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                  THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________


Original
No. 2013-406


                          PETITION OF DAVID ESKELAND
                        (New Hampshire Retirement System)

                               Argued: May 8, 2014
                          Opinion Issued: August 8, 2014

      Vanacore Law Office, of Concord (John G. Vanacore on the brief and
orally), for the petitioner.


      Getman, Schulthess & Steere, PA, of Manchester (Andrew R. Schulman
on the brief and orally), for the respondent.

      LYNN, J. The petitioner, David Eskeland, seeks review of a ruling of the
board of trustees (board) of the respondent, New Hampshire Retirement System
(NHRS), denying his application for an accidental disability retirement pension.
We affirm.

                                            I

      The record supports the following facts. The petitioner began work at the
New Hampshire Department of Fish and Game in 1990 and, accordingly,
became a mandatory member of the NHRS. See RSA 100-A:3 (Supp. 2013).
On December 23, 2009, the petitioner and his wife met with NHRS benefits
specialist Stacie Weaver for retirement counseling. Weaver filled out a
discussion topic form, which the petitioner signed, to memorialize their
meeting. On this form, Weaver marked “service” retirement as the topic of their
discussion and gave the petitioner a service retirement brochure. Neither
“ordinary disability” nor “accidental disability” retirements were marked as
topics of discussion, but instead were marked as not applicable. At this
meeting, the petitioner’s wife briefly “broached the subject” of disability benefits
but, given that the petitioner was “very against” disability retirement at that
point, did not ask for details. The petitioner did not mention disability benefits
at the meeting. Weaver testified that had the petitioner done so, she would
have provided him with a disability retirement brochure and referred him to a
benefits specialist certified to assist him with the disability retirement process.

       On August 6, 2010, the petitioner went to the NHRS office to fill out a
service retirement application. At that time he met with the NHRS’s most
experienced benefits specialist, Ann Forrestall, who reviewed the service
retirement checklist with the petitioner. Like Weaver, Forrestall also testified
that, had the petitioner mentioned disability benefits, she would have
completed a different checklist and encouraged him to apply for both service
and disability benefits simultaneously.

       On October 1, 2010, the petitioner retired from the Department of Fish
and Game with twenty years and three months of creditable service, at which
point he began receiving his service retirement pension. After he retired, a
friend told the petitioner that he should have retired on a disability retirement
allowance rather than on a service retirement allowance. As a result of this
conversation, and three months after he retired, the petitioner filed with the
NHRS an application for accidental disability retirement based upon work-
related injuries he sustained in 2002 and 2004. On December 13, 2011, the
board accepted the hearings examiner’s recommendation to deny the
petitioner’s application for accidental disability retirement. The
recommendation was based upon a medical certification that the petitioner was
not permanently incapacitated by a work-related injury because he had worked
full-time, without accommodation, for six years following his most recently
accepted workers’ compensation injury. The petitioner timely requested that
the board reconsider its decision denying his application, and the board
referred the request to the hearings examiner.1

     In reviewing the request for reconsideration, the hearings examiner
became aware of a potential jurisdictional issue and notified the petitioner that,
because he “was a beneficiary when he applied for disability retirement, his
membership appears to have terminated and the Board of Trustees appears to

1The hearings examiner referred to this internal process as an “appeal” to the board. However,
because the request was made to the same body that made the initial decision, we believe a more
apt description is a request for reconsideration, which is how we describe the process in the text.
See N.H. Admin. Rules, Ret. 204.10 (referring to “motions for rehearing or reconsideration”).



                                                 2
lack jurisdiction to award him a disability retirement.” After a three-day
hearing, the hearings examiner recommended that the board find that it did
not have jurisdiction to grant accidental disability retirement benefits pursuant
to RSA 100-A:6 (Supp. 2013). The board accepted the recommendation on
January 8, 2013, and this appeal followed.

                                        II

      The petitioner makes three arguments on appeal. First, he argues that
the board erred in denying his accidental disability retirement application on
jurisdictional grounds because a statutory exception would have allowed him
to apply for those benefits for up to one year after his retirement date. Second,
he argues that the NHRS breached its fiduciary duty to him by providing
inaccurate advice about the date by which he needed to apply for accidental
disability retirement. Third, he argues that the NHRS’s failure to provide
accurate information constituted a unilateral and/or mutual mistake of fact,
thus enabling the board to rescind his service retirement application and allow
him to apply for accidental disability retirement. We address each argument in
turn below.

        “Because RSA chapter 100-A does not provide for judicial review, a writ
of certiorari is the sole remedy available to a party aggrieved by a decision of
the NHRS.” Petition of Carrier, 165 N.H. ___, ___, 82 A.3d 917, 920 (2013)
(quotations omitted). “Our standard of review is whether the board acted
illegally with respect to jurisdiction, authority or observance of the law,
whereby it arrived at a conclusion which cannot legally or reasonably be made,
or abused its discretion or acted arbitrarily, unreasonably, or capriciously.” Id.
(quotations omitted). “It is not our function to make de novo findings or to
substitute our judgment for that of the board.” Id. (quotations and brackets
omitted).

                                        A

        The petitioner first argues that the statutory exception contained in RSA
100-A:6, V allows members to apply for disability benefits within one year of
ceasing their membership. Resolving this issue requires that we engage in
statutory interpretation. State Employees’ Assoc. of N.H. v. State of N.H., 161
N.H. 730, 738 (2011). “The interpretation of a statute is a question of law,
which we review de novo.” Id. “In matters of statutory interpretation, we are
the final arbiter of the intent of the legislature as expressed in the words of the
statute considered as a whole.” Id. “We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning.” Id. “We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include.” Id. “We construe all



                                        3
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result.” Id. “Moreover, we do not consider words and phrases in
isolation, but rather within the context of the statute as a whole.” Id. “This
enables us to better discern the legislature’s intent and to interpret statutory
language in light of the policy or purpose sought to be advanced by the
statutory scheme.” Id. at 738-39.

        We begin by examining the language of RSA 100-A:6, which governs
disability retirement benefits. It provides, in pertinent part: “Upon the
application of a group II member in service . . . , any such member shall be
retired by the board of trustees on an accidental disability retirement
allowance” if certain medical criteria are met. RSA 100-A:6, II(c)(1).2 There are
thus two requirements to apply for accidental disability retirement: first, the
person must be a “member”; and, second, the member must be “in service.”
RSA 100-A:1, X (2013) defines “member” as “any person included in the
membership of the retirement system, as provided in RSA 100-A:3.” RSA 100-
A:3, V provides, in relevant part, that “[a] member shall cease to be a member if
. . . he or she becomes a beneficiary or dies.” A beneficiary, in turn, is defined
as “any person receiving a retirement allowance or other benefit as provided
herein.” RSA 100-A:1, XI (2013); see also RSA 100-A:7 (2013) (providing that if
a beneficiary is restored to service, “the beneficiary’s retirement allowance shall
cease, the beneficiary shall again become a member of the retirement system
and the beneficiary shall contribute at the percentage payable pursuant to RSA
100-A:16, I(a)” (emphasis added)).

      The statute clearly states that an individual must be a member to apply
for an accidental disability retirement allowance, and that an individual cannot
be both a “member” and a “beneficiary.” The petitioner concedes that he
became a beneficiary when he began collecting his service retirement pension.
Under the plain language of the statute, then, the petitioner’s status as a
beneficiary precluded him from meeting the threshold “membership”
requirement laid out in RSA 100-A:6, and thus from applying for accidental
disability retirement.

      The petitioner argues that even though he was a beneficiary at the time
he applied for accidental disability retirement, RSA 100-A:6, V permitted the
board to waive the membership requirement. This statute states:

           The provisions of this paragraph shall apply, notwithstanding
       any other provisions of RSA 100-A:6 to the contrary. The board of
       trustees, as the interests of justice may require, may waive the
       requirement that a group I or group II member be in service at the


2 Conservation officers employed by the Department of Fish and Game are group II members of
the NHRS. See RSA 100-A:1, VII(a) (2013).



                                              4
      time application is made for ordinary and accidental disability
      retirement benefits under this section, provided that application for
      disability retirement benefits is made within one year of the date
      the member’s contribution to the New Hampshire retirement
      system ceases.

(Emphasis added.) The plain and ordinary meaning of the statutory language
does not support the petitioner’s argument. The statute states that the board
may waive the requirement that a group II member be in service at the time he
or she applies for disability retirement; it does not waive the requirement that
the individual be a member at that time. Thus, this provision would apply, for
example, to a member who had not retired, but was not in service due to
reasons other than retirement. To accept the petitioner’s interpretation, we
would be required to import language into the statute that the legislature did
not see fit to include, a task we are not at liberty to undertake. See State
Employees’ Assoc., 161 N.H. at 738. Accordingly, we agree with the NHRS that
RSA 100-A:6, V is a narrow statutory exception that permits waiver only of the
“in service” requirement, but does not affect the membership requirement.

      The petitioner further argues that even if the statutory exception does
not, on its face, permit waiver of the membership requirement, the use of the
phrase “member or retired member” in other parts of the statute creates an
ambiguity as to the definition of the term “member.” See RSA 100-A:6, III(c),
(d). Specifically, the petitioner asserts that by using this phrase, the statute
suggests that a member can also be a beneficiary. Thus, he asserts, it creates
an ambiguity that allows us to consult legislative history for guidance in
interpreting the definition of “member.” We disagree.

       In considering the statute as a whole, we conclude that the phrase
“member or retired member” does not create ambiguity. First, the term
“member” is clearly defined in RSA 100-A:1, X and RSA 100-A:3, I, V, as
detailed above. By its own terms, RSA 100-A:1 (2013) defines certain “words
and phrases as used in [RSA chapter 100-A] unless a different meaning is
plainly required by the context.” RSA 100-A:1 (emphasis added); see State
Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 341 (2009).
Here, the petitioner does not argue, nor do we conclude, that the context
“plainly requires” us to depart from that section’s definition of the term
“member.” Second, the use of the word “or” in the phrase “member or retired
member” shows that a retired member is not a member within the meaning of
the statute. Rather, they are distinct terms and, thus, the use of the term
“retired member” does not cast doubt on the meaning of the plainly defined
term “member.” Third, the statute uses the term “retired member”
interchangeably with “retiree,” see RSA 100-A:13, II(a) (2013), showing, albeit
imprecisely, that the term refers to former, not current, members of the NHRS.
See RSA 100-A:13, I (2013) (distinguishing “members” from “retirees”); see also



                                        5
RSA 100-A:1, XXIII (2013) (defining “retirement” as “withdrawal from active
service with a retirement allowance granted under the provisions hereof”
(emphasis added)); RSA 100-A:1, XI (defining “beneficiary” as “any person
receiving a retirement allowance or other benefit as provided herein” (emphasis
added)); RSA 100-A:3, V (stating that a “member shall cease to be a member” if
“he or she becomes a beneficiary”).

       Because we find that the phrase “member or retired member” does not
create ambiguity, and because the statutory exception is clear on its face, we
need not consider the legislative history of the retirement statute. See Union
Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 676 (2011) (“When
interpreting a statute, we first look to the plain meaning of the words used and
will consider legislative history only if the statutory language is ambiguous.”
(quotation omitted)). We also need not address the second requirement that a
member be “in service” to apply for disability retirement, as the petitioner did
not meet the membership requirement. Accordingly, we conclude that the
NHRS did not err when it found that the petitioner was precluded from
applying for accidental disability retirement because he was no longer a
member and no statutory exception to membership applied.

                                        B

      The petitioner next argues that the NHRS breached its fiduciary duty to
him by providing inaccurate advice regarding his disability retirement
application. Specifically, he contends that the NHRS was obligated to tell him
that he needed to apply for disability retirement before he retired and that, had
he been accurately informed, he would have applied for disability retirement
rather than service retirement. We find this argument unavailing.

       “Under the common law of trusts, the board owes the NHRS members
and beneficiaries a fiduciary obligation to manage the NHRS for the benefit of
its members and beneficiaries.” Petition of Barney, 142 N.H. 798, 802 (1998)
(quotations and brackets omitted). However, we have held that this duty “does
not require the board to intervene and counsel each member.” Id. (quotations
and citation omitted); cf. Maxa v. John Alden Life Ins. Co., 972 F.2d 980, 985
(8th Cir. 1992) (noting that the majority of courts have not imposed upon
ERISA plan fiduciaries the duty to individually notify participants of the
specific impact of a plan’s general terms upon them). “To read RSA chapter
100-A as placing such an obligation on the NHRS would effectively render it a
financial counseling and investment service, a service far more comprehensive
than that required of the board in its capacity as trustee.” Barney, 142 N.H. at
802.

      The petitioner’s argument that the NHRS breached its fiduciary duty to
him fails for several reasons. First, because the NHRS is not a financial



                                        6
counseling and investment service, it had no general fiduciary duty to advise
the petitioner about all possible retirement options. This is particularly so
given that the petitioner indicated that he was only interested in service
retirement and was “very against” disability retirement. Second, although the
NHRS concedes that under certain circumstances, it “could undertake a
special fiduciary duty to a member with respect to specific advice rendered to
that member,” the record does not contain evidence that would have given rise
to a special fiduciary duty under the circumstances presented here. See
Schneider v. Plymouth State College, 144 N.H. 458, 462 (1999) (“A fiduciary
relationship . . . exists wherever influence has been acquired and abused or
confidence has been reposed and betrayed.” (quotations omitted)). To the
contrary, the hearings examiner found that the petitioner did not seek advice
regarding disability retirement, but instead was focused upon only service
retirement.3 Further, there is no evidence in the record, and the hearings
examiner did not find, that the NHRS independently brought up or in any way
sought to advise the petitioner about disability retirement prior to his
retirement on a service pension. See Carrier, 165 N.H. at ___, 82 A.3d at 920
(it is not our function to make de novo findings of fact, or substitute our
judgment for that of the board). For these reasons, we conclude that the board
did not err in finding that the NHRS did not breach a fiduciary duty to the
petitioner.

                                                 C

      Finally, the petitioner argues that the NHRS’s inaccurate advice
constituted either a unilateral or a mutual mistake, thus requiring the board to
rescind his service retirement allowance and allow him to reapply for disability
retirement. He specifically contends that certain employees of the NHRS were
mistaken as to the time frame within which he could apply for disability
retirement, as evidenced in part by the fact that they accepted his disability
retirement application after he had already retired under a service retirement
pension. Once again, we disagree.

      In order for the doctrine of mutual mistake to afford relief, there must be
a causal connection between the alleged mistake and some detrimental action


3   The hearings examiner made the following findings:
         [T]he weight of the evidence indicates that Mrs. Eskeland asked about disability
         retirement at least once but that the Petitioner, the subject of the retirement
         counseling, was focused on applying for a service retirement. The testimony of
         two Benefits Specialists that they would have followed a different counseling
         procedure if the Petitioner had indicated he wanted to apply for a disability
         retirement along with his service retirement and the Petitioner’s signature on a
         retirement counseling checklist that indicated that disability was “N/A” support
         the conclusion that he did not seek the advice of the employees of the retirement
         system with regard to a disability retirement until 1/20/12, after he had retired.



                                                 7
by the party seeking relief. See Derouin v. Granite State Realty, Inc., 123 N.H.
145, 147 (1983) (“Where the parties to a transaction are mutually mistaken as
to a basic assumption on which the contract is made and that mistake has a
material effect upon the agreed transaction, the contract is voidable by the
adversely affected party.” (emphasis added)). Here, because the actions of the
NHRS employees in accepting his application for disability retirement occurred
after the petitioner had begun receiving a service retirement allowance, such
conduct could not have impacted his original retirement decision.

       As for unilateral mistake, we have observed that “[r]escission is available
when a unilateral mistake relates to the substance of the consideration, it
occurred despite the exercise of ordinary care, enforcement would be
unconscionable, and the other party can be returned to the status quo.”
Barney, 142 N.H. at 802. “A mistake is a belief that is not in accord with the
facts.” Id. (quotations omitted). Here, even if we assume that a person’s
mistaken understanding of the meaning of a statute could be sufficient to
invoke the doctrine of unilateral mistake, but see State v. Stratton, 132 N.H.
451, 457 (1989) (“Ignorance of the law is no excuse.”), the record does not show
that the petitioner’s belief that he could convert to a disability retirement
allowance after he began receiving a service retirement allowance is consistent
with the exercise of ordinary care. As noted previously, the hearings officer
found that when the petitioner first met with Ms. Weaver, his wife “broached
the subject” of disability retirement. Yet, he was not interested in pursuing
that option and made no inquiry into the requirements and applicable
limitations on his ability to choose disability retirement. Nor does the
petitioner offer any developed argument as to how, or why, it is unconscionable
to limit him to the benefits he currently receives under his service retirement
pension. See Appeal of Northern New England Tele. Operations, LLC, 165 N.H.
267, 275 (2013) (judicial review not warranted for claims unsupported by
adequately developed legal argument). Accordingly, we find that the board did
not err in rejecting petitioner’s argument regarding unilateral and/or mutual
mistake.

                                        III

      For the reasons stated above, we hold that the NHRS board properly
denied the petitioner’s application for an accidental disability retirement
pension.

                                                  Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.




                                        8
