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No. 32508      _        George B. Summers and Ronald Fertile v. The West Virginia Consolidated Public Retirement Board

Starcher, J., concurring:

            I concur with the majority's holding that the legislative rule properly forbids the inclusion of lump-sum benefits in a “last year's salary,” and that this rule is not constitutionally offensive.

            But I have questions about allowing one small group of employees to enjoy a “windfall” _ while others, who retired at the same time, may have missed out on the same benefits.

            If the new regulation really “changed the law,” then perhaps all employees who retired prior to the new regulation are entitled to a recalculation.

            Accordingly, I hesitantly concur.