671 S.E.2d 673
SENIOR STATUS JUSTICE MCHUGH, sitting by temporary assignment.
4. In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used. Syllabus point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
5. Within the definition of less than honorable service set forth in W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), the term related to requires the referenced felony conviction to be connected to or associated with the participant's office or employment.
Davis, Justice: (See footnote 1)
The appellant herein and respondent below, Jerry Allen Weaver (hereinafter Mr. Weaver), appeals from an order entered July 23, 2007, by the Circuit Court of Kanawha County. By that order, the circuit court determined that Mr. Weaver, who is a retiree of the West Virginia Public Employees Retirement System (hereinafter PERS), had forfeited his right to receive benefits therefrom because he had rendered less than honorable service in violation of W. Va. Code § 5-10A-1 (1976) (Repl. Vol. 2006) and W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006). Specifically, the circuit court determined that because Mr. Weaver, who, prior to his retirement, had served as the elected Assessor of Lincoln County from 1980 until 2006, had been convicted of the felony of conspiracy to buy votes pursuant to 18 U.S.C. § 371 (1994) (Repl. Vol. 2008), such crime constituted a [c]onviction of a participant of a felony for conduct related to his . . . office . . . which he . . . committed while holding the office in violation of W. Va. Code § 5-10A-2(e)(2). On appeal to this Court, Mr. Weaver contends that the circuit court erred by concluding that his conviction of conspiracy to buy votes was related to his office as Assessor insofar as he claims that he did not benefit directly from such conspiracy. Upon a review of the parties' arguments, the pertinent authorities, and the record designated for appellate review, we affirm the ruling of the circuit court.
[a] fundamental breach of the public trust occurred when an elected official, Respondent [Mr. Weaver], feloniously engaged in a conspiracy to buy votes during elections in which he was a candidate[.]
Respondent's felony conviction is related to his elected position. Respondent became a member of the West Virginia Public Employees Retirement System (PERS) by virtue of holding an elected office and remained a member by repeatedly winning elections. He was convicted of corrupting many of the elections which triggered his eligibility and allowed for his continued participation in the public funded pension system (PERS)[.]
Pursuant to West Virginia Code § 5-10A-1, et seq., the Respondent, Jerry Allen Weaver, has rendered less than honorable service and as a consequence is legally ineligible to receive any benefits as a retirant of the Public Employees Retirement System[.]
(Emphasis in original). Finally, the court ordered that Mr. Weaver's membership in the Public Employees Retirement System be terminated pursuant to West Virginia Code § 5- 10A-1, et seq., and that his past employee contributions together with statutory interest be refunded to him minus any benefits he has previously received. (See footnote 5) From this ruling of the circuit court, Mr. Weaver appeals to this Court.
The criteria for disqualification for pension benefits administered by PERS are set forth in W. Va. Code § 5-10A-1, et seq. Specifically, a retirant's eligibility to receive PERS pension benefits is conditioned upon his/her having rendered honorable service:
The Legislature finds and declares that every retirement plan instituted and created under the laws of this state has from the inception thereof contemplated and each now contemplates that the service rendered by any participating public officer or employee shall at all times be honorable. The Legislature further finds and declares that honorable service is a condition to receiving any pension, annuity, disability payment or any other benefit under a retirement plan.
W. Va. Code § 5-10A-1 (1976) (Repl. Vol. 2006). We previously have examined this statutory language and have held that [a]t common law, as under W. Va. Code, 5-10A-1 to 5-10A-10 , a public officer's or public employee's service must be honorable at all times, and if not, there is a total forfeiture of the public pension. Syl. pt. 1, West Virginia Pub. Employees Ret. Sys. v. Dodd, 183 W. Va. 544, 396 S.E.2d 725 (1990), overruled on other grounds by Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995). In a later opinion, we clarified our earlier holding in Dodd, explaining that
[i]f an employee engages in misconduct during his or
her public service, he or she may forfeit rights to collect a
pension later. Insofar as West Virginia Public Employees
Retirement System v. Dodd, 183 W. Va. 544, 396 S.E.2d 725
(1990) holds that an employee's misconduct results in a
forfeiture of the entire pension, it is still good law because the
requirement of honorable service has been established in
advance and has been made an explicit part of the entire bargain. Syl. pt. 9, in part, Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167 (1995).
The parties to the instant proceeding do not dispute that honorable service is a prerequisite to a retirant's receipt of PERS pension benefits, and the circuit court likewise concluded that Mr. Weaver was required to have rendered honorable service in order to be eligible to receive his PERS retirement. Rather, the parties disagree as to what conduct constitutes less than honorable service such as would result in the loss of eligibility or the forfeiture of Mr. Weaver's status as a participant in PERS.
To determine whether Mr. Weaver's misconduct constitutes less than honorable service, it is necessary to look to the statutory definition of this term. Pursuant to W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), (See footnote 7) '[l]ess than honorable service' means . . . . (2) Conviction of a participant of a felony for conduct related to his or her office or employment which he or she committed while holding the office or during the employment[.] Interpreting this statute, the circuit court ruled that Mr. Weaver's felony conviction for conspiracy to buy votes, which nefarious conduct occurred over a period of fourteen years during which time Mr. Weaver also was holding office as the Assessor of Lincoln County and which conspiracy tainted the very same elections by which Mr. Weaver was elected Assessor and obtained his status as a participant in PERS, satisfied the definition of less than honorable service so as to result in his ineligiblity to receive PERS pension benefits because Mr. Weaver's felonious conduct was related to his office and was committed while he held said office. The Board agrees with the circuit court's interpretation and application of this statutory language, echoing the circuit court's concerns that the felonious corruption of elections by an elected official, which tampering occurred while the official was serving in his/her elected office, is related to the official's office so as to constitute less than honorable service. However, Mr. Weaver disputes this interpretation of the relevant statutory language and instead claims that because there was no direct relationship between his actions and his office, and no evidence that he conspired to buy votes to benefit his own reelections, there is an insufficient nexus upon which to determine that his felony conviction was related to his office.
The statutory definition of less than honorable service requires a participant to (1) have been convicted of a felony; (2) for conduct related to his/her office or employment; and (3) which felonious conduct was committed while the participant was holding said office or during his/her employment. W. Va. Code § 5-10A- 2(e)(2). Although the parties are in general agreement as to the meaning and application of this statutory language, they disagree about the precise meaning to be accorded to the term related to. Because related to is not further defined by the Legislature, we must ascertain its intended meaning.
When determining the meaning of a statute, we resort to the rules of statutory construction. The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature. Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). We next consider the precise words chosen by the Legislature in drafting the statute in question. A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect. Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.). But see, e.g., Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (A statute that is ambiguous must be construed before it can be applied.); Syl. pt. 1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983) (Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent.).
If the Legislature has failed to provide a definition for a particular word or term it has employed in a statute, meaning can be ascribed to such statutory language by referring to the common, ordinary, accepted meaning of the undefined terminology. In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used. Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982). More succinctly, [g]enerally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use. Syl. pt. 4, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353. Accord Syl. pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984) (Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning.).
The term left undefined by the Legislature in W. Va. Code § 5-10A-2(e)(2)'s definition of less than honorable service is related to. The word related is variously defined as associated; connected (See footnote 8) and as [h]aving mutual relation[ (See footnote 9) ] or conne[ct]ion. (See footnote 10) Other jurisdictions that have examined this phrase likewise have construed related to as meaning connected to [or] associated with; (See footnote 11) connected, associated, bearing on, pertaining to, or involving; (See footnote 12) and to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with. (See footnote 13) Cf. CPF Agency Corp. v. R&S Towing Serv., 34 Cal. Rptr. 3d 106, 111, 132 Cal. App. 4th 1014, 1022 (2005) (interpreting related to, as used in Interstate Commerce Act, as requiring more than an indirect, remote, or tenuous effect (internal quotations and citations omitted)).
Thus, it is apparent from the above-quoted authorities that the common, ordinary, and
accepted meaning of the term related to is connected to or associated with.
Accordingly, we hold that, within the definition of less than honorable service set forth
in W. Va. Code § 5-10A-2(e)(2) (2005) (Repl. Vol. 2006), the term related to requires
the referenced felony conviction to be connected to or associated with the participant's
office or employment.
Turning now to the facts before us, we must determine whether Mr. Weaver's felony conviction for conspiracy to buy votes, which conduct occurred while he was holding the office of Assessor of Lincoln County, was related to his office so as to render him ineligible to receive PERS pension benefits. In other words, was Mr. Weaver's felonious conduct connected to or associated with his office? Mr. Weaver was convicted for the felony crime of conspiracy to buy votes. This crime is inextricably connected to and associated with Mr. Weaver's office insofar as his office as Assessor is an elected office and the felony crime for which he was convicted involves tainting the very same electoral process that led not only to his obtaining his office as Assessor but which also rendered him eligible to participate in PERS as an elected official. See W. Va. Code § 5-10-2(11) (2005) (Repl. Vol. 2006) (defining [e]mployee covered by West Virginia Public Employees Retirement Act as including an officer . . . [of] any political subdivision). The vote-buying conspiracy in which Mr. Weaver allegedly participated corrupted eight different elections between 1990 and 2004. In four of those elections, Mr. Weaver was a candidate for the office of Assessor and won reelection. To the extent the activities of the alleged vote-buying conspiracy tainted those elections, in any way, shape, or form, Mr. Weaver's participation therein unquestionably was related to his reelection as Lincoln County Assessor, and, thus, his felonious conviction was related to his office. Accordingly, we affirm the circuit court's ruling finding that Mr. Weaver has forfeited his PERS pension benefits because he rendered less than honorable service as the Assessor of Lincoln County.
Moreover, it goes without saying that, in the more than twenty-five years that Mr. Weaver served as the elected Assessor of Lincoln County, he became intimately familiar with and gained extensive knowledge of the political structure of Lincoln County. Whether Mr. Weaver directly benefitted from his participation in the alleged conspiracy does not matter. The relevant inquiry is whether his conviction thereof related to his public office. With the numerous years of experience Mr. Weaver had as the elected Assessor of Lincoln County, it is unfathomable that he could completely separate himself from and entirely ignore the information as to the inner workings of Lincoln County politics he had gained in this capacity while he pursued his criminal activity. Though Mr. Weaver claims that he acted as a private citizen when he participated in the vote-buying conspiracy, it is an unfortunate coincidence of timing that his criminal activity coincided
with his time in office. Public officers are held to a high standard of public trust, and if they have been found to have violated the public trust, they risk the resultant forfeiture of their publicly-funded pension benefits. See Syl. pt. 9, in part, Booth v. Sims, 193 W. Va. 323, 456 S.E.2d 167; Syl. pt. 1, Dodd, 183 W. Va. 544, 396 S.E.2d 725.
Finally, Mr. Weaver argues that because the federal district court did not find a sufficient connection between his participation in the vote-buying conspiracy and his elected office upon which to enhance his sentence, the circuit court erred by finding that his conduct was related to his office. Although Mr. Weaver makes a valiant effort to save his pension benefits, his argument on this point is flawed because the federal sentencing guidelines that guided the district court's decision require a stronger showing of relationship between the criminal conduct and the elected office than does the statutory language at issue herein. Pursuant to § 3B1.3 of the United States Sentencing Guidelines, a defendant's sentence may be enhanced [i]f the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense. U.S. Sentencing Guidelines Manual § 3B1.3 (2005) (Main Vol. 2007) (emphasis added). Thus, to warrant an increased sentence, the defendant's conduct must have been not only related to, connected to, or associated with his/her public office, but such conduct must also have constituted an abuse thereof. Id. (emphasis added). By contrast, the statute governing a retirant's eligibility to receive PERS pension benefits requires a much less substantial relationship between the retirant's criminal conduct and his/her public office, requiring only that such conduct be related to his/her public office. W. Va. Code § 5-10A-2(e)(2) (emphasis added). In light of the distinctions made by these two different guidelines, our decision herein is not inconsistent with the findings made by the federal district court. As we explained previously, we find that Mr. Weaver's conviction for conspiracy to buy votes is related to his office as Assessor and that the circuit court correctly determined that such felonious conduct, which is related to Mr. Weaver's office and was committed while he held the same, constituted less than honorable service so as to render Mr. Weaver ineligible to receive pension benefits from PERS.