STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 10 DST 1667

| | |

|JERRI R. DANIELS, | |

| | |

|Petitioner, | |

| |DECISION GRANTING |

|Petitioner, |SUMMARY JUDGMENT FOR |

| |RESPONDENT |

|v. | |

| | |

|NORTH CAROLINA DEPARTMENT OF STATE TREASURER, RETIREMENT SYSTEMS | |

|DIVISION, | |

| | |

|Respondent. | |

| | |

Petitioner commenced this contested case on April 12, 2010 by filing a petition in the Office of Administrative Hearings. On August 04, 2010, Respondent filed a motion, with supporting affidavits and documents, for summary judgment. Petitioner filed a response on August 14, 2010. A motions hearing was conducted before Beecher R. Gray, administrative law judge on August 19, 2010 in the Pitt County Courthouse. The motion for summary judgment, Petitioner’s response, counsels’ arguments, and supporting affidavits and documents from both parties were considered in the light most favorable to the nonmovant. For the sake of clarity for reviewing tribunals, the following are undisputed facts:

1. Petitioner retired effective July 1, 2009, as a member of the Teachers’ and State Employees’ Retirement System, and thereafter began receiving retirement benefits. In August, 2009, Petitioner was hired by Wayne Community College (College) to teach 18.5 hours per week in an adult education program. Petitioner was assured by a representative of the College that this employment would not affect her retirement benefits. At no time prior to September 21, 2009, or prior to Petitioner’s return to employment on August 17, 2009, did Petitioner or anyone on her behalf contact the System to inquire about Petitioner’s returning to work in August 2009 and the possible impact of such a return to work on her retirement benefits. Petitioner began teaching in this program on or about August 17, 2009. When Respondent was made aware of Petitioner’s employment with the Community College, in late September 2009, it notified Petitioner that she had violated the return to work laws for retirees, thereby voiding her retirement, that her retirement benefit would cease and that she would have to repay the Retirement System the $9,926.16 she had received in retirement benefits and reapply for retirement. N.C.G.S. § 135-1(20) provides in part:

‘Retirement’ means the termination of employment and the complete separation from active service with no intent or agreement, express or implied, to return to service. A retirement allowance under the provisions of this Chapter may only be granted upon retirement of a member. In order for a member's retirement to become effective in any month, the member must render no service, including part-time, temporary, substitute, or contractor service, at any time during the six months immediately following the effective date of retirement.

Based upon these undisputed facts, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. By her return to work for Wayne Community College approximately six weeks after her effective date of retirement, Petitioner unknowingly violated the above provision, thereby invalidating her retirement. Inasmuch as Petitioner did not satisfy the statutory definition of “retirement,” and more particularly the requirement that she render no part-time service to an employer participating in the Teachers’ and State Employees’ Retirement System during the initial six months following her retirement, Petitioner must repay all the retirement benefits paid to her by virtue of her July 1, 2009 retirement.

3. Although Petitioner testified through her affidavit that she relied on the assurances of her supervisor at Wayne Community College that her employment with the College would not violate the six-month prohibition on State employment, Petitioner presented no evidence, and the undersigned finds none, that Petitioner’s supervisor was acting as a real or apparent agent of Respondent. There also was no showing that the College supervisor had contacted the System, prior to reemploying Petitioner, and requested the System’s analysis of Petitioner’s reemployment situation.

4. As there are no genuine issues of material fact, Respondent is entitled to judgment as a matter of law.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby GRANTS Summary Judgment for Respondent, and determines that Petitioner’s return to work invalidated her retirement and Respondent properly demanded that Petitioner repay the $9,926.16 in retirement benefits paid to her.

ORDER AND NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B 36(a) and (d). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorneys of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the Board of Trustees of the Teachers’ and State Employees’ Retirement System.

This, the 2nd day of September, 2010.

__________________________________

Beecher R. Gray,

Administrative Law Judge

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