IN THE MATTER OF STRONG

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IN THE MATTER OF STRONG
2005 OK 45
115 P.3d 889
Case Number: 99408
Decided: 06/21/2005

THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN THE MATTER OF KENNETH R. STRONG, Plaintiff/Appellant,
v.
STATE OF OKLAHOMA, ex rel. THE OKLAHOMA POLICE PENSION AND RETIREMENT BOARD, Defendant/Appellee.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

Honorable David M. Harbour, Trial Judge

¶0 The respondent/appellant, Kenneth R. Strong (Strong/retiree), served over sixteen years with the Midwest City Police Department. Upon his separation, Strong opted to leave his retirement in the defendant/respondent's, Oklahoma Police Pension and Retirement Board (Board), retirement program (OPPRS/Retirement Program), electing a vested benefit. Board employees informed Strong, over the phone and in an initial letter, that he would be eligible to begin drawing his retirement in December of 1999. Nevertheless, when Strong contacted the Board in early 1999 to verify the date he would begin receiving benefits, he was told that the original information was inaccurate and that he would not be entitled to benefits until July 23, 2008, when he turned fifty. Following a hearing, the Board determined that Strong was prohibited statutorily from receiving retirement benefits before he reached fifty years of age. The trial judge, Honorable David M. Harbour, affirmed. The Court of Civil Appeals reversed finding that the Board was equitably estopped from denying benefits. The clear language of 11 O.S. Supp. 2004 §50-111.1 allows the disbursal of retirement benefits to a retiree leaving the system and electing a vested benefit when the retiree reaches fifty years of age or the date on which the retiree would have had twenty years of uninterrupted service - whichever is later. Under the facts presented, we hold that, where the retiree signed a form containing the statutory language giving notice of the age and service requirements preceding the right to retirement benefits and he acknowledged an awareness of the time restrictions, the Board is not estopped from denying benefits despite its originally having given the retiree incorrect information concerning the date he was entitled to draw retirement.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED; ORDER OF OKLAHOMA
POLICE AND RETIREMENT BOARD SUSTAINED.

Stephen J. Merrill, Wilson H. Busby, Tulsa, Oklahoma, for Plaintiff/Appellant,
Steven K.Snyder, Assistant Attorney General, Wellon B. Poe, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant/Appellee.

KAUGER, J.:

¶1 We granted certiorari to determine whether, under the facts presented, the defendant/respondent, Oklahoma Police Pension and Retirement Board (Board), is estopped from relying on 11 O.S. Supp. 2004 §50-111.1.

¶2 Here, the respondent/appellant, Kenneth R. Strong (Strong/retiree), admits signing a form containing the statutory language giving notice of the age and service requirements which preceded the right to retirement benefits and of being aware of the time restrictions. Under these facts, we determine that the Board is not estopped from denying benefits despite its originally having given the retiree incorrect information concerning the date he was entitled to draw retirement.

FACTS

¶3 Strong became a member of the Retirement Program through his service as a member of the Midwest City Police Department beginning in December of 1979. In May of 1996, he received an outside job offer. Before accepting the offer, the retiree alleges that he spoke with two Board employees who advised him that, if he elected a vested option, he would be entitled to begin drawing retirement benefits in December, 1999. He also received a letter from the Board's Executive Director stating that benefits would begin at the end of 1999. Nevertheless, when Strong submitted his application for vested retirement benefits, the form he signed contained language specifically stating that he would not be entitled to receive benefit payments until either his fiftieth birthday or the date he would have had twenty years of credited service had his employment continued, whichever occurred later in time. Furthermore, Strong admitted that he was aware of the limiting "whichever is later" restriction.

¶4 In March of 1999, Strong contacted the Board to inquire how returning to police work would affect his retirement benefits. He alleges that it was after this contact that he was first informed that he would not be eligible for benefits until he turned fifty in 2008. The discussion was followed by a Board letter indicating that their communication of 1996 contained an error and advising Strong that the date he would begin receiving benefits would be July 23, 2008, rather than December of 1999.

¶5 At the end of the 1999 calendar year, Strong demanded the payment of retirement benefits. The Retirement Program refused asserting that payment would violate the "whichever is later" rule of 11 O.S. Supp. 2004 §50-111.1.

I.

¶6 THE CLEAR LANGUAGE OF 11 O.S. Supp. 2004 §50-111 ALLOWS
THE PAYMENT OF RETIREMENT BENEFITS ON THE
LATER OF ONE OF TWO OCCURENCES -- THE RETIREE
REACHING THE AGE OF FIFTY OR THE DATE WHEN THE
RETIREE WOULD HAVE HAD TWENTY YEARS OF UNINTERRUPTED
SERVICE. DESPITE THE RETIREMENT BOARD'S
INCORRECT ADVICE THAT BENEFITS WOULD BEGIN
AT AN EARLIER TIME, A RETIREE, AWARE OF THE STATUTORY
LANGUAGE, MAY NOT RELY ON ESTOPPEL AS
AN AVENUE TO RECEIVE BENEFITS NOT AUTHORIZED BY LAW.

¶7 Title 11 O.S. Supp. 2004 §50-111.1 provides in pertinent part:

". . . If the member who has completed ten (10) or more years of credited service elects the vested benefit, the member shall be entitled to a monthly retirement annuity commencing on the date the member reaches fifty (50) years of age or the date the member would have had twenty (20) years of credited service had the member's employment continued uninterrupted, whichever is later. . . ." [Emphasis added.]

The Board argues, and Strong does not dispute, that the explicit language of 11 O.S. Supp. 2004 §50-111.1 undeniably allows only the disbursal of retirement benefits to a retiree leaving the system and electing a vested benefit when the later of one of two things occurs: 1) the retiree reaches fifty years of age; or 2) the date on which the retiree would have had twenty years of uninterrupted service. Although an officer or an agency may have implied powers not granted by statute, implied authority is limited to that necessary for the due and efficient exercise of express powers.

¶8 A cardinal precept of statutory construction is that where a statute's language is plain and unambiguous, and the meaning clear and unmistakable, no justification exists for the use of interpretative devices to fabricate a different meaning.

¶9 Equitable estoppel is generally understood to prevent one party from taking a position which is inconsistent with an earlier action that places the other party at a disadvantage.

¶10 Strong relies on a cause in which we recognized an exception to the general rules regarding estoppel and governmental entities, Burdick v. Independent School District No. 53,

¶11 Strong's position is distinguishable from the one in which the Burdick students found themselves. There, the students had been enjoying the benefits of school attendance for over five years. Here, Strong has received no benefit payment. Although we have sympathy with the economic situation Strong finds himself in, there is no strong public interest that supports the payment of early benefits nor is there any compelling or overriding equitable consideration in favor of the payments. This Court has no way of discerning whether other retirees have been given similar misleading or incorrect information. Instead of supporting the public interest, allowing the early payment of benefits might well cause harm to other retirees by destabilizing the financial status of the Retirement Program.

¶12 In Kinzy v. State ex rel. Oklahoma Firefighters Pension & Retirement System,

¶13 The allowance of payment of benefits would require us act as a super-legislature by ordering the Board to pay benefits clearly neither authorized by law nor anticipated by the Legislature. This we may not do,

CONCLUSION

¶14 The Retirement Board has no authority to pay retirement benefits to a police officer until the officer meets the time restrictions of 11 O.S. Supp. 2004 §50-111.1 To apply estoppel would: 1) require us to ignore the general rule that estoppel will not lie against the government; 2) have the effect of granting to the Retirement Board the power to bind the state merely by representing that they have the authority to do so; 3) require us to dismiss the clear, implicit and unmistakable statutory language; 4) ignore the fact that the retiree had actual knowledge of the date restrictions; and 5) send a signal to potential retirees that allegations of the receipt of incorrect information might result in benefit payments not authorized by statute.

¶15 Under these facts, we determine that the Board is not estopped from denying benefits despite its originally having given the retiree incorrect information concerning the date he was entitled to draw retirement.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED; ORDER OF OKLAHOMA
POLICE AND RETIREMENT BOARD SUSTAINED.

ALL JUSTICES CONCUR.

FOOTNOTES

1Title 11 O.S. Supp. 2004 §50-111.1(A) provides in pertinent part:

". . . If the member who has completed ten (10) or more years of credited service elects the vested benefit, the member shall be entitled to a monthly retirement annuity commencing on the date the member reaches fifty (50) years of age or the date the member would have had twenty (20) years of credited service had the member's employment continued uninterrupted, whichever is later. . . ."

Section 50-111 was first added to the statutory scheme in 1977, two years before Strong was hired. The provision contained no option for a police officer, leaving the service prior to twenty years of service, to opt for a vested benefit. The option to do so first became available under the 1981 version of the statute. Strong's argument that his retirement benefits should be governed by the 1981 statute allowing retirees to collect benefits commencing on the "normal retirement date" or the date the member would have had twenty years of credited service, whichever was later, is unconvincing. Strong retired under a 1993 version of the statute. The quoted language of the 1993 statute and the 2004 statute are identical. Therefore, references are to the current version. Furthermore, Strong admits that he was aware of the "whichever is later" condition when he left the police force in 1996. Admissions in the brief may be regarded as a supplement to the appellate record. King v. King, 2005 OK 4, ¶16, 107 P.3d 570, Keating v. Edmondson, 2001 OK 110, ¶ 9, 37 P.3d 882; World Publishing Co. v. White, 2001 OK 48, ¶ 19, 32 P.3d 835; Oklahoma Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, ¶ 14, 4 P.3d 677, rehearing denied, (2000). On appeal, Strong argued that, even if the Board was barred from paying retirement benefits, its payment of compensatory benefits was not prohibited. Strong did not seek certiorari review of this issue. Nevertheless, the issue may be addressed here. Rule 1.180(b), 12 O.S. 2001, Ch. 15, App. 1; Hough v. Leonard, 1993 OK 112, ¶15, 867 P.2d 438. The argument is nothing more than an attempt to recover relief governed by statute and is unconvincing. This Court has long recognized that where the rights of parties are clearly defined and established by law, equity has no power to change or unsettle such rights. Independent School Dist. No. 89 v. Oklahoma City Federation of Teachers, 1980 OK 89, ¶23, 612 P.2d 719; Mid-Continent Casualty Co. v. First Nat'l Bank & Trust Co., 1975 OK 18, ¶34, 531 P.2d 1370; York v. Trigg, 1922 OK 257, ¶0, 209 P. 417. We accord the administrative agency's decision great weight [City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, ¶10, 886 P.2d 485] and may only overturn its decision if it is clearly erroneous in view of the reliable, material, probative and substantially competent evidence. Title 75 O.S. 2001 §322.

2See discussion, note 1, supra.

3Title 11 O.S. Supp. 2004 §50-111.1, see note 1, supra.

4City of Hugo v. State ex rel. Public Employees Relations Bd., see note 1, at ¶15, supra; Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, 1988 OK 117, ¶12, 764 P.2d 172; Marley v. Cannon, 1980 OK 147, ¶10, 618 P.2d 401.

5Keating v. Edmondson, see note 1 at ¶15, supra; Neer v. State ex rel. Oklahoma Tax Comm'n, 1999 OK 41, ¶16, 982 P.2d 1071; In re Guardianship of Campbell, 1966 OK 99, ¶13, 450 P.2d 203.

6An agency created by statute may not expand its powers on its own authority. Marley v. Cannon, see note 4, supra; Boydston v. State, 1954 OK 327, ¶19, 277 P.2d 38; Adams v. Professional Practices Comm'n, 1974 OK 88, ¶11, 524 P.2d 932.

7Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶20, 936 P.2d 943; Apex Siding & Roofing Co. v. First Fed. Savings & Loan Ass'n of Shawnee, 1956 OK 195, ¶6, 301 P.2d 352.

8State ex rel. Bd. of Regents of University of Oklahoma v. Greer, 204 F. Supp. 2d 1292 (W.D.Okla. 2002); Burdick v.Independent School Dist., see note 13, infra; Board of Educ. v. Rives, 1974 OK 153, ¶8, 531 P.2d 335.

9State ex rel. State Ins. Fund v. JOA, Inc., see note 11 at ¶22, infra; Ashland Oil, Inc. v. Corporation Comm'n, 1979 OK 17, ¶22, 595 P.2d 423; Lingo-Leeper Lumber Co. v. Carter, 1932 OK 735, ¶0, 17 P.2d 365; Airy v. Thompson, 1931 OK 770, ¶10, 6 P.2d 445; Casey, Lombard, Young & Co. v. Hamm, 1916 OK 922, ¶3, 160 P. 878.

10City of Hugo v. State ex rel. Public Employees Relations Bd., see note 1 at ¶15, supra; Marley v. Cannon, see note 4, supra; Adams v. Professional Practices Comm'n, 1974 OK 88, ¶11, 524 P.2d 932.

11State ex rel. State Ins. Fund v. JOA, Inc., 2003 OK 84, ¶23, 78 P.3d 534. See also, Pine v. State ex rel. Oklahoma Memorial Hosp., 1996 OK CIV APP 6, ¶9, 913 P.2d 1375.

12Burdick v.Independent School Dist., see note 13, infra.

13Burdick v.Independent School Dist., 1985 OK 49, ¶7, 702 P.2d 48.

14Ashland Oil, Inc. v. Corporation Comm'n, see note 9, supra; Airy v. Thompson, see note 9, supra; State ex rel. Comm's of Land Office, 1948 OK 240, ¶14, 199 P.2d 215.

15Indiana Nat'l Bank v. State Dept. of Human Services , 1993 OK 101, ¶15, 857 P.2d 53; Ashland Oil, Inc. v. Corporation Comm'n, see note 9, supra. But see, Burdick v.Independent School Dist., note 13, supra.

16See, State ex rel. Comm'rs of Land Office v. Phillips Petroleum Co., 1953 OK 395, ¶0, 258 P.2d 1193.

17In Lockhart v. Teachers' Retirement Sys., 1998 OK CIV APP 42, ¶¶6-7, 958 P.2d 810, the Court of Civil Appeals recognized that the general rules regarding estoppel and governmental entities applied to a situation similar to the one presented here, i.e. where a retiree was given incorrect information by employees of the system.

18See also, Boydston v. State, see note 6, supra. See also, Special Indem. Fund v. Prewitt, 1948 OK 104, ¶10, 205 P.2d 306.

19See also, Parker v. McCauley, 1964 OK 86, ¶9, 393 P.2d 527; Grady v. Marshall, 1955 OK 285, ¶20, 288 P.2d 1101.

20See also, McCormack v. Town of Granite, 1995 OK 105, ¶, 913 P.2d 278.

21City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶18, 967 P.2d 1214; Toxic Waste Impact Group, Inc. v. Leavitt, 1988 OK 20, ¶10, 755 P.2d 626.

22See, Gammill v. Shackelford, 1970 OK 42, ¶9, 480 P.2d 920.

23Our determination is consistent with the majority of jurisdictions determining that erroneous information given to a claimant could not estop the government from denying benefits not otherwise permitted by law. Office of Personnel Mgt. v. Richmond, 496 U.S. 414, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990), rehearing denied, 497 U.S. 1046, 111 S. Ct. 5, 111 L. Ed. 2d 821 (1990); Schism v. United States, 316 F.3d 1259, 1273 (Fed.Cir. 2002), cert. denied, 539 U.S. 910, 123 S. Ct. 2246, 156 L. Ed. 2d 125 (2003); Hein v. Federal Dep. Ins. Corp., 88 F.3d 210, 220 (3rd Cir. 1996), cert. denied, 519 U.S. 1056, 117 S. Ct. 683, 136 L. Ed. 2d 608 (1997); Leon v. Murphy, 988 F.2d 303, 309 (2nd Cir. 1993); Russo v. Health, Welfare & Pension Fund., 984 F.2d 762, 765 (7th Cir. 1993); Jones v. Department of Health & Human Services, 843 F.2d 851-52 (5th Cir. 1988); Hanson v. Office of Personnel Mgt., 833 F.2d 1568 (Fed. Cir. 1987); Rainaldi v. Public Employees Retirement Bd., 115 N.M. 650, 857 P.2d 761, 768 (1993); Miller v. State Employees' Retirement Bd., 156 Pa.Cmwlth. 83, 626 A.2d 679, 682 (1993), reconsideration denied, (1993); Withers v. Register, 246 Ga. 158, 269 S.E.2d 431-32 (1980); State v. McCarty, 76 Idaho 153, 279 P.2d 879-80 (1955); Board of Control of the Employees' Retirement Sys. of Alabama v. Hadden, 854 So. 2d 1165, 1169 (Ala.App. 2002); City of Oakland v. Public Employees Retirement Sys., 95 Cal. App. 4th 29, 115 Cal. Rptr. 2d 151, 162 (2002), review denied, (2002); Bracero v. McCall, 279 A.D.2d 755, 719 N.Y.S.2d 338 (2001); Fraternal Order of Police v. Board of Trustees of the Police & Firemen's Retirement Sys., 340 N.J. Super. 473, 774 A.2d 680, 688-89 (2001); Wallace v. Board of Trustees, 145 N.C.App. 264, 550 S.E.2d 552, 560 (2001), review denied, 354 N.C. 580, 559 S.E.2d 553 (2001); State ex rel. Shumway v. State Teachers Retirement Fund, 114 Ohio App.3d 280, 683 N.E.2d 70, 76 (1996); Grabicki v. Department of Retirement Sys., 81 Wash. App. 745, 916 P.2d 452, 458 (1996), review denied, 130 Wash..2d 1010, 928 P.2d 412 (1996); Clarkson v. Judges' Retirement Sys., 173 Mich.App. 1, 433 N.W.2d 368, 371 (1989); Chambers v. Parochial Employees' Retirement Sys. of Louisiana, 398 So. 2d 102, 105 (La.App. 1981), writ denied, 400 So. 2d 1382 (La. 1987); O'Neill v. State Dept. of Treasury, 178 N.J.Super. 211, 428 A.2d 562-63 (1981); Bryson v. Public Employees Retirement Bd., 45 Or.App 27, 607 P.2d 768, 769-70 (1980); Kellams v. Public School Employees Retirement Bd., 38 Pa. Cmwlth. 101, 391 A.2d 1139 (Fla.App. 1978), aff'd, 468 Pa. 95, 403 A.2d 1315 (1979); Department of Admin. Div. of Retirement v. Flowers, 356 So. 2d 14 (1978), cert. denied, 359 So. 2d 1214 (Fla. 1978). The Court of Civil Appeals aligned itself with the majority in Lockhart v. Teachers' Retirement Sys. of Oklahoma, see note 17, supra. The appellate court recognized the general rule that estoppel will not lie against the government in Tice v. Pennington, 2001 OK CIV APP 95, ¶16, 30 P.3d 1164. Nevertheless, it allowed the doctrine's use where to fail to do so would injure the public interest in proficient medical care absent prevarication, concealment, and/or misrepresentation.