Wilson schools pension-spiking ruling could impact other cases | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Within three days of this week's state Appeals Court ruling against the Wilson County school board in a pension-spiking case, state lawyers have highlighted the ruling in two other outstanding cases.

    In documents known as "memorandums of additional authority," lawyers from the state Department of Justice have cited the Wilson County ruling to bolster their cases in pension-spiking disputes with school boards in Harnett and Union counties.

    The Justice Department lawyers represent the Retirement Systems Division in the Department of State Treasurer Dale Folwell.

    The Wilson school board will have to contribute another $400,000 toward a former assistant superintendent's retirement, based on Tuesday's state Court of Appeals opinion. It's the latest legal battle over North Carolina's 2014 pension-spiking law.

    The unanimous three-judge Appeals Court decision reversed a trial judge's ruling in favor of Wilson schools. The Appeals Court restored an administrative law judge's earlier decision in favor of the Retirement Systems Division.


    "I applaud the Court of Appeals opinion that unanimously overturned a lower court ruling," Folwell said in an emailed statement. "The law was implemented by the previous treasurer. It is not our job to tell school boards or others what to pay administrators. It is our job to protect and defend others in the plan who are asked to pay for it."

    The Wilson County Board of Education had challenged the pension-spiking law as unconstitutional. "[T]he Act does not violate Article I, Section 10, of the United States Constitution; does not violate Article IX, Section 7(a), of the North Carolina Constitution; and is not retroactively applied to Petitioner," wrote Appeals Court Judge Allegra Collins.

    The Wilson school board was the petitioner in the case.

    The dispute stemmed from Assistant Superintendent Susan Bullock's retirement in 2018. Because her final annual compensation exceeded $100,000, retirement system officials applied the state's anti-pension-spiking law, NC Gen. Stat. 135-5(a3).

    A calculation required by the law found that Wilson County schools owed $401,763.96 to cover costs of Bullock's retirement benefits. The school board appealed the ruling. An administrative law judge ruled in favor of the retirement system in September 2021, but the school board appealed to Superior Court.

    "Petitioner alleged that the ALJ's final decision was erroneous because the [pension-spiking] Act is unconstitutional and impermissibly retroactive," Collins wrote. A trial judge ruled in favor of the school board in June 2022.

    Appellate judges rejected the school system's argument that the pension-spiking law violated the US Constitution's prohibition on state laws "impairing the Obligation of Contracts."


    "If the employee's salary increase took effect after the Act was enacted on 30 July 2014 and resulted in the contribution-based benefit cap factor analysis concluding that an additional contribution was required, then the Act did not impair the employment contract," Collins wrote. "Accordingly, Petitioner has failed to establish that the Act substantially impaired its employment contract with the employee. As such, we need not analyze whether the impairment was reasonable and necessary to serve an important public purpose."

    Collins and her colleagues also rejected the notion that the Wilson County school board had an implied contract with the retirement system. "Petitioner cites no authority to support its proposition that such an implied contract existed, or that it has a vested right in keeping constant its amount of contribution to the TSERS pension fund."

    TSERS is the Teachers' and State Employees' Retirement System.

    "There is no set rate that an employer must contribute, but rather it fluctuates to remedy gaps in the pension fund," Collins wrote. "Petitioner has therefore failed to show that the General Assembly manifested a clear intention to be contractually bound to keep constant the amount an employer is required to contribute to the pension fund. Accordingly, Petitioner has failed to show that a contractual obligation was present. As such, we need not analyze whether the Act impaired a contract or whether the impairment was reasonable and necessary to serve an important public purpose."

    The Appeals Court rejected the school board's argument that the additional retirement contribution would hurt its ability to provide a "sound basic education" to students. That would amount to a violation of the NC Constitution.

    "Petitioner has failed to present ... any facts in the form of affidavits, testimony, or otherwise that the payment at issue in this case would undermine its ability to provide a sound basic education to Wilson County children," Collins wrote. "Furthermore, Petitioner has failed to show that paying its employees the deferred compensation to which they are entitled is not a use that maintains free public schools."

    Nor did the retirement system apply the law retroactively, according to the Appeals Court. "The plain language of the Act indicates that it applies to any retirement allowance for a member who retires on or after 1 January 2015. Because the employee in this case retired on 1 January 2018, three years after Act took effect, the statute was not retroactively applied to Petitioner," Collins wrote.


    Judges Chris Dillon and Toby Hampson joined Collins' opinion.

    In the Harnett County case, the Retirement Division seeks $197,805.61 from the local school board to help fund retirement benefits for a school employee who retired in 2017. In the Union County case, the Retirement Division seeks $13,269.18 to cover retirement costs for an employee who retired in 2017.