2013 VT 56


Preston v. Burlington City
Retirement System (2012-208)
 
2013 VT 56
 
[Filed 12-Jul-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 56 

 

No. 2012-208

 

John L. Preston, Jr.


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Burlington City Retirement
  System


January Term, 2013


 


 


 


 


Geoffrey
  W. Crawford, J.


 

John L. Preston, Jr., Pro Se, Greensboro, North Carolina,
Plaintiff-Appellee.
 
Colin K. McNeil of McNeil, Leddy & Sheahan, P.C., Burlington,
for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.   Defendant City of Burlington Retirement
System appeals from a superior court judgment reversing the City’s decision to
terminate the disability retirement of plaintiff, a former City
firefighter.  The City contends: (1) the trial court lacked subject matter
jurisdiction; and (2) its decision to terminate the benefit was reasonable and
proper.  We affirm.    
¶ 2.            
The facts may be summarized as follows.   Plaintiff was
employed by the City as a firefighter from 1992 to 2005.  In February
2007, the City’s Retirement Board, which administers the City’s employee
retirement system, approved plaintiff’s application for disability retirement,
awarding plaintiff a monthly pension of $2964.84 effective December 10,
2006.    
¶ 3.            
Two years later, in February 2009, the Board’s retirement administrator
wrote to plaintiff requesting that he return a questionnaire designed to
evaluate his current disability status.  The letter cited the City’s
retirement ordinance, which provides that the Board may require any employee on
disability retirement who has not attained the normal retirement age for
members of his or her class to provide additional information and “undergo a
medical examination.”  Burlington Code of Ordinances § 24-23(d).[1]  Shortly thereafter, plaintiff
returned the completed questionnaire, indicating that his activities remained
subject to the same physical restrictions that had resulted in his disability
retirement.  He also sent a cover letter explaining that he was currently
training to become an airline pilot, which he characterized as a position posing
“low physical demands required under the medical restrictions that I
have.”  
¶ 4.            
A few weeks later, the retirement administrator sent a second letter to
plaintiff explaining that the Board had reviewed his questionnaire and voted to
require that he submit to a further medical evaluation.  Although the
administrator offered to locate a medical facility near plaintiff’s residence
in Florida, plaintiff indicated that he wished to be examined in Vermont. 
The administrator, in response, wrote to plaintiff in late April 2009
explaining that she had arranged for him to have a “Functional Capacity
Examination” in Colchester, Vermont in late June at the City’s expense. 
                  
¶ 5.            
In late May 2009, plaintiff informed the retirement administrator that
he could not keep the scheduled appointment, and shortly thereafter sent her a
letter asserting that he was absolutely entitled to five years of
disability-retirement benefits under the City ordinance.  The Board
referred the matter to the City Attorney’s office, which notified plaintiff in
July 2009 that the Board had concluded it was unable to assess his continued
eligibility for disability benefits due to his failure to submit to an
evaluation, and accordingly had determined to discontinue his benefits. 
The letter further explained that the Board would “consider reinstatement of
the benefit” once plaintiff had complied with the request to submit to a
functional capacity examination.  
¶ 6.            
Plaintiff wrote to the retirement administrator the following month
asking for reconsideration, stating that he had scheduled an appointment with
his own physician in Colchester in September 2009.  The administrator
again offered to schedule a functional capacity examination with an independent
evaluator to coincide with his physician’s appointment, but no time-slot was
available when she called the facility.  Following the appointment with
his family practice group, plaintiff sent the Board a note from a physician
assistant stating she had evaluated plaintiff’s chronic back pain and found
that his “condition regarding work capabilities ha[d] not significantly changed
nor improved.”  In the meantime, plaintiff had submitted, and the Board
had approved, a request to take a functional capacity examination in Portland,
Oregon.  However, the certified letter from the administrator to plaintiff
outlining the steps necessary to arrange the examination was returned because
plaintiff did not sign it.    
¶ 7.            
Plaintiff contacted the retirement administrator in November 2009,
explaining that he had been “MIA” because of problems with his son, and asked
for guidance on how to proceed.  The administrator again advised plaintiff
to set up an appointment for a functional capacity examination with the
identified provider in Oregon, but he failed to do so.  In February 2010,
plaintiff sent a letter to the administrator explaining that he had recently
completed his pilot training, had been hired by an airline company based in
Texas, and wished to complete the required examination, although he maintained
that he was entitled to continued receipt of benefits.  The Board again
referred the letter to the City Attorney’s office, which notified plaintiff, in
March 2010, that his “cooperation with the Board [was] a condition of continued
eligibility for disability benefits,” and that failure to comply with Board’s
requests risked a decision “permanently revoking any rights you may have to
disability benefits.”   
¶ 8.            
Thereafter, on April 12, 2010, plaintiff participated in a functional
capacity examination at Odessa Physical Therapy in Odessa, Texas. 
According to the evaluation report subsequently prepared by Odessa and
submitted to the Board, plaintiff expressed concern during the examination that
he might injure himself and risk losing his new job if he performed the
“repetitive motion and dynamic lifting portions of the test.”  The Odessa
evaluator contacted the City’s retirement administrator and discussed
plaintiff’s concerns, after which plaintiff declined to complete those
tasks.  In the comments section of the report, the evaluator expressed the
view that plaintiff’s concerns were “valid and reasonable” under the
circumstances.  Based on the balance of the physical examination and
plaintiff’s medical history, the evaluator “could not recommend that
[plaintiff] is physically capable of performing the job duties of a fireman
safely,” noting that he “can not run,” “walks on the slow side of normal,” and
would have “difficulty climbing ladders, crawling, kneeling, squatting,
wielding an axe, and dragging a body.”  The evaluator concluded that
plaintiff’s physical condition would not interfere with the essential functions
of piloting a plane.  
¶ 9.            
After deferring the matter at its regularly scheduled meeting in June
2010, the Board voted at its next meeting in July 2010 to revoke plaintiff’s
disability retirement.  In a letter dated August 6, 2010, the retirement
administrator informed plaintiff of the Board’s action.  The administrator
noted that plaintiff had “submitted to a functional examination [in April of
2010] but did not fully complete the examination citing a fear that you might
re-injure your back despite being employed as a pilot at the time of the
examination.”  The administrator explained that the Board had “determined
that this is another refusal on your part to comply with its requests,” that it
had “now spent over a year” seeking plaintiff’s compliance, that it was unable
to “determine [plaintiff’s] true disability status,” and that as a result of
plaintiff’s “continued refusal to fully cooperate” with the Board’s requests
his disability benefits were “permanently revoked pursuant to [Burlington Code
of Ordinances §] 24-23(d).”     
¶ 10.        
Plaintiff appealed the decision to the superior court under Vermont Rule
of Civil Procedure 75(a), which provides for review of government action not
otherwise expressly appealable by statute under Rule 74, “if such review is
otherwise available by law.”  The City moved for summary judgment,
asserting that the court lacked subject matter jurisdiction, or, in the
alternative that the appeal should be decided on the record, which demonstrated
that its decision to terminate plaintiff’s disability retirement was
reasonable.  See In re Soon Kwon, 2011 VT 26, ¶ 6, 189 Vt. 598, 19
A.3d 139 (mem.) (noting that, in reviewing agency action, court’s task is to
“determine whether there was ‘any reasonable basis for the [agency’s] findings”
(quotation omitted)).  The City’s motion was supported by letters and
emails between plaintiff and the City’s retirement administrator, the
administrator’s affidavits, minutes of the Board’s meetings, the Odessa
evaluation report, the affidavit of the Board chair, and a portion of
plaintiff’s medical records.  Plaintiff, in opposition, submitted an
affidavit and two additional letters from the physical therapy specialist who
conducted the Odessa evaluation.    
¶ 11.        
 The trial court issued a written ruling in March 2012.  The
court rejected the City’s jurisdictional argument, which was predicated on a
provision in the City’s retirement ordinance to the effect that “[t]he
retirement board shall have the final say as to all decisions required
to be made pursuant to the provisions of this section.”   Burlington
Code of Ordinances § 24-23(j) (emphasis added).  The court acknowledged
our holding in Mason v. Thetford School Board that a statute may
preclude judicial review of an administrative decision by providing that the
decision “shall be final.”  142 Vt. 495, 498, 457 A.2d 647, 649
(1983).  The court relied, however, on our subsequent ruling in Campbell
v. Manchester Board of School Directors, which reaffirmed the principle
that “an otherwise final decision may be amenable to review by writ of
certiorari . . . where the decision was made by one acting in a judicial or
quasi-judicial position.”  152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989)
(mem.).  The trial court here concluded that the Board’s decision was quasi-judicial
in nature, subject to review under the traditional writ of certiorari, and
therefore subject to appeal under Rule 75.  See Hunt v. Vill. of
Bristol, 159 Vt. 439, 440-41, 620 A.2d 1266, 1266-67 (1992) (observing that
Rule 75 had replaced traditional extraordinary writs and holding that police
chief’s dismissal was in the nature of an adjudication reviewable under Rule
75).   
¶ 12.        
On the merits, the court found that the record evidence showed that
plaintiff had reasonably cooperated in the physical assessment conducted by
Odessa, and thus provided no support for the City’s decision to revoke his
disability retirement based on a failure to cooperate.  The City’s
subsequent motion to alter or amend the judgment was denied.  This appeal
followed.               
¶ 13.        
As we have explained, “[r]eview of governmental action is governed by
V.R.C.P. 74 and 75.  Rule 74 applies when review is provided by
statute.  When legislation is silent on the mode of review, Rule 75
governs the appellate procedure if review is ‘available by law.’ ” Hunt,
159 Vt. at 440, 620 A.2d at 1266.  We have also recognized that
“available by law” includes review of administrative agency decisions under the
traditional writs for “extraordinary relief” such as certiorari and mandamus.
 Id.; see also Ahern v. Mackey, 2007 VT 27, ¶ 8, 181 Vt.
599, 925 A.2d 1011 (mem.) (“[T]he relief available under Rule 75 represents the
modern equivalent of extraordinary relief by mandamus or certiorari.”
(quotation omitted)); Vt. State Emps. Ass’n v. Vt. Crim. Justice Training
Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997) (“When, as here,
legislation is silent on whether review is available, we have permitted appeal
under Rule 75 so long as review would have been available under any one of the
extraordinary writs, such as mandamus, scire facias, prohibition, quo warranto,
and certiorari.”).  We have emphasized, however, that the standard of
review of governmental action in this context is “necessarily narrow,” In re
Town of Bennington, 161 Vt. 573, 574, 641 A.2d 1331, 1332 (1993) (mem.),
and that we will not substitute our judgment for that of an experienced
administrative agency.  Ahern, 2007 VT 27, ¶ 8. 
   
¶ 14.        
The purpose of certiorari was traditionally to review “judicial or quasi-judicial”
action of a lower court or tribunal, id., a characterization which this
and other courts have uniformly applied to agency rulings—like the one before
us—affecting a public employee’s  disability-retirement benefits. 
See Nash v. Coxon, 155 Vt. 336, 338, 583 A.2d 96, 97 (1990) (noting that
Vermont State Employee Retirement Board operates as “a quasi-judicial board” in
making retirement-benefit decisions); see also Terry v. Bd. of Trs. of City
Pension Fund, 854 So. 2d 273, 274-75 (Fla. Dist. Ct. App. 2003) (holding
that city pension board’s calculation of firefighter’s disability-retirement
benefit “was not legislative or executive, but was a quasi-judicial decision
subject to judicial review” and that the “proper method of review is by certiorari”);
Staads v. Bd. of Trs. of Fireman’s Ret. Pension Fund of Sioux City, 159
N.W.2d 485, 489 (Iowa 1968) (holding that, in denying firefighter’s application
for special form of disability-retirement benefits, city board “was exercising
quasi-judicial functions” subject to certiorari review); Nichols v. Borst,
439 N.W.2d 432, 433 (Minn. Ct. App. 1989) (holding that city board “acted in a
quasi-judicial capacity when reviewing appellant’s claim for reinstatement of
disability benefits” and therefore writ of certiorari was proper means of
reviewing its action in the absence of any specific statutory provision for
judicial review of board proceedings); Kendrick v. City of Chattanooga
Firemen’s & Policemen’s Ins. & Pension Fund Bd., 799 S.W.2d 668,
668 (Tenn. Ct. App. 1990) (holding that action of city’s police and firemen’s
pension board “was subject to review by a common law writ of certiorari since
the agency was acting in a judicial or quasi-judicial capacity”).  
¶ 15.        
Vermont public employees have long enjoyed the right to Rule 75 review
of decisions affecting their retirement benefits.  See, e.g., Vincent
v. Vt. State Ret. Bd., 148 Vt. 531, 533-34, 536 A.2d 925, 927-28 (1987)
(recognizing state employee’s right to judicial review of State Retirement
Board decision requiring social-security offset of disability-retirement
payments); Fitzpatrick v. State Ret. Sys., 136 Vt. 510, 511, 394 A.2d
1138, 1139 (1978) (holding that plaintiff’s appeal route from State Retirement
Board decision was to superior court under Rule 75 rather than directly to
Supreme Court); see also Jacobs v. State Teachers’ Ret. Sys. of Vt., 174
Vt. 404, 415, 816 A.2d 517, 527 (2002) (recognizing that teacher aggrieved by
decision of State Teachers Retirement Board “could have brought an action under
V.R.C.P. 75(a) to review the refusal of the System to provide the relief she
sought”).  We conclude, therefore, that the trial court properly found
jurisdiction under Rule 75 to review the Board’s decision to terminate
plaintiff’s disability-retirement benefits.
¶ 16.        
The City challenges this conclusion, observing that one indicator an act
is judicial in nature is whether the parties “have a right both to notice of
the proceeding and to a hearing,” Verrill v. Dewey, 130 Vt. 627, 630,
299 A.2d 182, 184 (1972) (quotation omitted), and pointing out that the
retirement ordinance at issue here does not afford plaintiff or any other
employee in his position the right to a hearing.  The short and simple
answer to the argument is that plaintiff and others like him are
constitutionally entitled to notice and a hearing when their entitlement to
disability-retirement benefits are at placed at risk, regardless of the City’s
ordinance.  See Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976)
(recognizing that continued receipt of social security disability benefits is a
“property interest” entitled to due process protection, and that “some form of
hearing” affording the “opportunity to be heard at a meaningful time and in a
meaningful manner” is required before an individual may be permanently deprived
of that interest (quotation omitted)); Russell v. Dunston, 896 F.2d 664,
668-69 (2d Cir. 1990) (reaffirming rule that “municipal employee retirement
benefits are constitutionally protected property”).  As the Second Circuit
Court of Appeals has observed, a public employee’s “entitlement to disability
retirement benefits is a constitutionally protected property interest”
requiring minimal due process protections in the form of notice and an
opportunity to respond.  Dunston, 896 F.2d at 669; see also Quinn
v. Grimes, 2004 VT 89, ¶ 8, 177 Vt. 181, 861 A.2d 1108 (holding that public
employee enjoyed property interest in continued employment, entitling him to
notice and hearing).  Thus, under the ordinance at issue here expressly
providing plaintiff with a right to disability-retirement benefits for his
years of service, plaintiff enjoyed a constitutionally protected property
interest requiring, at a minimum, notice and a hearing before that benefit
could be terminated.  We conclude, therefore, that the trial court
was correct in ruling that review in the nature of certiorari was available to
plaintiff under Rule 75.[2] 

¶ 17.        
Even assuming that jurisdiction is generally available under Rule 75,
the City maintains nevertheless that review was specifically barred here under
its ordinance providing that the Retirement Board has the “final say as to all
decisions” concerning disability retirement.  We have acknowledged, to be
sure, that judicial review of government agency actions may be precluded where
a statute or ordinance unequivocally bars review.  See, e.g., Handverger
v. City of Winooski, 2011 VT 130, ¶¶ 4, 13, ­191 Vt. 556, 38 A.3d 1153 (mem.)
(upholding dismissal of  Rule 75 complaint by former city manager under
charter provision specifically providing that  city council’s “action . .
. in suspending or removing the manager shall not be subject to review by any
court or agency”); Mason, 142 Vt. at 498, 457 A.2d at 649 (holding that
Rule 75 review of State Board of Education’s denial of request to pay tuition
for student to attend school outside his district was barred under statute
providing that Board’s “decision shall be final in regard to the institution
the child may attend” (quotation omitted)). 
¶ 18.        
At the same time, we have recognized that our Constitution generally
affords “[e]very person within this state . . . a certain remedy, by having
recourse to the laws,” Vt. Const. ch. I, art. 4, and thus have cautioned that
courts should be “hesitant to interpret arguably ambiguous legislation as
foreclosing judicial review of administrative agency decisions.”  Vincent,
148 Vt. at 534 n.2, 536 A.2d at 927 n.2; see also Bowen v. Mich. Acad. of
Family Physicians, 476 U.S. 667, 670 (1986) (“From the beginning, our cases
[have established] that judicial review of a final agency action will not be
cut off unless there is persuasive reason to believe that such was the purpose
of Congress.” (quotation omitted)).  In deciding whether a statutory
provision conveys an unambiguous intent to bar judicial review, we “look[] to
the applicable law in the substantive area governing the case.”  Mason,
142 Vt. at 497, 457 A.2d at 648.  
¶ 19.        
Viewed in this light, we are not persuaded that the City ordinance at
issue here evinces a clear and unambiguous intent to bar judicial review of the
Board’s decision to terminate plaintiff’s disability retirement.  As Mason
instructs, we must be mindful of the substantive context.  Id. 
In Vermont, public employees like plaintiff generally fall within one of three
broad retirement systems, the Municipal Employees Retirement System (VMERS), 24
V.S.A. §§ 5051-5070, the State Employees Retirement System, 3 V.S.A. §§
455-495, and the Teachers Retirement System, 16 V.S.A. §§ 1931-1952.  Each
system provides for an award of disability-retirement benefits, and each, in
turn, uniformly provides that an employee denied such a benefit is entitled to
a contested hearing conducted by a hearing officer, whose decision “shall
constitute final administrative action.”   24 V.S.A. §
5056a(c), 3 V.S.A. § 461a(c), 16 V.S.A. § 1938a(c) (emphasis added).  The
underscored language is significant, revealing as it does a clear intent that
the agency decision shall be considered “final” solely for purposes of
administrative exhaustion and ripeness for subsequent judicial review, not as a
bar to such review. See Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)
(interpreting provision in Immigration Act that deportation orders of Attorney
General “shall be final” as “referring to finality in administrative procedure
rather than as cutting off the right of judicial review”); Alaka’I Na Keiki,
Inc. v. Matayoshi, 277 P.3d 988, 1005 (Haw. 2012) (holding that statute
making agency decision “final and conclusive” referred only to administrative
finality and was “insufficient to evince legislative intent to preclude
judicial review”); Pendleton Bros. Vending, Inc. v. Ky. Fin. & Admin.
Cabinet, 758 S.W.2d 24, 28 (Ky. 1988) (holding that statute providing that
decisions by secretary of finance shall be “final and conclusive . . . must be
construed to mean ‘final and conclusive’ for administrative purposes, not as a
barrier against judicial review”).  
¶ 20.        
Although the City has opted to fund its own employee retirement system
rather than to participate in VMERS, nothing in the ordinance itself or any
extrinsic evidence cited by the City reveals a specific and unambiguous intent
to deprive its employees of the same right to Rule 75 review of
disability-retirement decisions enjoyed by all other municipal and state
employees in Vermont.  Apart from the City’s assertion, we find nothing to
suggest that this was the purpose of the “final say” proviso as opposed to
simply a statement that the decision shall be the City’s final administrative
word on the subject.  In Handverger, for example, the Winooski city
charter expressly provided that the “action of the council in suspending or
removing the manager shall not be subject to review by any court or
agency.”  2011 VT 130, ¶ 4 (emphasis added) (quotation omitted).  No
such explicit expression of intent to preclude judicial review is evident here.
 It is not unreasonable to expect that, had the City actually intended
to deprive its employees of the same opportunity for judicial review enjoyed by
other public-sector employees in Vermont in identical circumstances, it would
have expressed that intent in clear and unmistakable terms.  Although
“final” may have broader meaning in circumstances lacking the substantive
context presented here, see, e.g., Mason, 142 Vt. at 498, 457 A.2d at
649, the term cannot be viewed in a vacuum.  We thus hold that the trial
court correctly construed the City’s ordinance to mean that the Board’s
decision shall constitute final administrative action, and correctly concluded
that it had jurisdiction under Rule 75 to review the Board’s decision
terminating plaintiff’s disability retirement.     
¶ 21.        
Turning to the merits, we are equally persuaded that the trial court
properly rejected the City’s assertion that the termination decision was
reasonable.  As noted, the City’s decision was narrowly predicated on a
finding that plaintiff’s failure to participate in certain parts of the
functional capacity examination—due to his concern that he might reinjure his
back—represented a continued “refusal . . . to comply with its requests” for
information, and therefore grounds for termination under Burlington Code of
Ordinances § 24-23(d).  As the trial court accurately observed, however,
the only evidence in this regard came from the Odessa evaluator, who concluded
that plaintiff’s concerns about completing the “repetitive motion and dynamic
lifting” portions of the test due to the risk of reinjury were “valid and
reasonable.”  The evaluator noted, moreover, that plaintiff’s decision not
to complete these portions of the test was made only after the City’s
retirement administrator had been contacted and “the concerns . . . discussed.”[3]  The record thus fully supports the
trial court’s conclusion that there was no reasonable basis for the Board’s
decision to terminate plaintiff’s disability retirement predicated on a failure
to cooperate.  Accordingly, we discern no grounds to disturb the
judgment.   
Affirmed.   
       
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
This section provides, in pertinent part, that the retirement board may
“require any disability beneficiary who has not attained the normal retirement
age for members of his class to undergo a medical examination” and further
provides that, should a beneficiary “refuse to submit to such examination or
otherwise refuse to provide requested information,” the benefit may be
“discontinued until [the] withdrawal of such refusal.”  Burlington Code of
Ordinances, § 24-23(d).   


[2] 
Although plaintiff has not raised the issue, we observe that, before any
further proceedings in this matter are held before the Board, the City may wish
to review its procedures to ensure that they meet minimal due process
requirements.    


[3] 
The City complains that the trial court may have improperly relied on two
subsequent letters from the Odessa evaluator, dated August 16, 2010 and October
2, 2011, that were not before the Board when it revoked plaintiff’s disability
retirement.  In them, the evaluator elaborated on his conversation with
the City’s retirement administrator, stating in one that the risks and benefits
of completing the tests were discussed and that “a conclusion was made
that  enough information had been collected” to determine plaintiff’s
ability to perform the functions of a firefighter, and in the other that “[i]t
was decided that it was in no one’s best interest to place the city,
[plaintiff], and Odessa Physical Therapy in any kind of risk, should the
patient be re-injured.”  The City notes that, in her affidavit, the
retirement administrator maintained that she did not concur in the decision to
forego the tests, but rather stated that “the decision was up to
[plaintiff].”  In ruling on the City’s motion to alter or amend the
judgment, the trial court indicated that the letters in question and the City’s
objections thereto did not affect its basic conclusion that plaintiff had
cooperated in the evaluation process.  Thus, the issue is immaterial. 



