West Virginia Consolidated Public Retirement Board v. Robert Clark, 20-0350

Background:

Natural Resources Police (DNR) officers received a statutory biweekly $60 subsistence allowance under W. Va. Code § 20-7-1(i) for telephone service, dry cleaning/uniforms, and meals; the allowance was paid with regular paychecks and reported on W-2s.
The allowance was not tied to actual expenses: no receipts were required, unused portions were not returned, and it was paid during paid leave—distinguishing it from statutory expense reimbursements under § 20-7-1(h).
For over 20 years the allowance was treated as ordinary wages: it affected federal/state taxable income, PEIA premium calculations, PERS employee/employer contributions, and retirement benefit computations.
The West Virginia consolidated retirement statute defines “compensation” for pension purposes and excludes “lump sum or other payments” that do not constitute regular salary or wage payments. The majority concluded subsistence pay is excluded; Justice Wooton disagrees.
Procedurally: the majority held respondents cannot be stripped of retirement benefits because the Retirement Board failed to timely correct its practice; Justice Wooton concurs with that relief but dissents from the majority’s statutory characterization ruling.

Issues:

Issue	Board's Argument	Respondents' Argument	Held
Whether the subsistence allowance is “compensation” under W. Va. Code § 5-10-2(8)	The allowance is an excluded “lump sum or other payment” and not pensionable compensation	The allowance is a regular, recurring salary/wage addition and therefore pensionable compensation	Majority: not compensation (excluded). Justice Wooton: disagrees — it is compensation
Whether the Retirement Board may retroactively strip/recoup pension benefits calculated including the allowance	The Board may correct overpayments and adjust pensions	Board failed to timely act; participants relied on long-standing treatment so benefits cannot be stripped	Court: Board cannot strip benefits due to its failure to timely correct (Wooton concurs)
Proper statutory construction of the exclusion clause (use of ejusdem generis / noscitur a sociis)	Plain meaning of the statutory exclusion controls; canons unnecessary	General words must be read in light of the listed, similar examples; the allowance is dissimilar to listed lump‑sum/irregular payments	Majority applied plain-language exclusion; circuit court applied the canons and found allowance not of same class; Wooton supports circuit’s canons-based reading
Relevance of long-standing administrative/tax treatment of the allowance	Tax/reporting treatment is irrelevant to statutory meaning	Decades of treating the allowance as wages (W-2, payroll, PERS deductions) supports that it is regular compensation and reflects legislative/admin intent	Majority discounted treatment; Wooton treats long-standing treatment as probative and supports pensionability

Key Cases Cited

Anderson v. City of Long Beach, 341 P.2d 43 (Cal. Ct. App. 1959) (treatment of a clothing/uniform allowance as salary for pension purposes is relevant to pensionability)
SAIF Corp. v. Sparks, 309 P.3d 174 (Or. Ct. App. 2013) (subsistence paid as a fixed recurring amount with no receipts can be wages rather than reimbursement)
Hilligoss v. LaDow, 368 N.E.2d 1365 (Ind. Ct. App. 1977) (distinguishing lump‑sum or conditional allowances from regular salary additions)
Murray v. State Farm Fire & Cas. Co., 203 W. Va. 477 (W. Va. 1998) (discussing ejusdem generis and noscitur a sociis principles for reading general words with specific examples)
Marcellus Shale Coal. v. Dep’t of Env’t Prot., 193 A.3d 447 (Pa. Commw. Ct. 2018) (general words in non‑exhaustive lists should be similar in nature to listed items)
In re Marriage of Murphy, 885 P.2d 440 (Mont. 1994) (including subsistence pay in gross income for child‑support computations)
Iron Workers Local 118 v. N.L.R.B., 804 F.2d 1100 (9th Cir. 1986) (including subsistence pay in back‑pay awards under labor law)