{ "id": 8234171, "name": "JERRY A. WIGGS, Plaintiff v. EDGECOMBE COUNTY; and EDGECOMBE COUNTY BOARD OF COMMISSIONERS, in their Official Capacity, Defendants", "name_abbreviation": "Wiggs v. Edgecombe County", "decision_date": "2006-08-01", "docket_number": "No. COA05-1330", "first_page": "47", "last_page": "61", "citations": [ { "type": "official", "cite": "179 N.C. App. 47" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "451 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "339 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558127 ], "year": 1994, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0413-01" ] }, { "cite": "N.C. Gen. 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Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "193 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566925 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0542-01" ] }, { "cite": "329 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "313 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718547 ], "year": 1985, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0460-01" ] }, { "cite": "483 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "345 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53926 ], "year": 1997, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0683-01" ] }, { "cite": "372 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562515 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0362-01" ] }, { "cite": "363 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "94" }, { "page": "94" }, { "page": "94" } ], "opinion_index": 0 }, { "cite": "88 N.C. 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Stat.", "weight": 5, "year": 2005, "pin_cites": [ { "page": "(5a)" }, { "page": "(5)(c) and (d)" }, { "page": "(5)", "parenthetical": "c" }, { "page": "(5a)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 128-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(llb)" }, { "page": "(22)" } ], "opinion_index": 1 }, { "cite": "541 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "351 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155968, 1155715, 1155779, 1155758, 1155798 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/351/0122-02", "/nc/351/0122-05", "/nc/351/0122-01", "/nc/351/0122-04", "/nc/351/0122-03" ] }, { "cite": "497 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "719" } ], "opinion_index": 1 }, { "cite": "129 N.C. 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Gen. Stat. \u00a7 143-166.41", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 143-166.42", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "pin_cites": [ { "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1032, "char_count": 35010, "ocr_confidence": 0.765, "pagerank": { "raw": 5.784959765015926e-08, "percentile": 0.36103436918523046 }, "sha256": "73a69af58ee33e55ed804d2c3d6b184b9f606974ad61d86368d8a6475ba92d09", "simhash": "1:79bbd641c6bd1cd4", "word_count": 5348 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Judge GEER dissents in a separate opinion." ], "parties": [ "JERRY A. WIGGS, Plaintiff v. EDGECOMBE COUNTY; and EDGECOMBE COUNTY BOARD OF COMMISSIONERS, in their Official Capacity, Defendants" ], "opinions": [ { "text": "JACKSON, Judge.\nEdgecombe County and Edgecombe County Board of Commissioners (\u201cdefendants\u201d) appeal an order granting summary judgment in favor of Jerry Wiggs (\u201cplaintiff\u201d) on plaintiff\u2019s claims for declaratory and injunctive relief, denying defendants\u2019 motion for summary judgment, and enjoining defendants from terminating payment of the special separation allowance. The trial court certified the order as a final judgment on 7 September 2005.\nPlaintiff was employed as a law enforcement officer by the County of Edgecombe from 1 May 1976 to 31 March 2004. The County of Edgecombe is a member of the North Carolina Local Government Employees Retirement System (\u201cRetirement System\u201d). On 1 March 2004, plaintiff notified the Retirement System and the Edgecombe County Administrative Office of his intention to retire on 1 April 2004. On 31 March 2004, the Retirement System certified plaintiff as having thirty years of creditable service with the Retirement System. Plaintiff retired from his employment pursuant to North Carolina General Statutes, section 128-21(21) (2005) on 1 April 2004. On 1 April 2004, plaintiff began receiving his retirement benefits and his special separation allowance. Plaintiff continues to receive his special separation allowance since instituting this action.\nIn May 2004, plaintiff sought employment with the Raleigh-Durham Airport Authority, a member of the Retirement System. Upon advice from the Raleigh-Durham Airport Authority, plaintiff contacted Edgecombe County Manager Lorenzo Carmon (\u201cCarmon\u201d) regarding the possible effect of plaintiff\u2019s re-employment with the Raleigh-Durham Airport Authority. When plaintiff contacted Carmon, the County of Edgecombe had no written policy regarding the cessation of the special separation allowance upon re-employment with an employer who is a member of the Retirement System.\nOn 7 June 2004, at defendants\u2019 public meeting, Carmon informed defendants that plaintiff had asked to be employed by another member of the Retirement System, and to continue to receive his special separation allowance. Defendants instructed Carmon to draft a resolution that addressed the cessation of the special separation allowance (the \u201cResolution\u201d). On 12 July 2004, defendants adopted the Resolution. The Resolution stated, in pertinent part, that:\nIn accordance with the action of the North Carolina General Assembly (G.S. 143-166.42), The County of Edgecombe will determine the eligibility of an applicant for the Special Separation Allowance for law enforcement officers and the following terms and conditions for that allowance will apply:\nF. The separation allowance will terminate under the following conditions:\n1. Upon retiree reaching age 62; OR\n2. Upon retiree\u2019s death; OR\n3. Upon retiree\u2019s re-employment in any capacity (fulltime, part time, temporary, permanent, contractual, etc.) by any local government participating in the NC Local Government Employees Retirement System.\nG. If the separation allowance is terminated due to retiree\u2019s reemployment, it will not be re-instated by Edgecombe County, regardless of the length of service with retiree\u2019s new employer. However, the retiree may become entitled to a separation allowance from the new employer by working as a law enforcement officer a sufficient number of years to meet minimum eligibility requirements for the allowance.\nH. The retiree shall notify Edgecombe County immediately if he/she is re-employed as described in Section F.3 and the County will review the re-employment to determine if there is any conflict pursuant to Section F.3. Any attempt to conceal such reemployment for the purpose of avoiding termination of the separation allowance shall constitute fraud.\nOn 4 October 2004, plaintiff filed a complaint against defendants alleging, inter alia, breach of contract, breach of fiduciary duty, bill of attainder, and seeking declaratory relief and a preliminary injunction. Defendants filed a timely answer denying plaintiffs allegations, and asserted the affirmative defenses of failure to mitigate and immunity. Plaintiff and defendants both filed motions for summary judgment.\nAfter a hearing on the motions for summary judgment, on 7 September 2005, the Honorable Quentin T. Sumner entered an order granting plaintiffs motion for summary judgment for plaintiffs claims for declaratory and injunctive relief, denying defendants\u2019 motion for summary judgment, and enjoining defendants from applying or enforcing the Resolution. We agree.\nOn appeal, defendants argue that they were entitled to summary judgment because: (1) the Resolution lawfully precludes plaintiff from receiving the special separation allowance upon his re-employment with another member of the Retirement System; (2) the Resolution was reasonable and necessary to serve an important public purpose; and (3) defendants did not violate the Bill of Attainder Clauses in either the United States or North Carolina Constitution.\nWe first address whether the Resolution lawfully precludes plaintiff from receiving the special separation allowance upon his reemployment with another member of the Retirement System and whether the Resolution was reasonable and necessary to serve an important public purpose. Defendants contend that Campbell v. The City of Laurinburg, 168 N.C. App. 566, 608 S.E.2d 98 (2005), controls in this case. We hold that Campbell is distinguishable.\nIn Campbell, in 1991, the Laurinburg City Council, as the governing body, established that any officer who was receiving the special separation allowance would forfeit the allowance upon employment by another local government or agency thereof. Campbell, 168 N.C. App. at 568, 608 S.E.2d at 98. On 30 August 1999, after thirty years of service, the plaintiff retired from the City of Laurinburg Police Department and began receiving a special separation allowance pursuant to North Carolina General Statutes, section 143-166.42. Id. at 567, 608 S.E.2d at 98. In October 2001, the plaintiff became employed with the Scotland County Sheriff\u2019s Office, and the City ceased payment of the special separation allowance pursuant to their 1999 resolution and North Carolina General Statutes, section 143-166.42. Plaintiff sued, and we held that the City \u201cacted congruent with its designated authority under N.C. Gen. Stat. \u00a7 143-166.42 and consistent with the General Assembly\u2019s intent in determining that for their law enforcement officers, becoming employed by another local government agency . . . would be grounds to cease payment of the separation allowance.\u201d Id. at 572, 608 S.E.2d at 101. Therefore, the City, as the governing body, ceased payments pursuant to their previously established and enacted resolution.\nHere, however, defendants had not previously established and enacted any resolution pursuant to their authority under North Carolina General Statutes, section 143-166.42. In fact, defendants passed the Resolution in July 2004, over three months after plaintiff retired and began receiving his special separation allowance. We hold that North Carolina General Statutes, section 143-166.42 creates the option and affirmative duty for counties to enact a resolution in advance of a law enforcement officer\u2019s re-employment, in order to comply with the provisions of North Carolina General Statutes, section 143-166.41(c). In contrast to the dissenting opinion, we believe that this option and affirmative duty exists because the plain language of North Carolina General Statutes, section 143-166.42 states that \u201c[a]s to the applicability of . . . G.S. 143-166.41 to locally employed officers, the governing body for each unit of local government shall be responsible for making determinations of eligibility for their local officers . . . .\u201d (emphasis added). Thus, the General Assembly gave the governing body for each local government the discretion to act or not to act, creating an option and affirmative duty to enact a resolution. Nothing in the plain language of the statute or legislative history shows the General Assembly did not create the option for local governments to act. Otherwise, the General Assembly would have provided that the provision of North Carolina General Statutes, section 143-166.41 would apply to local governments as a matter of law.\nThe dissenting opinion also misinterprets our reading of North Carolina General Statutes, section 143-166.41(c). The issue at bar is whether plaintiff had a vested contract right, not whether the General Assembly intended North Carolina General Statutes, section 143-166.41(c) to apply to the local governmental officers such that a local officer\u2019s special allowance would terminate automatically upon employment by the State, but would not terminate upon his commencing employment with another local governmental entity who was participating in the Retirement System. Accordingly, the dissenting opinion misstates and fails to accurately summarize our reasoning.\nIn addition, the dissenting opinion reasons that \u201cthe State has nothing to do with the funding of that allowance.\u201d In actuality, the special separation allowance is paid with county, not State, funds. Thus, local and State officers are not treated the same, particularly because the source of funds for the county is tax revenues collected by the State for the county\u2019s benefit. Accordingly, county officers have a contractual right to receive a special separation allowance pursuant to North Carolina General Statutes, section 143-166.42, absent the county\u2019s adoption of a resolution providing otherwise prior to the county officers\u2019 vesting of their contractual right.\nBecause we hold that Campbell is distinguishable, the appropriate issue is whether a change in the law, which affected plaintiff\u2019s right to receive a special separation allowance, violated Article I, section 10 of the Constitution of the United States, which provides in part that \u201c[n]o state shall... pass any... law impairing the obligation of contracts.\u201d U.S. Const, art. I, \u00a7 10.\nWe previously have held that plaintiffs, as members of the North Carolina Local Governmental Employees\u2019 Retirement System, have a contractual right to rely on the terms of the retirement plan if the terms existed at the moment their retirement rights became vested. Simpson v. N.C. Local Gov\u2019t Employees\u2019 Retirement Sys., 88 N.C. App. 218, 224, 363 S.E.2d 90, 94 (1987), aff\u2019d per curiam, 323 N.C. 362, 372 S.E.2d 559 (1988). Our Supreme Court later ruled that \u201cwhen the General Assembly enacted laws which provided for certain benefits to those persons who were to be employed by the state and local governments and who fulfilled certain conditions, this could reasonably be considered by those persons as offers by the state or local government to guarantee the benefits if those persons fulfilled the conditions.\u201d Faulkenbury v. Teachers\u2019 & State Employees\u2019 Retirement Sys., 345 N.C. 683, 691, 483 S.E.2d 422, 427 (1997). Thus, Article 3 of Chapter 128 of the North Carolina General Statutes creates contractual obligations. Simpson, 88 N.C. App. at 225, 363 S.E.2d at 94. Article I, section 10 of the Constitution of the United States provides in part: \u201cNo state shall. . . pass any . . . law impairing the obligation of contracts.\u201d U.S. Const, art. I, \u00a7 10. Similarly, Article I, section 19 of the North Carolina Constitution, the \u201claw of the land clause,\u201d provides that \u201cno person shall be . . . disseized of his freehold, liberties, or privileges, or... deprived of his ... property, but by the law of the land.\u201d N.C. Const, art. I, \u00a7 19. Our courts \u201creserve the right to grant relief against unreasonable and arbitrary state statutes under article I, section 19 of the Constitution of North Carolina in circumstances under which no relief might be granted by the due process clause of the fourteenth amendment^]\u201d Lowe v. Tarble, 313 N.C. 460, 462, 329 S.E.2d 648, 650 (1985). \u201cWhether a state statute violates the law of the land clause \u2018is a question of degree and reasonableness in relation to the public good likely to result from it.\u2019 \u201d Id. (quoting In re Hospital, 282 N.C. 542, 193 S.E.2d 729 (1973)). Thus, under the \u201claw of the land\u201d clause, the test is to weigh the degree and reasonableness of depriving plaintiff a special separation allowance against the public good likely to come from it. In conjunction with the test under the law of the land clause, if a contractual obligation arose under statute, a reviewing court must determine (1) whether the state\u2019s actions impaired an obligation of the state\u2019s contract, and (2) whether the impairment, if any, was reasonable and necessary to serve an important public purpose. Simpson, 88 N.C. App. at 225, 363 S.E.2d at 94.\nHere, plaintiff began his employment with the Edgecombe County\u2019s Sheriff Office as a Deputy Sheriff on 1 May 1976. On 31 March 2004, the Retirement System certified plaintiff as having thirty years of creditable service with the Retirement System effective 31 March 2004. Therefore, on 31 March 2004, plaintiff\u2019s contractual right to receive the special separation allowance became a vested contractual right. As of that time, Edgecombe County had declined to exercise its authority pursuant to North Carolina General Statutes, section 143-166.42 to restrict plaintiff\u2019s ability to collect this special separation allowance should he choose to accept employment with any local government participating in the North Carolina Local Government Employees Retirement System.\nOn 12 July 2004, defendants enacted the Resolution that sought to rescind plaintiff\u2019s contractual rights under the Retirement System to receive a special separation allowance. Therefore, defendants\u2019 Resolution impaired the obligation of the state\u2019s contract with plaintiff under the Retirement System to provide a special separation allowance pursuant to North Carolina General Statutes, section 143-166.42.\nWe now turn to whether the impairment was reasonable and necessary to serve an important public purpose. Defendants argue that the Resolution was necessary to conserve taxpayer money and to prevent \u201cdouble dipping,\u201d meaning that the Resolution prohibits an employee from retiring from the Retirement System, to begin collecting the special separation allowance, and then become re-employed with the Retirement System. However, we note that defendants failed to articulate an important public purpose sufficient to justify impairing plaintiff\u2019s contractual right. Following the rationale in Faulkenbury and Simpson, the argument to improve the Retirement System, conserve taxpayer dollars, or to correct inequities in the Retirement System is insufficient to avoid the constitutional prohibition against impairing contractual rights. Therefore, we conclude that the. Retirement System created a vested contractual right that defendants impaired through a means that was not reasonable and necessary to serve an important public purpose. Accordingly, defendants\u2019 assignment of error is overruled.\nBecause we hold that defendants\u2019 Resolution violated Art. I, section 10 of the Constitution of the United States, and Article I, section 19 of the North Carolina Constitution, we do not address whether defendants violated the Bill of Attainder Clauses in the United States or North Carolina Constitution. Accordingly, we affirm the trial court\u2019s entry of summary judgment.\nAFFIRM.\nJudge TYSON concurs.\nJudge GEER dissents in a separate opinion.\n. N.C. Gen. Stat. \u00a7 143-166.42 (2006) provides that \u201c[o]n or after January 1, 1987, the provisions of G.S. 143-166.41 shall apply to all eligible law-enforcement officers as defined by G.S. 128-21(llb) or G.S. 143-166.50(a)(3) who are employed by local government employers, except as may be provided by this section. As to the applicability of the provisions of G.S. 143-166.41 to locally employed officers, the governing body for each unit of local government shall be responsible for making determinations of eligibility for their local officers retired under the provisions of G.S. 128-27(a) and for making payments to their eligible officers under the same terms and conditions, other than the source of'payment, as apply to each State department, agency, or institution in payments to State officers according to the provisions of G.S. 143-166.41.\u201d\nOn 15 July 1986, the North Carolina General Assembly enacted N.C. Gen. Stat. \u00a7 143-166.42, which states that local law enforcement officers retiring before age sixty-two are to receive the same special separation allowance afforded to State law enforcement officers under N.C. Gen. Stat. \u00a7 143-166.41. Bowers v. City of High Point, 339 N.C. 413, 415, 451 S.E.2d 284, 286 (1994).\nN.C. Gen. Stat. \u00a7 143-166.41 provides, in pertinent part, that: \u201c(a) Notwithstanding any other provision of law, every sworn law-enforcement officer as defined by G.S. 135-l,(llb) or G.S. 143-166.30(a)(4) employed by a State department, agency, or institution who qualifies under this section shall receive, beginning on the last day of the month in which he retires on a basic service retirement under the provisions of G.S. 135-5(a) or G.S. 143-166(y), an annual separation allowance equal to eighty-five hundredths percent (0.85%) of the annual equivalent of the base rate of compensation most recently applicable to him for each year of creditable service. The allowance shall be paid in 12 equal installments on the last day of each month. To qualify for the allowance the officer shall:\n(1) Have (i) completed 30 or more years or creditable service, or (ii) have attained 65 years of age and completed five or more years of creditable service; and\n(2) Not have attained 62 years of age; and\n(3) Have completed at least five years of continuous service as a law enforcement officer as herein defined immediately preceding a service retirement.\n(c) Payment to a retired officer under the provisions of this section shall cease at the first of:\n(1) The death of the officer;\n(2) The last day of the month in which the officer attains 62 years of age; or\n(3) The first day of reemployment by any State department, agency, or institution, except that this subdivision does not apply to an officer returning to State employment in a position exempt from the State Personnel Act in an agency other than the agency from which that officer retired.\u201d\n. The General Assembly, in 1986 Session Laws, Chapter 1019, House Bill 2130, authorized local governments to levy an additional one-half cent sales tax, and provided for local government employers of law enforcement officers to contribute an amount of participating local officers\u2019 monthly compensation to the Supplemental Retirement Income Plan to be credited to the designated individual accounts of participating local officers, and for the special separation allowance for local officers pursuant to North Carolina General Statutes, section 143-166.42.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "GEER, Judge,\ndissenting.\nThe majority opinion overlooks the \u201cwell-established principle that municipalities, as creatures of the State, can exercise only that power which the legislature has conferred upon them.\u201d Bowers v. City of High Point, 339 N.C. 413, 417, 451 S.E.2d 284, 287 (1994). Because of this principle, \u201c[a] contract made by a municipality beyond its power is unenforceable.\u201d Id., 451 S.E.2d at 288. The Supreme- Court in Bowers, while construing precisely the statutes at issue in this case, stressed: \u201cThe issue thus becomes whether the legislature authorized the city to enter contracts for separation allowances\u201d containing the terms that the plaintiffs were suing to enforce. Id. at 418, 451 S.E.2d at 288.\nAccordingly, under Bowers, the majority opinion\u2019s conclusion that plaintiff had a vested contractual right to the special separation allowance skips over a critical fundamental question: whether the General Assembly has authorized a contract in which a local law enforcement officer could continue to receive the allowance although re-employed by another local governmental body. The majority opinion holds, without any analysis of legislative intent, \u201cthat North Carolina General Statutes, section 143-166.42 creates the option and affirmative duty for counties to enact a resolution in advance of a law enforcement officer\u2019s re-employment in order to comply with the provisions of North Carolina General Statutes, section 143-166.41(c).\u201d\nI believe that principles of statutory construction indicate that the General Assembly intended, when enacting N.C. Gen. Stat. \u00a7 143-166.42 (2005), to terminate a local law enforcement officer\u2019s special separation allowance upon that officer\u2019s re-employment by another employer participating in the North Carolina Local Governmental Employees\u2019 Retirement System (\u201cLocal Government Retirement System\u201d). As a result, a county would not be authorized to enter into any contract with an officer in which the special separation allowance would continue despite re-employment. Without such authorization, Mr. Wiggs could have no contractual right, vested or otherwise, to such an allowance upon re-employment. Based on my construction of the statute, I would reverse the trial court\u2019s grant of summary judgment and, therefore, respectfully dissent.\nN.C. Gen. Stat. \u00a7 143-166.41 (2005) provides for a special separation allowance for law enforcement officers employed by \u201ca State department, agency, or institution\u201d upon the officer\u2019s meeting certain requirements. N.C. Gen. Stat. \u00a7 143-166.41(c) sets out events that will result in cessation of the payment of that allowance, including the following:\n(c) Payment to a retired officer under the provisions of this section shall cease at the first of:\n(3) The first day of reemployment by any State department, agency, or institution, except that this subdivision does not apply to an officer returning to State employment in a position exempt from the State Personnel Act in an agency other than the agency from which that officer retired.\nN.C. Gen. Stat. \u00a7 143-166.41(c).\nIn 1986, the General Assembly passed legislation making this special separation allowance available to certain local law enforcement officers. N.C. Gen. Stat. \u00a7 143-166.42. The legislature did not set out all the specifications regarding that allowance, but simply referenced N.C. Gen. Stat. \u00a7 143-166.41:\nOn and after January 1, 1987, the provisions of G.S. 143-166.41 shall apply to all eligible law-enforcement officers as defined by G.S. 128-21(llb) or G.S. 143-166.50(a)(3) who are employed by local government employers, except as may be provided by this section. As to the applicability of the provisions of G.S. 143-166.41 to locally employed officers, the governing body for each unit of local government shall be responsible for making determinations of eligibility for their local officers retired under the provisions of G.S. 128-27(a) and for making payments to their eligible officers under the same terms and conditions, other than the source of payment, as apply to each State department, agency, or institution in payments to State officers according to the provisions of G.S. 143-166.41.\nN.C. Gen. Stat. \u00a7 143-166.42 (emphasis added).\nThe critical task for this Court on this appeal is to determine what the General Assembly intended by the phrase \u201cunder the same terms and conditions ... as apply to each State department, agency, or institution.\u201d Id. The majority opinion construes \u201cthe plain language\u201d of the statute to authorize a broad exercise of discretion because the statute permits a county to make \u201cdeterminations of eligibility for their local officers.\u201d Id. Our Supreme Court has, however, construed this same language as only making local governments \u201cresponsible for certain aspects of administering the separation allowance,\u201d Bowers, 339 N.C. at 419, 451 S.E.2d at 288 (emphasis added). This administrative role does not, according to our Supreme Court, grant local governments discretion to alter the terms and conditions applicable to the payment of the allowance. Id., 451 S.E.2d at 289. The majority opinion has thus, contrary to Bowers and principles of statutory construction, effectively deleted from the statute the mandatory language that local government is responsible \u201cfor making payments to their eligible officers under the same terms and conditions, other than the source of payment, as apply to each State department, agency, or institutions in payments to State officers according to the provisions of G.S. 143-166.41.\u201d N.C. Gen. Stat. \u00a7 143-166.42 (emphasis added).\nThere is no dispute that N.C. Gen. Stat. \u00a7 143-166.41(c)\u2019s provisions regarding cessation of payment of the allowance represent \u201cterms and conditions\u201d of payment. The majority opinion effectively assumes that the General Assembly intended that the literal language of that subsection apply to the local governmental officers such that a local officer\u2019s special allowance would terminate upon employment by the State \u2014 even though the officer had never before worked for the State and was not drawing a State retirement \u2014 but would not terminate upon his commencing employment with another local governmental entity who was participating in the Local Government Retirement System that was paying the officer\u2019s retirement. I cannot agree: such a construction of the statute does not make practical sense and is not consistent with other provisions relating to the Local Government Retirement System.\n\u201cIn interpreting a statute, the Court must first ascertain the legislative intent in enacting the legislation.\u201d O&M Indus. v. Smith Eng\u2019g Co., 360 N.C. 263, 267, 624 S.E.2d 345, 348 (2006). Initially, we turn to the words chosen by the legislature and \u201c[w]hen the words are clear and unambiguous, they are to be given their plain and ordinary meanings.\u201d Id. at 268, 624 S.E.2d at 348. When, however, \u201ca statute is ambiguous, judicial construction must be used to ascertain the legislative will.\u201d Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990). In doing so, an appellate court should \u201cconsider the policy objectives prompting passage of the statute and should avoid a construction which defeats or impairs the purpose of the statute.\u201d O&M Indus., 360 N.C. at 268, 624 S.E.2d at 348. See also Burgess, 326 N.C. at 215, 388 S.E.2d at 140 (\u201c \u2018A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.\u2019 \u201d (quoting State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 295 (1975)). I believe the language of N.C. Gen. Stat. \u00a7 143-166.42 is ambiguous and requires judicial construction.\nIn Bowers, 339 N.C. at 419, 451 S.E.2d at 289, our Supreme Court held that the purpose of N.C. Gen. Stat. \u00a7\u00a7 143-166.41 and 143-166.42 \u201cwas to encourage early retirement.\u201d To construe \u00a7 143-166.42 as permitting a local law enforcement officer to retire under the Local Government Retirement System and draw the special separation allowance, but then return to work for another employer participating in that Retirement System is inconsistent with that purpose. To give effect to the legislature\u2019s purpose, I believe that \u00a7 143-166.42 should be construed as substituting \u201cemployer participating in the North Carolina Local Governmental Employees\u2019 Retirement System\u201d for \u201cState department, agency, or institution\u201d in N.C. Gen. Stat. \u00a7 143-166.41.\nThis construction is consistent with other provisions relating to the Local Government Retirement System. \u201cIt is well established that \u2018[w]hen multiple statutes address a single matter or subject, they must be construed together, in pari materia, to determine the legislature\u2019s intent.\u2019 \u201d Wright v. Blue Ridge Area Auth., 134 N.C. App. 668, 672, 518 S.E.2d 772, 775 (quoting Taylor v. City of Lenoir, 129 N.C. App. 174, 178, 497 S.E.2d 715, 719 (1998)), disc. review denied, 351 N.C. 122, 541 S.E.2d 472 (1999).\nThe local officer special allowance provision, N.C. Gen. Stat. \u00a7 143-166.42, applies \u201cto all eligible law-enforcement officers as defined by G.S. 128-21(1 lb) or G.S. 143-166.50(a)(3) who are employed by local government employers.\u201d N.C. Gen. Stat. \u00a7 128-21(llb) (2005) refers to officers participating in the Local Government Retirement System. N.C. Gen. Stat. \u00a7 128-24(5a) (2005) provides that law enforcement officers participating in the Local Government Retirement System after 1 January 1986 are subject to N.C. Gen. Stat. \u00a7 128-24(5)(c) and (d). N.C. Gen. Stat. \u00a7 128-24(5) (c) and (d) in turn specify:\nc. Should a beneficiary who retired on an early or service retirement allowance be reemployed, or otherwise engaged to perform services, by an employer participating in the Retirement System on a part-time, temporary, interim, or on fee-for-service basis, whether contractual or otherwise, and if such beneficiary earns an amount during the 12-month period immediately following the effective date of retirement or in any calendar year which exceeds fifty percent (50%) of the reported compensation, excluding terminal payments, during the 12 months of service preceding the effective date of retirement, or twenty thousand dollars ($20,000), whichever is greater, as hereinafter indexed, then the retirement allowance shall be suspended as of the first day of the month following the month in which the reemployment earnings exceed the amount above, for the balance of the calendar year. ....\nd. Should a beneficiary who retired on an early or service retirement allowance be restored to service as an employee, then the retirement allowance shall cease as of the first day of the month following the month in which the beneficiary is restored to service and the beneficiary shall become a member of the Retirement System and shall contribute thereafter as allowed by law at the uniform contribution payable by all members.\n(Emphasis added.) \u201cService\u201d is defined as service by a person regularly employed by an employer subject to Article 3 of Chapter 128, which sets out the retirement system for counties, cities, and towns. N.C. Gen. Stat. \u00a7 128-21(22). N.C. Gen. Stat. \u00a7 128-23(g) (2005) further specifies that \u201cany employer . . . who employs law enforcement officers transferred from the Law Enforcement Officers\u2019 Retirement System to this Retirement System on January 1,1986, or who employs law enforcement officers electing to become members of this Retirement System on and after January 1, 1986, shall be employers participating in this Retirement System as this participation pertains to their law enforcement officers.\u201d\nTherefore, a law enforcement officer participating in the Local Government Retirement System who takes an early or service retirement will have his retirement allowance suspended or ceased when he returns to employment with another employer participating in the Retirement System. Under the principle of construing statutes involving the same subject \u2014 here, the retirement of law enforcement officers \u2014 in pari materia, the plain language of N.C. Gen. Stat. \u00a7 128-24 is persuasive evidence that N.C. Gen. Stat. \u00a7 143-166.42 should be construed to cause the special separation allowance to cease upon the officer\u2019s employment with another employer participating in the Local Government Retirement System.\nI can conceive of no reason that retirement benefits should cease upon re-employment with another employer participating in the Local Government Retirement System, but the special, early retirement allowance should not. Further, it makes no sense that the allowance would terminate upon employment with the State when the State has nothing to do with the funding of that allowance. See 1985 N.C. Sess. Laws ch. 1019 (indicating that the special separation allowance was made applicable to local officers because the General Assembly had authorized increases in the sales tax under which local governments would raise over $350,000,000 annually).\nIn sum, I believe that when the General Assembly provided that the special separation allowance should be paid to local officers \u201cunder the same terms and conditions\u201d applicable to State officers, it intended for the allowance to cease upon re-employment with another employer participating in the Local Government Retirement System and not upon employment with a State employer. Accordingly, Edgecombe County\u2019s resolution was immaterial \u2014 it simply reiterated the law already applicable to Mr. Wiggs on the date he retired. I would, therefore, reverse the trial court\u2019s entry of summary judgment in favor of Mr. Wiggs.\n. N.C. Gen. Stat. \u00a7 143-166.50 (2005), also referenced by N.C. Gen. Stat. \u00a7 143-166.42, sets out retirement provisions for local governmental law enforcement officers, but specifies- that on or after 1 January 1986, those officers shall be members of the Local Government Retirement System.\n. N.C. Gen. Stat. \u00a7 128-24(5a) permits a local law enforcement officer to draw retirement while working for another local governmental entity only if he both retired and was reemployed prior to 1 January 1986.", "type": "dissent", "author": "GEER, Judge," } ], "attorneys": [ "Shanahan Law Group, by Rieran J. Shanahan, for plaintiff-appellee.", "Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis, for defendants-appellants." ], "corrections": "", "head_matter": "JERRY A. WIGGS, Plaintiff v. EDGECOMBE COUNTY; and EDGECOMBE COUNTY BOARD OF COMMISSIONERS, in their Official Capacity, Defendants\nNo. COA05-1330\n(Filed 1 August 2006)\nPensions and Retirement; Police Officers\u2014 county law officer \u2014 retirement\u2014special separation allowance \u2014 cessation after employment by another entity \u2014 impairment of contractual obligation\nThe trial court did not err by enjoining defendant county and its board of commissioners from ceasing payment of the special separation allowance to plaintiff county law officer after the officer retired, began receiving his retirement benefits and special separation allowance, and was reemployed by another member of the Local Government Employees Retirement System, and defendant board of commissioners thereafter passed a resolution that special separation allowances for retired local officers would cease upon their reemployment by another local government entity, because (1) defendant county had no written policy regarding cessation of the special separation allowance upon an officer\u2019s reemployment at the time plaintiff retired and began receiving the allowance; (2) a county officer has a contractual right to receive a special separation allowance pursuant to N.C.G.S. \u00a7 143-166.42 absent the county\u2019s adoption of a resolution providing otherwise prior to the vesting of the officer\u2019s contractual right; (3) defendant board\u2019s resolution impaired the obligation of the State\u2019s contract with plaintiff under the Local Government Employees Retirement System to provide a separation allowance pursuant to N.C.G.S. \u00a7 143-166.42; and (4) this impairment was not reasonable and necessary to serve an important public purpose. U.S. Const, art. I, \u00a7 10; N.C. Const, art. I, \u00a7 19.\nJudge Geer dissenting.\nAppeal by defendants from an order entered 7 September 2005 by Judge Quentin T. Sumner in Edgecombe County Superior Court. Heard in the Court of Appeals 12 April 2006.\nShanahan Law Group, by Rieran J. Shanahan, for plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis, for defendants-appellants." }, "file_name": "0047-01", "first_page_order": 79, "last_page_order": 93 }