BOE requesting to be

enrolled in the TRS.1 Petitioner testified that health care and retirement benefits were

part of her rationale for accepting employment with the Raleigh County BOE.

Contributions on petitioner’s behalf were made to the TRS continuously from 1987

through 1991, at which time she elected to enroll in the newly-created Teachers’ Defined

Contribution System (“TDC”)2 and “freeze” her TRS contributions. In 1999, she elected

to transfer her TRS funds and service credit into the TDC. In 2008, petitioner chose to

transfer back to the TRS.3 In the process of auditing the transferring members, the Board

ascertained that petitioner was ineligible to participate in either plan because she was




       1
        The TRS, as governed by West Virginia Code § 18-7A-1 (1941) et seq., is a
“defined benefit” plan, that is, it identifies the specific benefit that will be payable upon
retirement.
       2
        The TDC, as governed by West Virginia Code § 18-7B-1 (1990) et seq. is a
“defined contribution” plan, that is, the amount contributed is set and invested into
mutual funds; as a result, the payout at retirement fluctuates depending on how the
investments have performed.
       3
        Due to the performance of TDC, the Legislature attempted to merge the TRS and
TDC; upon objection of the members, the Legislature permitted employees to elect in
which plan they would participate as set forth in West Virginia Code § 18-7D-1 (2008) et
seq.

                                             2

only working 120 days a year. The Board sent petitioner a letter advising that the money

contributed would be returned to her and her employer.4



              Petitioner appealed the Board’s determination and a hearing before a

hearing examiner ensued.       Petitioner testified that throughout her enrollment in the

various retirement systems, she received statements which reflected that she was annually

receiving approximately 60% of a full year credit, the equivalent of her three-day/week,

120-day employment term.         In 2002, petitioner received a “participant data” form

summarizing the member’s participation and requesting any corrections. The letter with

the form stated: “Keep in mind that to receive one full year of service credit in the TDC

System you must work and be paid for at least 200 days, anything less credits you with a

fractional part of the year.” Petitioner testified that she understood this to mean that those

working less than 200 days were not ineligible, but rather, would merely receive

fractional service credit for the year.



              Terasa Miller, Deputy Director and Chief Operating Officer of the Board,

testified that it has always been the Board’s position that the West Virginia Code makes

retirement available only to full-time employees who work a 200-day contract year. She

confirmed that annual reports received by the Board in fact reflected that petitioner was

working only 120 days. However, Deputy Miller testified further that there was nothing

       4
        The Board represented that approximately 100 other TRS members were
likewise found to be erroneously enrolled in the system. The Board provides no
information regarding the particular working arrangements of these members.

                                              3

systematically in place to alert the Board to members who worked fewer than 200 days in

any particular year as mid-year hires are commonplace, which would result in fewer than

200 days reported. Deputy Miller testified that the error in enrollment was that of

petitioner’s employer, the Raleigh County BOE, and that no one at the Board made any

assurances of eligibility to petitioner.



              The hearing examiner determined that the definitions contained in West

Virginia Code § 18-7A-3 require a 200-day contract before one may participate in the

TRS. 5 Specifically, he found that, to be eligible, a “nonteaching member” must be

“regularly employed for full-time service” per West Virginia Code § 18-7A-3(18), which

is collectively defined by West Virginia Code §§ 18-7A-3(11) and -3(27) as requiring

twenty employment days per month, for at least ten months. However, despite the

Board’s position that petitioner was ineligible to participate in either plan, the hearing

examiner found that there was no such 200-day requirement to participate in the TDC due

to the absence of a statutory definition for “employment term” in West Virginia Code §




       5
         The operative definitions contained in the 1986 version of West Virginia Code §
18-7A-3 applicable to petitioner’s case were not then enumerated. The hearing examiner
and the parties, however, reference the definitions as enumerated in the current version of
the statute. The substance of the definitions has not been altered from the 1986 version.
Therefore, for the sake of consistency and clarity, we will reference the current
enumeration as well.


                                            4

18-7B-2. 6   Therefore, the hearing examiner found that petitioner was eligible to

participate in the TDC. 7     The Board adopted the hearing examiner’s recommended

decision and the circuit court affirmed the decision on appeal utilizing the same rationale.

The circuit court further found that the Board was not equitably estopped from precluding

petitioner’s participation in the TRS. This appeal followed.



                             II.    STANDARD OF REVIEW

              Syllabus point one of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518

(1996) provides:

                      On appeal of an administrative order from a circuit
              court, this Court is bound by the statutory standards contained
              in W. Va. Code § 29A–5–4(a) and reviews questions of law
              presented de novo; findings of fact by the administrative
              officer are accorded deference unless the reviewing court
              believes the findings to be clearly wrong.

More specifically, “[i]nterpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v.




       6
         In 2013, the Legislature amended West Virginia Code § 18-7B-2 to include a
definition for “employment term” which is essentially identical to that contained in West
Virginia Code § 18-7A-3(11).
       7
         Accordingly, only petitioner’s service credit and accrued earnings while enrolled
in TRS are at issue, consisting of years 1987-1992 and 2008-2010; the Board maintains
that this constitutes a total of 4.879 years of service credit. At or around the time of the
administrative hearing, petitioner switched to a five-day, full-time work week and is now
participating in TRS with approximately thirteen years of service credit.


                                             5

State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995). With this standard as guidance,

we proceed to the parties’ arguments.



                                   III.   DISCUSSION

             This case requires the Court to determine whether the definitions contained

in West Virginia Code § 18-7A-3 yield the interpretation that a non-teaching employee

must work 200 days to be eligible to participate in the TRS, the defined-benefit

retirement plan. If there is such a requirement, the Court must then determine whether

the Board is equitably estopped from disallowing petitioner’s accrued participation and

earnings while erroneously enrolled in the plan.



Statutory Interpretation

             West Virginia Code § 18-7A-1 et seq. permits participation in the

retirement plan by “non-teaching members.”         There are three operative definitions

contained in West Virginia Code § 18-7A-3 relevant to the issue presented.8 A “non­

teaching member” is defined as “any person . . . who is regularly employed for full-time

service by . . . [a]ny county board of education[.]”      W. Va. Code § 18-7A-3(18)

(emphasis added).    “Regularly employed for full-time service” is defined as being

employed “in a regular position or job throughout the employment term regardless of the

number of hours worked or the method of pay.” W. Va. Code § 18-7A-3(27) (emphasis

      8
       This Section has been amended several times since petitioner’s enrollment,
however, none of these amendments have affected the substance of these definitions.


                                            6

added). An “employment term” is defined as employment “for at least ten months, a

month being defined as twenty employment days.”            W. Va. Code § 18-7A-3(11)

(emphasis added). “Employment days” are not defined in the statute. 9 The hearing

examiner, Board, and circuit court read these statutory definitions, in pari materia, as

defining an eligible non-teaching member as one who is employed in a regular position

for 200 days during the school calendar year.



              Petitioner argues that these definitions are ambiguous and suggest that the

Legislature simply intended that one work regularly “throughout the employment term”

without regard to the total number of days or hours worked. In particular, petitioner

urges that reading the definitions to require 200 days of service for retirement eligibility

potentially yields an absurd result given the inclusion of the phrase “regardless of the

number of hours worked” in the language of West Virginia Code § 18-7A-3(27).

Petitioner argues that requiring 200 days of work attendance, but without regard to hours

worked, would essentially permit a person to work half- or partial days, five days a week,

twenty days a month for 200 days (for a cumulative 100 days of work) and be eligible for

retirement, whereas one who works all day only three days a week (for a cumulative 120

days of work) is not eligible. As such, petitioner argues that the “absurd results” doctrine




       9
       However, “employment day” is defined in the regulations governing the TDC.
Code of State Regulations § 162-3-3.1.f provides that “employment day” means “a day a
member is paid compensation for full-time service by a participating employer.”


                                             7

of statutory construction mandates a contrary interpretation.10 Finally, petitioner explains

the ten-month/twenty-day language of West Virginia Code § 18-7A-3(11) as the

Legislature “simply defining the duration of the ‘employment term’ as ten months of 20­

day months,” rather than ten, full calendar months.




       10
        Petitioner correctly notes that this Court has acknowledged its duty “to avoid
whenever possible a construction of a statute which leads to absurd, inconsistent, unjust
or unreasonable results.” State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537
(1990). However, we have likewise observed:

              This does not mean, however, that we are at liberty to
              substitute our policy judgments for those of the Legislature
              whenever we deem a particular statute unwise. As one
              commentator has astutely observed,

                     the absurd results doctrine should be used
                     sparingly because it entails the risk that the
                     judiciary will displace legislative policy on the
                     basis of speculation that the legislature could
                     not have meant what it unmistakably said.

              2A Norman J. Singer, Statutes and Statutory Construction §
              46:07, at 199 (6th ed. 2000) (footnote omitted). The absurd
              results doctrine merely permits a court to favor an otherwise
              reasonable construction of the statutory text over a more
              literal interpretation where the latter would produce a result
              demonstrably at odds with any conceivable legislative
              purpose.

Taylor-Hurley v. Mingo Cty. Bd. of Educ., 209 W.Va. 780, 787-88, 551 S.E.2d 702, 709­
10 (2001) (emphasis added).


                                             8

              In response, the Board counters that, quite simply, one must have what is

commonly known as a 200-day contract to participate in the TRS.11 The Board argues

that the statute is unambiguous and therefore is not susceptible to our canons of statutory

construction.12



              This Court recently considered a highly analogous factual scenario,

although dealing with the Public Employees Retirement System (hereinafter “PERS”)

statute instead of the TRS statute.     In Curry v. West Virginia Consolidated Public

Retirement Board, 236 W. Va. 188, 778 S.E.2d 637 (2015), petitioner claimed to be a

regular, full-time employee because he provided services in each month throughout the

calendar year, although his aggregate hourly service was a mere fraction of the 1,040

hours typically considered full-time. Id. at ___, 778 S.E.2d at 642. This Court rejected

petitioner’s position that this entitled him to participation in PERS, reasoning that such an

argument would render someone who worked only an hour a month, each month, eligible

to participate: “This outcome would be patently contrary to W. Va. Code § 5-10-2(11),


       11
         The Board appears to have relented on its position that this requirement exists in
both the TRS and the TDC; at a minimum, this issue is not on appeal.
       12
          The Board does not persuasively counter petitioner’s contention that allowing
participation by someone who works only partial days on a daily basis yields an absurd
result. Instead, the Board simply notes that outcome “does not change the clear mandates
of the statute.” We note, however, that petitioner has provided no evidence that any such
individuals—regularly employed, full-time employees, who work a minimum of 200
days, but less than a customary seven-and-a-half/eight hour workday—are currently
enrolled in and lawfully eligible to receive retirement under the TRS.


                                             9

which sets forth the criteria for eligibility to participate in PERS, namely, employees who

provide regular full-time service to this State.” Id. (emphasis added). The Court further

dismissed petitioner’s argument because it “disregards the specific definition of the term

‘month,’ as provided [by statute],” observing that the PERS statute expressly provides

that an individual must work a minimum of ten days in any calendar month to receive a

month of service credit.13 Id.



              Although the TRS definitions are not as explicit as those contained in the

PERS statute at issue in Curry, we decline to find that they create ambiguity about

petitioner’s eligibility for retirement. With regard to statutory interpretation, this Court

has stated:   “To ascertain the Legislature’s intent, ‘[w]e look first to the statute’s

language. If the text, given its plain meaning, answers the interpretive question, the

language must prevail and further inquiry is foreclosed.’” Hammons v. W. Va. Office of

Ins. Comm’r, 235 W. Va. 577, 584, 775 S.E.2d 458, 465 (2015) (quoting Appalachian

Power Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573, 587, 466 S.E.2d 424, 438

(1995)). As is well-established, “[w]here the language of a statute is clear and without

ambiguity the plain meaning is to be accepted without resorting to the rules of

interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).




       13
         West Virginia Code § 5-10-14(a)(1) (2013) provides: “In no event may less
than ten days of service rendered by a member in any calendar month be credited as a
month of service[.]”

                                            10

               Carefully tracking the operative definitions to create an encompassing rule,

it is clear that the ultimate definition of “employment term” prescribes a minimal

frequency and regularity of employment service to be eligible to participate in the TRS,

i.e., at least ten months, twenty employment days constituting a “month,” for a total of

200 employment days. Petitioner’s suggestion that the twenty day/ten month language

merely outlines the parameters of the employment term is belied by the use of the phrase

“at least” in the definition: “‘Employment term’ means employment for at least ten

months, a month being defined as twenty employment days.” W. Va. Code § 18-7A­

3(11) (emphasis added). The use of “at least” plainly denotes a minimal prerequisite, and

would be unnecessary surplusage if the intent of this language were merely to describe

the parameters of a typical school year. In that regard, even if this Court were to deem

the statute ambiguous, petitioner’s interpretation would run afoul of this cardinal rule of

statutory interpretation: “In parsing the language of a statute for its meaning, we are

mindful that ‘a cardinal rule of statutory construction is that significance and effect must,

if possible, be given to every section, clause, word or part of the statute.’” Meadows v.

Wal-Mart Stores, Inc., 207 W. Va. 203, 214, 530 S.E.2d 676, 687 (1999) (quoting State v.

General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 147, 107 S.E.2d 353, 359

(1959)).   To embrace petitioner’s interpretation would render the term “at least”

superfluous.



               Although petitioner argues that inclusion of “regardless of the number of

hours worked” in the definition of “regularly employed for full-time service” suggests

                                             11

that quantity of service is irrelevant, such a reading would be as nonsensical as that

rejected in Curry. Not coincidentally, the school year is traditionally considered to be

comprised of 200 days—180 instructional and twenty non-instructional days. See C.S.R.

§ 126-73-6.1.a (requiring the school calendar to allow for an “employment term of at

least 200 days . . . for all regular, full-time employees”) and § 126-73-6.1.c (“The

minimum employment term shall consist of no less than 180 separate days of instruction,

and 20 noninstructional days . . .”). It would seem simply that the Legislature determined

that hours should not be parsed, but that daily, full-time service throughout the school

year is a prerequisite. Irrespective of which days or how long during a day petitioner

works, her old schedule of three days a week simply would not allow her to reach 200

days of service in a school calendar year. 14 Accordingly, we agree with the Board and

circuit court’s conclusion that petitioner was not previously statutorily eligible to

participate in the TRS.



Equitable Estoppel

              Petitioner next argues that if the Court finds the statute requires 200 days of

service for eligibility in the TRS, the Board is equitably estopped from depriving her of


       14
          Moreover, petitioner fails to properly venerate the significance of the term “full­
time,” as used throughout the statute. While this term is not specifically defined, it is
replete throughout the statutory scheme. Petitioner maintains focus on the regularity and
scheduling of her service, rather than the simple quantity. However, in absence of a
definition to the contrary, being considered “full-time” would appear to foreclose
anything less than a level of daily service throughout the entirety of the school year
sufficient to be deemed a “full-time” employee.

                                             12

her accrued earnings and service credit. Petitioner argues strenuously that the Board was

on notice that she was only a 120-day employee, yet continued to report her—via

contribution statements—as a participating member in the TRS. Petitioner argues that

she took the position to obtain retirement and had she known she was ineligible, she

would have either found another job or changed her work arrangements to work a five-

day work week. The Board counters that it had no actual knowledge that petitioner was

improperly enrolled until the 2008 audit and that reporting of fewer than 200 hours was

commonplace when teachers were hired mid-year; therefore, there would be nothing

suspect about an employee who showed only a partial year’s service credit.               More

importantly, the Board argues that it did not misrepresent petitioner’s eligibility to her

and it cannot confer eligibility in absence of statutory authority permitting it to do so.



              Once again, the Board clearly has the weight of authority in its favor. This

Court has made plain that, while equitable estoppel may apply to the State, it applies only

where the State makes a misrepresentation upon which an individual detrimentally relies.

In West Virginia Consolidated Public Retirement Board v. Jones, 233 W. Va. 681, 686,

760 S.E.2d 495, 500 (2014), this Court held that estoppel “does not apply in instances

where a public employer erroneously informs an employee that he or she is eligible to

participate in PERS.” In Jones, the Court contrasted Hudkins v. Public Retirement

Board, 220 W. Va. 275, 647 S.E.2d 711 (2007) where a Retirement Board employee

made a false representation giving rise to equitable estoppel, with cases like Jones, where

the employer makes the error. Id. at 687, 760 S.E.2d at 501. The Court found it “neither

                                              13

legally sound nor prudent to expand our holding in Hudkins” to apply where the

employer misrepresents eligibility. Id. In this case, it is undisputed that no Retirement

Board employee verified petitioner’s eligibility; rather, her employer’s payroll clerk

mistakenly enrolled her and/or permitted her to enroll. We reject petitioner’s argument

that the automated issuance of statements showing a record of contributions and earnings

is tantamount to the Board essentially “vouching” for eligibility.



              While we are necessarily sympathetic to petitioner’s situation and monetary

losses, this Court is simply not at liberty to confer statutory eligibility where none exists.

See In re Cain, 197 W. Va. 514, 518 n.9, 476 S.E.2d 185, 189 n.9 (1996) (“[T]his Court

may not confer retirement benefits for employment where the legislature has not so

authorized.”). However, we would be remiss if we did not express our continued dismay,

much as we did in Jones,15 at the lack of a systemic failsafe on the part of the Board to

mitigate against any such occurrences.         While we recognize the expediencies of

administering the retirement fund consisting of approximately 68,000 members with

limited staffing, it would appear wise for the Board to weigh the efforts and expense of

defending against claims such as petitioner’s, along with the potential monetary losses to

such individuals, with any associated cost or effort to create a system which would serve

to more promptly and effectively identify improper enrollment.


       15
         In Jones, the Court noted that it found “the Board’s dilatoriness in discovering
Mr. Jones’ ineligibility for PERS membership to be inexcusable[.]” 233 W. Va. at 687,
760 S.E.2d at 501.

                                             14

                              IV.    CONCLUSION

             For the reasons stated herein, we therefore affirm the circuit court’s

February 27, 2015, order.



                                                                         Affirmed.




                                        15

