Hay v. City of Highland Park

M. Warshawsky, J. Defendants appeal as of right from a February 8, 1983, judgment entered in favor of plaintiffs following a nonjury trial. The primary question in this appeal is whether certain fringe benefits should be included in the base for computing pension amounts payable to plaintiff-retirees. Plaintiffs are former employees of the Highland Park police and fire departments who retired after 1968. They are members of a retirement system established in Chapter 19 of the Highland Park City Charter and are entitled to receive pension benefits thereunder. Defendant board of trustees is charged with administering the retirement system. *628 The relevant sections of Chapter 19 are set forth below: "19-2(12) 'Compensation’ means the salary paid a member by the city for service rendered by him as a policeman or ñreman; provided, that the term 'compensation’ shall not include any portion of salary in excess of the salary for the higher of (1) the third rank above the rank of patrolman, or (2) the third rank above the rank of pipeman, nor shall it include remuneration for overtime, clothing and equipment, and travel expense. If there be more than one classification within a rank, the highest classification within the rank shall be used for the purpose of the definition of 'compensation’. "19-2(13) 'Final average salary’ means the average of the compensations, as ñxed in the city budget for the ñscal year in which employment by the city as a policeman or ñreman last terminates, of the ranks held by the member during the 5 years of credited service immediately preceding his retirement; provided, that a member’s 'final average salary’ shall not exceed the compensation for the third rank above the rank of patrolman or the third rank above the rank of pipe-man, whichever is higher, as fixed in the city budget for the fiscal year in which the member’s employment by the city as a policeman or fireman last terminates. If there be more than one classification within the rank, the highest classification within the rank shall be used for the purpose of this definition. If a member has less than 5 years of credited service^] the period used in determining his final average salary shall be his total period of credited service. "19-18 Age and service pension. — Upon his retirement, as provided in this chapter, a member shall receive a straight life pension equal to 2 per cent of his ñnal average salary multiplied by the number of years, and fraction of a year, of his credited service not to exceed 25 years. His said pension shall be subject to sections 19-30 and 19-31. *629 "19-30 Pension escalation. — If the compensation for the rank held by a member at the time his employment by the city as a policeman or fireman last terminates is subsequently increased or decreased[,] any pensions payable on account of his employment by the city shall be correspondingly increased or decreased.” (Emphasis supplied.) In June, 1977, plaintiffs filed a complaint for writ of mandamus and other appropriate relief, alleging that the formula for computing pension amounts should include not only regular salary but also certain fringe benefits. Defendants filed a counterclaim which will be discussed later in this opinion. Following a nonjury trial, the court entered a judgment on February 8, 1983, ordering that certain fringe benefits be included in the computation of average final compensation in determining the amounts of plaintiffs’ pensions. The fringe benefit items in dispute are: (1) shift differential pay, (2) longevity pay, (3) holiday pay, (4) call-back pay, (5) premiums paid for health and hospitalization insurance, (6) premiums paid for eye care program, (7) premiums paid for dental program, and (8) terminal leave pay. 1 Defendants appeal as of right. I Did the Trial Court Err in Holding That the Listed Fringe Benefits Must Be Included in the Base for Calculating Plaintiffs’ Pensions? Defendants first focus on the phrase " 'Final average salary’ means the average of the compen *630 sations, as ñxed in the city budget as found in § 19-2(13) of the city charter. Defendants contend that only the regular salaries are fixed in the pay plan of the city budget, and that fringe benefits, on the other hand, are not fixed but are considered expenses which can be paid only with an express appropriation in the budget. We reject defendants’ attempt to distinguish between fixed and non-fixed items in the budget. The finance director testified that only regular salaries are fixed in the pay plan (a predetermined schedule of pay by rank) in the budget. However, he stated that no item can be paid unless there is a specific appropriation for it in the budget. There was no testimony that the term "fixed in the city budget” in § 19-2(13) is a term of art or carries any special meaning. We find that the proffered distinction between fixed and non-fixed items is one of semantics rather than substance. Defendants next assert that fringe benefits should not be included in the computation because the members’ contributions to the system under § 19-34(b) of the charter did not take the value of the fringe benefits into account. While this factor is not dispositive, see Banish v Hamtramck, 9 Mich App 381; 157 NW2d 445 (1968), lv den 381 Mich 779 (1968), it does logically weigh in defendants’ favor. It appears that defendants have for many years acted under the reasonable belief that fringe benefits were not to be included in the computation of either pension payments or employee contributions to the system. Plaintiffs’ longtime acquiescence in this state of affairs weakens their present claim. Defendants further contend that their reasonable and consistent construction of the retirement system provisions over the years should be given *631 great weight by this Court. This general principle was recognized by the Court in Lansing Fire Fighters Ass’n, Local 421 v Bd. of Trustees of City of Lansing Policemen’s & Firemen’s Retirement System, 90 Mich App 441, 445; 282 NW2d 346 (1979), lv den 407 Mich 957 (1980): "Additionally we point out that the board, being in charge of administration of the pension program, has reasonably interpreted the charter in light of objects and purposes sought to be accomplished. As such we find no cogent reasons for overruling the board’s construction of the charter as it relates to the exclusion of accrued vacation time from retirement benefit computation. See Michigan State Police Command Officers’ Ass’n, Inc v Dep’t of Public Safety, 80 Mich App 278; 263 NW2d 47 (1977).” Therefore, the burden is on plaintiffs to establish cogent grounds for overruling the board’s decision. Plaintiffs point to § 19-2(12) of the charter which expressly provides that compensation shall not include "remuneration for overtime, clothing and equipment, and travel expense”. Plaintiffs reasonably assert that express exclusion of some fringe benefits implies inclusion of those not mentioned. See, e.g., Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). In our opinion, however, this general rule should not determine the outcome of this case. One reason for not applying this general rule is that some of the fringe benefits listed in the judgment are not of the same kind as those expressly excluded in § 19-2(12). For example, the exclusion for clothing and equipment and travel expenses merely refers to reimbursement of out-of-pocket expenses incurred by the employees. Such reimbursement is not a fringe benefit in the true sense and is quite different from many of the items *632 listed in the judgment. Furthermore, the term "salary” is ambiguous as used in this context and is not defined in the charter. It is unwise to assume that the drafters intended to include all other fringe benefits merely because they chose to exclude three specific types of employee remuneration from the pension calculation. Rather, it appears just as reasonable that had the drafters intended "salary” to include all fringe benefits, they would have expressly so stated. The trial court found Banish v City of Hamtramck, supra, controlling. The plaintiffs in that case were retired firemen and policemen entitled to pensions at the rate of one-half the pay of the rank in which they served at the time of retirement. The charter provided that in the event of any change after retirement "in such rate of pay” the pension thereafter would be "at the rate of 1/2 the pay for said rank so changed”. Banish, supra, 9 Mich App 385. For approximately 20 years, the retirees received their 50% share of adjustments whenever pay changes were approved for active employees. In the fiscal year 1959-1960, the common council adopted a proviso increasing the pay of its Class B employees but providing that retirees would not receive one-half of the increment. The proviso stated: " 'that the basic pay of the Class B employees for all intents and purposes shall be the same as was prevailing in the 1958-1959 fiscal year and that any amounts paid over and above such basic pay shall be construed as payments only while in active service for the city of Hamtramck and not constituting part of any salary upon which pension payments are to be computed and paid in the future. ’ ” 9 Mich App 385-386. (Emphasis in Banish.) *633 The opinion refers to the increment over basic pay paid only to those in active service as "in service pay”. The plaintiff retirees sought a writ of mandamus requiring payment of increased pension benefits. The defendants argued that, under the charter provision, plaintiffs were entitled to one-half of regular salary and not any other pay. The testimony at trial indicated that the proviso was a deliberate austerity measure by the common council intended to reduce pension outlays. The Court of Appeals held: "The distinction sought to be created between 'regular salary’ and 'any other pay’ is clearly foreclosed by the charter language, which speaks simply in terms of 'pay.’ A fair reading of the charter language requires that the term 'pay,’ as used in the clause T/2 the pay for said rank so changed’, be interpreted to mean the regular compensation currently paid to those of the rank held by the retiree at the time of his retirement. The crucial question, then, is what is regular compensation? We have no hesitancy in holding, on the facts of this case, that in service pay and hazard risk pay are regular compensation. Those terms were devised in an attempt to take two bites out of the cherry with the deliberate purpose, and none other, of depriving retirees of the full pension rights which the charter mandates.” "The charter provision requiring escalation or reduction of retirement pay expresses a purpose that retirement benefits will, in fact, escalate and reduce as the pay of the rank in which the retiree was serving at the time of retirement changes. The defendants’ argument would permit the city to keep the retirees’ pay constant —or, indeed, to effect only reductions and no increases —by simply adopting the correct nomenclature and dividing the pay of active service employees into categories plausibly packaged and labeled. We look beyond form to substance.” 9 Mich App 388-389. The Court further found that under the facts there *634 involved, holiday pay and longevity pay were part of regular salary and hence, "pay”. We find that Banish should be distinguished from the present case. In contrast to Banish, there is no indication that defendants in the instant case deliberately sought to prevent retired members from sharing in pay increases awarded to active service employees. Rather, it appears that defendants have reasonably and consistently interpreted the term "final average salary” as not including fringe benefits. Furthermore, Banish simply held that the term "pay” in the charter included not only regular salary but other types of pay as well. It does not necessarily follow that the clause "salary paid a member” in § 19-2(12) was intended to include all types of fringe benefits. Plaintiffs cite several decisions from other states in support of their contention that fringe benefits should be included. 2 However, a fair number of other courts have held in varying circumstances that pensions based on "salary” do not include fringe benefits. See, e.g., State ex rel Henderson v Schuele, 25 Ohio St 2d 179; 267 NE2d 590 (1971); City of Manitowoc v Police Pension Bd for City of Manitowoc, 56 Wis 2d 602; 203 NW2d 74 (1973); Hilligoss v LaDow, 174 Ind App 520; 368 NE2d 1365 (1977); Jahn v City of Woodstock, 99 Ill App 3d 206; 425 NE2d 490 (1981). An Illinois appellate court in Jahn v City of Woodstock, supra, interpreted a provision granting a disability pension of 50% of the "salary” attached to the member’s rank on the date of retirement. The court found some guidance in a defini *635 tion of the word "salary” in another provision of the pension code. The court also stated: “We note that the word 'salary’ has been defined in other contexts to mean a 'fixed annual or periodical payment’ [Commonwealth Life & Accident Ins Co v Bd of Review, 414 Ill 475, 485; 111 NE2d 345 (1953)]. The word is most often used to mean a fixed amount rather than a fringe benefit such as insurance premiums would be considered. "While no case in Illinois has decided this point, we are assisted by a number of cases from foreign jurisdictions which have addressed the specific issue raised by the parties before us. "In Hilligoss v LaDow, 368 NE2d 1365 (Ind App, 1977), an Indiana statute with the same language as +hat in § 3-144.2 was examined to determine whether employer insurance programs and clothing allowance payments form a part of the 'salary’ of policemen or 'monthly wage’ of firemen for computing pension benefits. The court held that such benefits were not a part of a 'salary’ or 'monthly wage’ under the applicable pension provisions. The court found that the legislature intended a restricted meaning because it had not used more embracing terminology than it did. "A similar result was reached by the Supreme Court of Wisconsin in State ex rel City of Manitowoc v Police Pension Bd, 56 Wis 2d 602; 203 NW2d 74 (1973). In this case the State appealed from a pension board determination that a retired police officer was entitled to a pension that included health and life insurance contributions by the employer. The statute provided for a pension equal to one half of the police officer’s monthly compensation, which the court interpreted to exclude health and life insurance coverage. The court noted that the legislature could provide otherwise if they deemed it the better policy. "A similar result was reached in State ex rel Henderson v Schuele, 25 Ohio St 2d 179; 267 NE2d 590 (1971), where the statutory wording provided for 'salary for the rank held’ was deemed by the court to not include *636 employer contributions of insurance premiums in the computation of police and fire pension benefits. "We deem the reasoning of our sister States to be most persuasive.” 99 Ill App 3d 209-210. Based on the arguments and authority discussed above, we conclude that final average salary does not include holiday pay, call-back pay, terminal leave pay, and payment of hospitalization, eye care, and dental insurance. We further find that shift differential pay and longevity pay are to be included in computing final average salary. According to the testimony, shift differential refers to a small premium paid to employees who work the second or third shifts. Longevity refers to. increased amounts paid to employees based on years of service, regardless of rank. Unlike the other types of fringe benefits, both of these items result in enhancement of the regular periodic salaries paid to employees based on their individual circumstances. We conclude that final average salary does include shift differential pay and longevity pay. II Was Judgment Properly Entered Against Defendant City of Highland Park and the City’s Mayor, Finance Director, and Treasurer? This Court agrees that plaintiffs have no cause of action against the individual defendants, i.e., the mayor, finance director, and treasurer. Defendants correctly point out that no proofs were adduced against these individuals. However, we find that the City of Highland Park, being ultimately responsible for payment of the pension benefits under the retirement system established *637 in Chapter 19 of the city charter, is a proper defendant. III In Recalculating Pension Amounts, Should the Items of Shift Differential Pay and Longevity Pay Be Taken Into Account as of the Time Each Benefit Became Available to Active Members, and Should Interest Be Awarded? The pensions should be recalculated taking into acount the fringe benefit items of shift differential pay and longevity pay from the time each of those items became available to active members. The amounts due to plaintiffs should be reduced by the amounts they would have been required to contribute to the retirement system taking into account longevity pay and shift differential pay. Judgment interest under MCL 600.6013; MSA 27A.6013 should be awarded on the net increase in pension amounts due to plaintiffs. IV Are the 39 Plaintiffs in This Case Who Erroneously Received Monies as the Result of a Consent Judgment Entered in Prior Pension Litigation Involving Pre-1969 Retirees Foreclosed From Obtaining Judgment in the Present Case? A class action suit was commenced in 1971 seeking increased pension benefits for pre-1969 retirees. That suit concerned different charter provisions dealing only with pre-1969 retirees. A consent judgment was entered in that case in 1972. It appears that a supplemental judgment entered July 9, 1973, erroneously included 39 post-1968 *638 retirees who are also plaintiffs in the present action. It is undisputed that a payment was made to these 39 members in 1973 pursuant to the supplemental judgment. The 1973 payment is the only payment in issue. Defendants’ counterclaim sought return of the monies erroneously paid. Defendants contend that a judgment of no cause of action should be entered against these 39 members because they failed to return the excess payment in 1973. We disagree, and find that defendants are entitled only to a set-off of the pertinent amount against the recoveries of the 39 plaintiffs. The trial court’s February 8, 1983, judgment is reversed and the case is remanded for entry of a judgment awarding pension benefits and interest consistent with this opinion. Reversed and remanded. Footnotes [1] The judgment included three additional items, namely, sick leave, funeral leave, and personal leave. However, inclusion of these three items is not contested since the city’s finance director testified without contradiction that these items were taken into account in computing the pensions. [2] E.g., State ex rel Parsons v Ferguson, 46 Ohio St 2d 389; 348 NE2d 692 (1976); Newhouse v Bd of Pensions & Retirement, 33 Pa Commw Ct 81; 380 A2d 1315 (1977); Hebbler v New Orleans Fire Dep’t, 299 So 2d 825 (La App, 1974).