BANNAN v CITY OF SAGINAW
Docket Nos. 70703-70705
Supreme Court of Michigan
Decided December 28, 1984
Released January 17, 1985
420 MICH 376
Argued May 9, 1984 (Calendar No. 6). Rehearing denied 421 Mich 1202.
In an opinion by Justice Ryan, joined by Chief Justice Williams and Justices Brickley, Cavanagh, and Boyle, the Supreme Court held:
The plaintiffs’ duty disability pensions are not subject to an offset of workers’ compensation benefits received by the plaintiffs, and the provision of the workers’ compensation act that permits police or fire fighters to waive workers’ compensation benefits and receive instead like benefits under a municipal charter is not applicable in these cases because the pension
REFERENCES FOR POINTS IN HEADNOTES
[1-4] 60 Am Jur 2d, Pensions and Retirement Funds §§ 43, 44. 81 Am Jur 2d, Workmen‘s Compensation § 180. 82 Am Jur 2d, Workmen‘s Compensation § 364. Constitutional or statutory provision referring to “employees” as including public officers. 5 ALR2d 415.
[3] 73 Am Jur 2d, Statutes § 154.
1. The city pension ordinance, considered as a whole, does not require an offset of workers’ compensation benefits from duty disability pensions where recipients retired after age 55. The section of the ordinance that provides for retirement after age 55 contains no reference to offset of workers’ compensation benefits. By contrast, the section that provides for retirement before age 55 expressly provides for offset until duty disability retirees reach age 55. In construing statutes or ordinances, specific provisions control over general in the same ordinance, and all language in an ordinance is presumed to have meaning, leaving no part to be treated as surplusage. In these cases, the more specific limit of offset to persons who retire before 55, but not thereafter, takes precedence over the general offset provision. To interpret the specific provision as merely emphasizing the general would render the specific surplusage. In addition, the general offset provision is cross-referenced to other sections of the ordinance, none of which refer to duty disability retirees who retired after age 55. Such a construction is consistent with the policy underlying the city‘s pension system and with the public policy of construing pension laws in favor of beneficiaries.
2. Disability pension benefits for police officers and fire fighters which are provided under a city ordinance are not like benefits prescribed in a charter requiring a person entitled to the benefits to elect either pension or workers’ compensation benefits under the workers’ compensation act; thus a person who receives benefits under an ordinance plan is not precluded from pursuing a workers’ compensation claim. The distinction between a charter disability pension plan and an ordinance plan is more than a matter of form. Amendment of a city charter requires satisfaction of specific statutory provisions. Enactment of an ordinance is a simpler procedure and does not require voter approval. “Like benefits” under the workers’ compensation act must be legally enforceable rights, dependent on a charter and not reliant on the good will of a city council. Because in this case the pension plan was provided by ordinance and was not prescribed by the city charter, it is unnecessary to decide whether the pension benefits are “like benefits.”
Affirmed.
Justice Levin, joined by Justice Kavanagh, dissenting, stated that, consistent with the apparent legislative purpose of barring double recovery, the words “charter provisions prescribing like benefits” in the workers’ compensation act, should be
120 Mich App 307; 328 NW2d 35 (1982) affirmed.
OPINION OF THE COURT
1. MUNICIPAL CORPORATIONS — MUNICIPAL PENSION SYSTEMS — WORKERS’ COMPENSATION — OFFSET OF BENEFITS.
Duty disability pensions provided under a city police and fire fighter retirement system ordinance were not subject to a provision in the ordinance requiring the offset of workers’ compensation benefits received by retirees, where the retirees had retired after age 55 and where specific provisions required offset only where retirees retired before age 55; cross references contained in the general offset provision did not refer to retirees who retired after age 55, and an interpretation of the ordinance to include retirees who retired after age 55 would render the specific provision surplusage.
2. MUNICIPAL CORPORATIONS — WORKERS’ COMPENSATION — MUNICIPAL PENSION SYSTEMS — ELECTION OF BENEFITS.
The provision of the workers’ compensation act that permits police or fire fighters to waive workers’ compensation benefits and receive instead like benefits under a municipal charter was not applicable to duty disability pensions that were provided by a city ordinance (
DISSENTING OPINION BY LEVIN, J.
3. MUNICIPAL CORPORATIONS — WORKERS’ COMPENSATION — MUNICIPAL PENSION SYSTEMS.
The words “charter provisions prescribing like benefits” in the workers’ compensation act, should be construed to mean benefits authorized, provided for, or directed to be provided for in a city charter (
4. MUNICIPAL CORPORATIONS — MUNICIPAL PENSION SYSTEMS.
Duty disability pension benefits provided for in a city ordinance pursuant to a requirement in the city charter that a complete retirement system for police and fire fighters be provided by general ordinance are prescribed by the charter although details of the benefits are not set forth in the charter.
Braun, Kendrick, Finkbeiner, Schafer & Murphy (by Bruce L. Dalrymple and Timothy L. Curtiss) for the defendant.
RYAN, J. The plaintiffs in this case are three retired fire fighters who are eligible for both duty disability pensions under Saginaw‘s Policemen and Firemen Retirement System,1 and workers’ compensation benefits. We are called upon to decide two issues. The first is whether the plaintiffs’ duty disability pensions are subject to the offset provision found in § 129.1 of the Saginaw pension ordinance, so that their pension benefits can be reduced by the amount of workers’ compensation benefits they receive. Both the Saginaw Circuit Court and the Court of Appeals held that the plaintiffs’ pensions are not subject to such an offset. We agree.
The second issue presented for review is whether § 161 of the Michigan Worker‘s Disability Compensation Act,
All three plaintiffs in this case, James H. Bannan, George J. Kaufman, and Raymond J. Hale, were employed as fire fighters by the City of Sagi-
Mr. Bannan was employed by the city from 1942 until 1967. Since March 1, 1967, he has received weekly workers’ compensation benefits of $69 or $3,588 annually, pursuant to a decision of the Bureau of Workers’ Disability Compensation. Mr. Bannan became 55 years of age2 on March 1, 1969, and was retired by the city on May 23, 1969, under the duty disability retirement provision of the city‘s pension ordinance. Ord. No. D-1, ch 5, art 1, § 123.1. At this time, he became entitled to an annual pension of $3,479.06. However, since May 23, 1969, the city has deducted the full amount of weekly workers’ compensation benefits paid to Mr. Bannan from the amount of pension benefits to which he is entitled as a disability retirant. Since the amount of his workers’ compensation benefits exceeded his pension benefits, he has received no money from the Policemen and Firemen Retirement System of Saginaw. The amount of offsets in controversy totals $26,383.65.
Mr. Kaufman worked for the city from 1938 until 1973. He became 55 years of age on May 20, 1971. On November 21, 1974, the city voluntarily began paying Mr. Kaufman weekly workers’ compensation benefits, paid retroactively to September 20, 1973, of $104 per week or $5,408 annually. The parties stipulated in the trial court that Mr. Kauf-
Mr. Hale worked as a Saginaw fire fighter from 1949 until 1974. On March 9, 1974, the city voluntarily began paying him workers’ compensation benefits in the amount of $106 per week, or $5,512 annually. He became 55 years of age on September 14, 1974, and was granted a duty disability pension on that date, in the amount of $8,035.30 annually. As with Messrs. Bannan and Kaufman, the city deducted the full amount of Mr. Hale‘s workers’ compensation benefits from his pension benefits. The accumulated offset in controversy is $28,254.65.
In a consolidated opinion, the circuit court found in favor of the plaintiffs. Applying established rules of statutory construction, it concluded that § 129.1 of the city‘s pension ordinance, which mandates the offset of workers’ compensation benefits against pension benefits, is not applicable to a duty disability retirant after he attains 55 years of age. The judgments entered in favor of each of the plaintiffs required the city to reimburse the plaintiffs for pension payments wrongfully withheld, awarded interest on the amount due, and enjoined the city from deducting workers’ compensation benefits paid or payable from future pension benefits payable to the plaintiffs. The Court of Appeals affirmed in a per curiam opinion decided October 7, 1982. Bannan v City of Saginaw, 120 Mich App 307; 328 NW2d 35 (1982). The city‘s application for rehearing was denied on November 18, 1982. We granted leave to appeal. 418 Mich 880 (1983).
APPLICATION OF OFFSET PROVISION (§ 129.1) OF SAGINAW PENSION ORDINANCE TO OVER-55 DUTY-DISABLED RETIREES
Saginaw‘s pension ordinance, which contains the city‘s Policemen and Firemen Retirement System, provides for an offset of workers’ compensation benefits against pension benefits:
“Any workmen‘s compensation which may be paid or payable to a member retirant or beneficiary on account of his city employment shall be offset against any pensions payable to such member, retirant or beneficiary. In case the present value of the workmen‘s compensation is less than the pension reserves for the pension payable under this ordinance, the present value of such workmen‘s compensation shall be deducted from such pension reserves and such pensions as may be provided by the pension reserves so reduced shall be payable under the provisions of this article.” Ord. No. D-1, ch 5, art 1, § 129.1.
The plaintiffs retired under §§ 123-124, which provide for work-related disability pensions. Section 123 provides, in part:
“A member who becomes physically or mentally totally incapacitated for duty, as a policeman or fireman in the employ of the city, by reason of a personal injury or disease, which the board of trustees finds to have occurred as the natural and proximate result of causes arising out of and in the course of his employment with the city, and the medical director, after a physical examination of such member, certifies to the board that such member is physically or mentally totally incapacitated to perform the duties of a policeman or fireman in the employ of the city, shall be retired by the board upon written application filed with the board by the said member or his department head. * * * [Appeal procedure omitted] * * * Upon his retirement he shall
be entitled to a pension provided in Section 124.” Ord. No. D-1, ch 5, art 1, § 123.1.
Section 124 provides:
“124.1 A member, who retires at or after his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Section 118. Upon his retirement he shall have the right to elect, in lieu of his straight life disability pension, to receive his disability pension under an option provided for in Section 120.
“124.2 A member who retires prior to his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Subsections 118.1 and 118.3. For the exclusive purpose only of computing his disability pension his credited service shall be increased by the number of years, and fraction of a year, in the period from the date of his disability retirement to the date he would attain age 55 years. Upon his attainment of age 55 years his disability pension shall be recomputed using a final average salary determined according to the salaries at the time he attains age 55 years for the ranks used in computing his final average salary at the time of his disability retirement. In no event shall such recomputed disability pension be less than the disability pension he received prior to his attaining age 55 years. Upon his retirement he shall have the right to elect, in lieu of a straight life disability pension, to receive his disability pension under an option provided for in Subsection 120. To his attainment of age 55 years his disability pension shall be subject to Sections 128 and 129.” Ord. No. D-1, ch 5, art 1, §§ 124.1, 124.2 (emphasis added).
Each of the plaintiffs retired at or after age 55 pursuant to § 124.1. Section 124.1 contains no reference to the workers’ compensation benefits offset provision of § 129.1. In contrast, § 124.2, which applies to members who retire before age 55, expressly provides that the § 129.1 offset provi-
Finding an ambiguity in the pension ordinance, the Court of Appeals employed three familiar rules of statutory construction and applied them to the ordinance to interpret its meaning. Bannan, supra, pp 319-321. Firstly, applying the rule that specific provisions control over general ones in the same statute, the Court of Appeals found that “the last sentence of § 124.2 took precedence over the more general provision of § 129.” Bannan, supra, p 320. Secondly, the Court of Appeals noted that all language in a statute is presumed to have meaning and no part of a statute should be treated as surplusage. In response to the city‘s argument that the purpose of the last sentence of § 124.2 is merely to emphasize that under-55 duty disabled retirees are subject to the § 129 offset, the Court of Appeals stated that such an interpretation would render the last sentence of § 124.2 surplusage. Bannan, supra, p 320. The Court therefore concluded that the logical interpretation of § 124 is that the offset applies to duty disabled retirees until age 55, but does not apply thereafter. Bannan, supra, p 320. Thirdly, the Court of Appeals construed the ordinance as a whole, finding that § 129 is expressly cross-referenced in three different sections: (1) in § 122.1 relating to a retirant taking a nonduty disability retirement; (2) in §§ 127.1(b)-127.1(e) pertaining to pensions payable to widows, children, and dependents; and (3) in
Appellant, City of Saginaw, contends that the same rules of statutory construction employed by the Court of Appeals compel the opposite conclusion.
We are satisfied that the Court of Appeals interpretation of the pension ordinance is the correct one, and we agree with the reasoning and result of that portion of its opinion. Moreover, this interpretation is consistent with the policy behind the pension system involved in this case, which is funded in part by mandatory wage contributions. Ord. No. D-1, ch 5, art 1, § 131.2. Members of the system do not participate in the federal social security system. They may take a voluntary retirement at age 55. See footnote 2. We agree with the plaintiffs’ contention that to deprive duty disabled retirees of their earned retirement income, after they have become 55 years of age, is contrary to the underlying purpose of the pension ordinance.
Our holding that the § 129.1 offset does not apply to these plaintiffs is also consistent with the policy of liberally construing pension laws in favor of the intended beneficiaries. O‘Connell v Dearborn Pension Board, 334 Mich 208, 214-215; 54 NW2d 301 (1952). For these reasons, we hold that the pension benefits of duty disabled retirees who retire pursuant to § 124.1 of Saginaw‘s pension ordi-
II
APPLICABILITY OF § 161 OF WORKER‘S DISABILITY COMPENSATION ACT
The second issue presented is whether § 161 of Michigan‘s Worker‘s Disability Compensation Act,
“Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in the charter but shall not be entitled to like benefits from both. Nothing contained in this act shall be construed as limiting, changing, or repealing
any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.”
MCL 418.161 ;MSA 17.237(161) . (Emphasis added.)
Saginaw‘s City Charter contains the following language:
“A complete retirement system shall be provided for policemen and firemen of the city by general ordinance.” Ch XVI, § 1, amended effective January 1, 1965.
The Policemen and Firemen Retirement System is set forth in the city‘s ordinances, as discussed above. The issue, then, is whether the “like benefits” provision contained in § 161 of the WDCA is applicable where the retirement plan is provided by ordinance, adopted pursuant to a general provision in the charter.
In its discussion of this issue, the Court of Appeals distinguished Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975), in which a different panel of the Court of Appeals held that benefits received under a disability retirement plan prescribed in Muskegon‘s City Charter were “like benefits” under § 161. The Court found that Johnson was distinguishable from this case, in part because the pension benefits in Johnson were set forth in the city charter. Bannan, supra, p 322. The Court further held that the disability benefits in this case are “primarily retirement benefits,” and therefore not “like benefits” under § 161. Visiting Judge R. B. MARTIN concurred in the per curiam opinion below, but found it unnecessary to decide whether the pension and workers’ compensation benefits were “like benefits” because the
After the Court of Appeals released its decision in this case, we decided Vasser v Muskegon and Plough v Muskegon, 415 Mich 308; 329 NW2d 690 (1982). In those companion cases, we were confronted with the precise issue presented here. Vasser and Plough involved facts similar to these. A fireman and policeman employed by the City of Muskegon were granted duty disability pensions. Muskegon‘s retirement plan had previously been prescribed in the city charter, but, in 1973, the charter was amended to read as follows:
“A complete retirement system shall be provided for policemen and firemen of the City of Muskegon, by general ordinance.” Vasser, supra, p 312.
In both Vasser and Plough, the Workers’ Compensation Appeal Board affirmed the hearing referee‘s decision that the plaintiffs were required to elect between pension benefits and workers’ compensation benefits pursuant to § 161 and Johnson v Muskegon, supra. The Court of Appeals affirmed the WCAB. Vasser, supra, p 318.
In Vasser, this Court was equally divided on the issue of the applicability of § 161 to cases in which the benefits are prescribed in an ordinance adopted pursuant to a general provision in the charter. Justice WILLIAMS, in an opinion joined by Chief Justice FITZGERALD and Justice RYAN, held that “the language clearly states that the like benefits must be prescribed in the charter, and, thus, there is no room for judicial interpretation.” Vasser, supra, p 320. The opinion states:
“We are bound by the clear statutory language and thus conclude that like benefits must be prescribed in
the charter itself for
MCL 418.161 ;MSA 17.237(161) to be applicable. We hold that the pension benefits in these cases being received pursuant to an ordinance do not satisfy the statutory language, even though the ordinance was enacted pursuant to the charter.” Vasser, supra, p 321 (emphasis added).
In response to Muskegon‘s contention that § 161 is applicable because the city charter refers to the retirement plan, Justice WILLIAMS stated that such a reference fails to satisfy the clear language of the statute. Vasser, supra, p 321. Moreover, the distinction between a charter pension plan and a plan provided by ordinance “is more than a matter of form,” since a home-rule city‘s charter may only be amended with the electorate‘s approval, while the enactment of an ordinance is a much simpler procedure.5 Vasser, supra, p 321. Justice WILLIAMS’ opinion concluded that, under the clear and unambiguous language of the statute, the plaintiffs, if entitled, could receive both the pension benefits and workers’ compensation benefits. Vasser, supra, p 323.
In an opinion authored by Justice LEVIN, however, three members of the Court were “of the opinion that the details of ‘like benefits’ need not be set forth in the charter.” Vasser, supra, p 326.6 Instead, they construed the words “having charter provisions prescribing like benefits” as meaning the charter may direct, authorize, or provide for “like benefits.” Holding that the reference to a policemen and firemen retirement system in the Muskegon charter satisfied the relevant language of § 161, Justice LEVIN went on to conclude that
For the reasons given by Justice WILLIAMS in his opinion in Vasser, we are persuaded that § 161 is not applicable to the case before us. Where the language of a statute is clear and unambiguous, the court‘s role is to apply it as written. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971).
Our resolution of this issue makes it unnecessary for us to determine whether the pension benefits in this case are “like benefits” under § 161 of the WDCA,
The decisions of the Court of Appeals and the circuit court are affirmed.
WILLIAMS, C.J., and BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with RYAN, J.
LEVIN, J. (dissenting). This Court granted leave to appeal to resolve a controversy concerning the construction of the provision of the workers’ compensation act providing that police or fire department employees, or their dependents, in municipalities or villages “having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in the charter but shall not be entitled to like benefits from both.”
In Vasser v City of Muskegon, 415 Mich 308, 311; 329 NW2d 690 (1982), this Court was evenly divided on the question whether duty disability pension benefits provided under Muskegon‘s ordinance were encompassed within the meaning of
The opinion of the Court in the instant case adopts the view of three justices in Vasser that benefits are not prescribed by the charter “even though the ordinance was enacted pursuant to the charter“; “the like benefits must be prescribed in the charter itself.” Vasser, supra, pp 321, 313 (WILLIAMS, J.). We adhere to the view we expressed in Vasser that where, as in Vasser and here, the charter provided that a “complete retirement system shall be provided for policemen and firemen of the city by general ordinance”1 (emphasis supplied), benefits provided in an ordinance, adopted pursuant to such a charter direction to provide therefor, are prescribed by the charter although the details of the benefits are set forth in an ordinance and not in the charter itself.
We would construe the words “charter provisions prescribing like benefits” (emphasis supplied), as meaning benefits authorized, provided for, or directed to be provided for in the charter. “We believe this construction is consistent with and implements the apparent legislative purpose of barring double recovery.” Vasser, supra, p 326 (LEVIN, J.).
Within seven months after our 3-3 indecision in Vasser, the Legislature clarified its intention by amending the statute to eliminate the word “charter“; the operative language is now “providing like benefits.”2
“In 1 Sutherland Statutory Construction (3d ed 1943), p 418, § 1931, it is said:
“‘If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act—a formal change—rebutting the presumption of substantial change.’
“See, also, Attorney General v Lewis, 151 Mich 81 [1908]; Hambel v Lowry, 264 Mo 168 (174 SW 405) [1915]; John Morrell & Co v Unemployment Compensation Commission, 69 SD 618 (13 NW [2d] 498) [1944].
“In view of the factual situation existing at the time of the amendment it is a logical conclusion that the primary purpose of the legislature was, as above indicated, to clarify the statute because of the differences of opinion existing between the department of revenue and the board of tax appeals. Plaintiff‘s claim as to the force and effect to be given the amendment is not tenable. The presumption on which such claim is based does not obtain.”
The parties have not discussed whether the 1983 amendment, which substituted the amendatory
state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.”
The conclusion of the opinion of the Court that benefits provided in an ordinance are not within the intendment of the statute makes it unnecessary for the majority to address the question whether the benefits in the instant case are “like benefits.” Since the majority does not reach that question, we also express no opinion thereon.
KAVANAGH, J., concurred with LEVIN, J.
Notes
“Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this
“Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.”
The parties apparently agree that, since the plaintiffs’ complaints were filed and the decisions of the circuit court and Court of Appeals rendered before this amendment was enacted, it does not apply to this case. Therefore, we express no opinion as to its meaning or applicability.