          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               September 2015 Term

                                _________________                 FILED
                                                              October 7, 2015
                                   No. 14-0846                  released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                _________________             SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA



                               ARDEN J. CURRY, II,

                             Petitioner Below, Petitioner


                                          v.


       WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD,

                      Respondent Below, Respondent




                  Appeal from the Circuit Court of Kanawha County

                           The Honorable Tod J. Kaufman

                                Case No. 14-AA-28


                                    AFFIRMED



                           Submitted: September 2, 2015

                              Filed: October 7, 2015



Lonnie C. Simmons, Esq.                              J. Jeaneen Legato, Esq.
DiTrapano, Barrett, DiPiero, McGinley                Charleston, West Virginia
& Simmons, PLLC                                      Counsel for Respondent
Charleston, West Virginia
Counsel for Petitioner



CHIEF 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. Tax

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



              3. “‘The “clearly wrong” and the “arbitrary and capricious” standards of

review are deferential ones which presume an agency’s actions are valid as long as the

decision is supported by substantial evidence or by a rational basis.’ Syllabus Point 3, In re

Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).” Syl. Pt. 2, Webb v. W. Va. Bd. of Med., 212

W.Va. 149, 569 S.E.2d 225 (2002).



              4. “‘Statutes which relate to the same subject matter should be read and

applied together so that the Legislature’s intention can be gathered from the whole of the


                                              i
enactments.’ Syl. Pt. 3, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va.


108, 219 S.E.2d 361 (1975).” Syl. Pt. 4, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318


S.E.2d 446 (1984).





                                            ii

Workman, Chief Justice:



              This is an appeal by Arden J. Curry, II, (hereinafter “Petitioner”) from a

decision of the Circuit Court of Kanawha County affirming a decision of the West Virginia

Consolidated Public Retirement Board (hereinafter “Board”) denying the Petitioner’s request

to participate in the Public Employees Retirement System (hereinafter “PERS”) based upon

the conclusion that he was not a full-time employee of the West Virginia Department of

Agriculture (hereinafter “WVDA”).



              The Petitioner contends that the trial court erred in concluding he did not meet

the statutory eligibility requirement of “full time” employment for participation in PERS.

He maintains that this error is demonstrated by the undisputed fact that he worked in a job

normally requiring twelve months per year of service, which was the definition of full-time

employment for most of the years the Petitioner was employed. Subsequent to thorough

review of the briefs, the record presented to this Court, the arguments of counsel, and

applicable precedent, this Court affirms the decision of the Circuit Court of Kanawha

County.



                             I. Factual and Procedural History

              From 1984 to 2013, with the exception of approximately four years, the


                                              1

Petitioner served as general counsel to the WVDA. He worked from his own private law

office and used the telephones, computers, and clerical staff located in his own office. He

was also responsible for costs, which were not reimbursed by the WVDA. Although he was

not required to keep a record of time spent working for the WVDA, he estimates that he

spent approximately 200 to 300 hours per year as general counsel. The Petitioner was

required to perform all legal services the WVDA requested of him, and he emphasizes that

he was available to the WVDA at all times to provide counsel. While he acknowledges he

never worked 1,040 hours or more per year, he contends that he did provide twelve months

a year of service, in terms of his availability for advisement purposes.



              The WVDA submitted employer and employee contributions to PERS on the

Petitioner’s behalf for approximately twenty-one years. Employer reports submitted to the

Board indicated that the Petitioner was considered a full-time employee by the WVDA. The

Board relied upon the employer reporting form and was unaware of the Petitioner’s limited

hours of employment until the Board received correspondence from the West Virginia

Legislative Auditor’s Office regarding this issue. By letter dated May 15, 2013, Londa

Sabatino, Audit Manager, West Virginia Legislature Joint Committee on Government and

Finance, notified the Board’s Executive Director, Jeffrey E. Fleck, of her office’s belief that

the Petitioner was ineligible for participation in PERS. She attached a copy of a legal

opinion dated May 8, 2013, drafted by Emma Case, counsel to the Joint Committee, to


                                              2

support the Committee’s position.



              By letter dated June 17, 2013, the Board notified the Petitioner that he was not

eligible to participate in PERS because he was not a full-time employee and did not meet the

hourly requirement of 1,040 hours per year of service. By letter dated August 8, 2013, the

Petitioner requested an administrative appeal. An administrative hearing was held on

October 15, 2013, and on January 17, 2014, the hearing officer issued a decision which

recommended that the Petitioner’s request to participate in PERS should be denied because

his limited hours of employment did not satisfy the definition of full-time employment, as

contemplated by West Virginia Code § 5-10-2(11) (2013) and West Virginia Code of State

Rules § 162-5-2.3.



              The Board issued a final order on March 5, 2014, adopting the

recommendations of the hearing officer. The Petitioner appealed that decision to the Circuit

Court of Kanawha County, and on July 3, 2014, the circuit court entered an order affirming

the Board’s final order. The Petitioner now appeals to this Court.



                                  II. Standard of Review

              The West Virginia Administrative Procedures Act, specifically West Virginia

Code § 29A-5-4(g) (2012), governs the review of contested administrative decisions and


                                              3

specifically provides:

                     The court may affirm the order or decision of the agency
              or remand the case for further proceedings. It shall reverse,
              vacate or modify the order or decision of the agency if the
              substantial rights of the petitioner or petitioners have been
              prejudiced because the administrative findings, inferences,
              conclusions, decision or order are:

                     (1) In violation of constitutional or statutory
                     provisions; or
                     (2) In excess of statutory authority or jurisdiction
                     of the agency; or
                     (3) Made upon unlawful procedures; or
                     (4) Affected by other error of law; or
                     (5) Clearly wrong in view of the reliable,
                     probative and substantial evidence on the whole
                     record; or
                     (6) Arbitrary or capricious or characterized by
                     abuse of discretion or clearly unwarranted
                     exercise of discretion.

This Court addressed the standard of review that applies to such matters in syllabus point one

of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996):

                     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.

This Court has also held that “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. Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995); see also Crystal R.M. v. Charlie

A.L., 194 W.Va. 538, 459 S.E.2d 415 (1995).

                                              4

              Addressing the deference to be accorded to an administrative agency, this

Court has explained that “[i]n the absence of an error of law, factual findings by an

administrative agency should be given great deference, and should not be disturbed on appeal

unless clearly wrong or ‘arbitrary and capricious.’” Healy v. W. Va. Bd. of Med., 203 W.Va.

52, 55, 506 S.E.2d 89, 92 (1998). Pursuant to the arbitrary and capricious standard, a circuit

court reviewing the factual findings of an administrative agency must “not substitute its

judgment for that of the hearing examiner.” Woo v. Putnam Cty. Bd. of Educ., 202 W.Va.

409, 411, 504 S.E.2d 644, 646 (1998). As this Court summarized in syllabus point two of

Webb v. West Virginia Board of Medicine, 212 W.Va. 149, 569 S.E.2d 225 (2002): “‘The

“clearly wrong” and the “arbitrary and capricious” standards of review are deferential ones

which presume an agency’s actions are valid as long as the decision is supported by

substantial evidence or by a rational basis.’ Syllabus Point 3, In re Queen, 196 W.Va. 442,

473 S.E.2d 483 (1996).” However, this Court has further recognized: “While this Court

agrees with the proposition that the Board’s interpretation is entitled to deference, it is

imperative that a reviewing court also consider the possibility . . . that the Board’s

interpretation is erroneous.” West Virginia Consolidated Public Retirement Board v. Wood,

233 W.Va. 222, 228, 757 S.E.2d 752, 758 (2014). With these standards as guidance, we

proceed to evaluate the arguments of the parties.



                                       III. Discussion


                                              5

              Pursuant to West Virginia Code § 5-10-2(11), an employee entitled to

participate in PERS, “means any person who serves regularly as an officer or employee, full

time, on a salary basis, whose tenure is not restricted as to temporary or provisional

appointment, in the service of . . . any political subdivision. . . .” West Virginia Code §

5-10-17(d) (2013) provides: “If question arises regarding the membership status of any

employee, the Board of Trustees has the final power to decide the question.”



              The Legislature, pursuant to West Virginia Code § 5-10-5 (2013), granted the

Board “authority to make all rules and regulations” necessary to effectuate PERS. Thus,

although a definition of “full time” employment is not provided by statute, the current

version of § 162-5-2.3 of the West Virginia Code of State Rules defines full-time

employment as follows: “Full-time employment. - Employment of an employee by a

participating public employer in a position which normally requires twelve (12) months per

calendar year service and requires at least one thousand forty (1,040) hours per calendar year

service in that position.” Id. (emphasis added).



              Pivotal to the Petitioner’s argument, however, the version of that rule in effect

at the time of his hiring and until May 2005 defined full-time employment as “[e]mployment

of an employee by a participating public employer in a position which normally requires

twelve (12) months per year service and/or requires at least one thousand forty (1,040) hours


                                              6

per year service in that position. . . .” See W. Va. C.S.R. § 162- 5-7 (1982)1 (emphasis added).

The Petitioner asserts that he satisfied the definition of full-time employment when the rule

included the phrase “and/or” because he worked in a position which customarily requires

twelve months per year service and worked hours during every calendar month of the years

in question.



               The Petitioner argues that the 2005 alteration to the full-time employment

definition cannot be retroactively applied to him to his detriment. Specifically, relying upon

this Court’s decision in Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995), he argues that

the Board cannot, by changing the definition of full-time employment, deprive him of his

vested rights to participate in PERS. In Booth, this Court addressed an employee’s

expectation of receiving benefits and held that once an employee had relied on a promise of

certain benefits, the Legislature was prohibited from removing those benefits without

providing something of equal value. Id. at 340, 456 S.E.2d at 184. This Court also

recognized the difficulty employees may encounter in attempting to produce tangible

evidence of reliance to their detriment, and held that “after ten years of state service

detrimental reliance is presumed.” Id. (emphasis added).




       1
        West Virginia Code of State Rules § 162-5-7 was in effect until May 2005. At that
time, the rule defining full-time employment was altered and is now contained in West
Virginia Code of State Rules § 162-5-2.3.

                                               7

              Thus, the Petitioner contends that the Board failed to consider that prior to the

2005 alteration, the definition of full-time employment only required a participating

employee to meet one of two requirements, a job normally requiring twelve months per year

of service and/or at least 1,040 hours per year of service in that position, instead of both. He

emphasizes that “[n]o one disputes that he held a position that normally required twelve

months per year of service.”2



              In response to the Petitioner’s assertions, the Board directs this Court’s

attention to the holding of West Virginia Consolidated Public Retirement Board v. Jones, 233

W.Va. 681, 760 S.E.2d 495 (2014). While the Board finds Jones dispositive of the current

matter, this Court disagrees. The Jones decision, although based upon a seemingly similar

underlying factual pattern, answers an entirely different question. In Jones, the employee

was on-call with the Raleigh County Emergency Service Authority, working approximately

200 hours per year for the Authority but also maintaining a separate law practice. Id. at 682,

760 S.E.2d at 496. After Mr. Jones and his employer had made timely payments into PERS

for almost nine years, the Board notified him that it intended to refund his contributions

based upon the Board’s conclusion that he was ineligible to participate in PERS because he


       2
        The evidence presented to the hearing officer and the circuit court included testimony
from the Petitioner; Brenda Mobley, personnel manager for the WVDA; and Gus R.
Douglass, Commissioner of the WVDA during the relevant time periods. These individuals
identified the Petitioner’s employment as requiring work in each of the twelve months of the
calendar year.

                                               8

was not a full-time employee. The circuit court held that the Board was equitably estopped

from denying Mr. Jones’ participation in PERS due to his reliance on his employer’s

representations regarding his eligibility. This Court reversed, holding that the Board was not

estopped from denying Mr. Jones’ participation in PERS based upon his employer’s

misrepresentations regarding his eligibility. Id. at 687, 760 S.E.2d at 501.



              Because the Jones holding addresses the issue of equitable estoppel, it is

entirely distinct from the particular issue presented in the case sub judice. The only

application of the Jones holding to the present case, as the Petitioner observes, is that it

compels the Petitioner to concede the mootness of his argument concerning reliance on his

employer’s promise of PERS participation. Beyond that, the Jones case is of no consequence

to the matter currently before this Court.



              In support of its position, the Board further references this Court’s decision in

In re Cain, 197 W.Va. 514, 476 S.E.2d 185 (1996). We find that holding equally inapposite.

In Cain, the employee, classified as termporary, relied upon the pre-2005 version of the

regulation defining full-time employment and argued that he qualified as a full-time

employee because he had worked more than 1,040 hours, even though he did not work

twelve months per year. Id. at 517, 476 S.E.2d at 188. This Court held that satisfaction of

the requirement of the legislative rule regarding full-time employment did not qualify him


                                              9

for PERS participation because the statute specifically excludes employees classified as

“temporary” from participation in PERS, regardless of the number of hours worked. Id. at

518, 476 S.E.2d at 189.3 That factual scenario does not exist in the present case. Mr. Cain

served as a temporary employee, but the Petitioner did not. Thus, the Cain decision is not

helpful to our analysis herein.



              The dispositive issue in the present case is whether the Petitioner, as the Board

contends, is statutorily prohibited from participating in PERS based upon the nature of his

public employment. The Petitioner asserts that he satisfied one of the two requirements for

full-time employment in the legislative rule as it existed at the time of his hiring and for more

than ten years subsequent to his hiring date. Specifically, he argues that despite the fact he

did not work 1,040 hours per year, he is entitled to participation in PERS as an employee

working in a position that normally requires twelve months per year service.



              We agree with the Petitioner’s contention that the legislative rule in effect at

the time of his hiring, and for more than ten years after his hiring, entitles him to

consideration under that rule. This conclusion is consistent with this Court’s holding on the

issue of detrimental reliance in Booth, addressed above. Further, we agree with the


       3
         See W.Va. Code § 5-10-2(11) (providing that an employee “means any person who
serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not
restricted as to temporary or provisional appointment. . . .”).

                                               10

Petitioner’s argument that the phrase “and/or” unquestionably signifies that the definitional

requirement for full-time employment can be satisfied in either of the two manners identified

in the rule.4 Thus, under the former version of the rule applicable to the Petitioner, the

Petitioner could qualify as a participant in PERS by either working 1,040 hours per year,

which he concedes he did not, or by working in a position which normally requires twelve

months service per year.



              The Petitioner’s suggested application of the definition enunciated in the rule

strains credulity; he contends that he satisfied the requirements for full-time employment by

working 200 to 300 hours per year, some of which were worked in each calendar month.

Adoption of the Petitioner’s proposed resolution arguably would permit an individual

working one hour per month for twelve months to qualify as a full-time employee for

purposes of the retirement provision. This outcome would be patently contrary to West

Virginia Code § 5-10-2(11), which sets forth the criteria for eligibility to participate in PERS,

namely, employees who provide regular full-time service to this State. “The clear intention

of the Legislature in enacting Article 10, Chapter 5 of the Code was to establish a permanent


       4
        This Court has held that “‘where the disjunctive “or” is used, it ordinarily connotes
an alternative between the two [or more] clauses it connects.’” State v. Taylor, 176 W.Va.
671, 675, 346 S.E.2d 822, 825 (1986) (citations omitted). The Petitioner’s interpretation is
consistent with the standard definition of the term “and/or.” See generally Webster’s Third
New Int’l Dictionary 80 (unabridged ed. 1993) (“and/or” is “used as a function word to
indicate that words are to be taken together or individually <men and/or women means men
and women or men or women>”).

                                               11

retirement system for state employees and the employees of those political subdivisions

which elected to become participating employers.” State ex rel. McDaniel v. Duffield, 149

W. Va. 19, 26, 138 S.E.2d 351, 355 (1964). In the interests of advancing actuarial

soundness, it is necessary that we apply the language of the legislative rule in a manner

which is consistent with the legislative intent of the statute.



              Furthermore, the Petitioner’s suggested application of the legislative rule

disregards the specific definition of the term “month,” as provided in West Virginia Code §

5-10-14(a)(1) (2013). That statute requires service for a minimum of ten days in any calendar

month to receive a month of service credit.5 “‘Statutes which relate to the same subject

matter should be read and applied together so that the Legislature’s intention can be gathered

from the whole of the enactments.’ Syl. Pt. 3, Smith v. State Workmen’s Compensation

Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” Syl. Pt. 4, State ex rel. Fetters v.

Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).



                                       IV. Conclusion

              The record clearly reflects that the Petitioner never worked more than

approximately three hundred hours in any one year. As the Board contends, it is ludicrous



       5
        The record does not reveal any time records indicating that the Petitioner worked any
certain number of days per month.

                                              12

to conclude that employment for 300 hours per year could constitute full-time employment,

even under the definition of “full-time” which included working in a position that normally

requires twelve months service per year. Based upon the foregoing, this Court holds that the

Petitioner is not statutorily eligible to participate in PERS, and he and his former employer

should be refunded the contributions made on his behalf. Thus, this Court affirms the order

of the Circuit Court of Kanawha County; we do so, however, on different grounds than those

identified by the circuit court.6 The lower court addressed the 2005 alteration in the

definition of full-time employment, changing “and/or” to “and.” The circuit court reasoned:

“Regardless of this ambiguous language, the statute has always required full-time

participation in PERS and that W.Va. Code § 5-10-17(d) grants the Board the authority to

decide membership issues.”



              Rather than adopting that rationale, this Court finds that even when the

applicable rule is interpreted as written, imparting full meaning to the term “and/or,” we do

not find that the Petitioner satisfied the eligibility of requirements of either 1,040 hours per

year or working in a position requiring twelve months of service. Thus, the Petitioner is


       6
        This Court has consistently recognized that we may affirm on grounds different than
those relied upon by a trial court. See Schmehl v. Helton, 222 W.Va. 98, 106 n.7, 662 S.E.2d
697, 705, n.7 (2008) ( “[T]his Court may in any event affirm the circuit court on any proper
basis, whether relied upon by the circuit court or not.”); Murphy v. Smallridge, 196 W.Va.
35, 36-37, 468 S.E.2d 167, 168-69 (1996) (“An appellate court is not limited to the legal
grounds relied upon by the circuit court, but it may affirm or reverse a decision on any
independently sufficient ground that has adequate support.”).

                                              13

ineligible for the fundamental reason that even under the former rule, he does not meet either

of the enunciated eligibility standards.7

                                                                                   Affirmed.




       7
       In its brief to this Court, the Board also raises the issue of whether the Petitioner
should be considered an independent contractor rather than an employee. The Petitioner
observed in response that this issue was not raised below and is not factually supported. This
Court declines to address that issue in this appeal, and this matter is resolved favorably
toward the Board on other grounds.

                                             14
