Thоmas N. SHIOMOS, Petitioner, v. COMMONWEALTH of Pennsylvania, STATE EMPLOYES’ RETIREMENT BOARD, Respondent.
Commonwealth Court of Pennsylvania.
July 28, 1989
562 A.2d 969 | 128 Pa. Commw. 39
PALLADINO, Judge.
Abbott A. Leban, Chief Counsel, Irene Mary Chiavaroli, Asst. Counsel, Harrisburg, for respondent.
Before CRAIG, DOYLE, BARRY, COLINS, PALLADINO, MCGINLEY and SMITH, JJ.
Thomas N. Shiomos appeals frоm an order of the Pennsylvania State Employes’ Retirement Board (Board) terminating his eligibility for retirement benefits, effective November 4, 1987.
The facts are not in dispute,1 and they are as follows. Shiomos served as a judge of the Court of Common Pleas of Philadelphia County from January 3, 1973 until his retirement on March 1, 1984. Following retirement, Shiomos withdrew his accumulated deductions from the State Employes’ Retirement System (SERS). Commencing on his retirement date, Shiomos began receiving, as an annuitant of SERS, a gross monthly benefit of $1,883.61.
Subsequent to his retirеment, Shiomos was designated a senior judge by the Chief Justice of Pennsylvania. Shiomos‘s last assignment was to sit on the Philadelphia Court of Common Pleas for the month of November, 1986. On November 18, 1986, the Chief Justice revoked the order assigning Shiomos a seat on thе Philadelphia County Court of Common Pleas.
On November 28, 1986, the Judicial Inquiry and Review Board (JIRB) commenced disciplinary proceedings against Shiomos, and, on August 5, 1987, the JIRB filed with the Pennsylvania Supreme Court its opinion and recommendation in Shiomos‘s case. The JIRB recommended that Shio
On July 20, 1988 the Board entered an order suspending payment of retirement benefits to Shiomos, effective with any payment due Shiomos for the month of August, with the suspension continuing until further order of the Board. Shiomos appealed the order of suspension to the Board, and sought to have SERS reinstate the payment of his retirement benefits. On October 13, 1988, the Board denied Shiomos‘s appeal, and entered an order terminating Shiomos‘s retirement benefits as of November 4, 1987.
The Board reasoned that the supreme court‘s November 4, 1987 order adopting the JIRB‘s recommendation constituted removal within the meaning of
Shiomos raises two issues for review: 1) whether the Board еrred in concluding that Shiomos was removed from judicial office within the meaning of
We begin by noting the relevant provisions of the Pennsylvania Constitution.
The Supreme Court shall review the record of the board‘s proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline or compulsory retirement, or wholly reject the recommendation, as it finds just and proper ... Upon an order for suspension or removal, the justice or judge shall be suspended or removed from оffice, and his salary shall cease from the date of such order.
Shiomos argues that the supreme court, by ordering that Shiomos “be forever barred from judicial duties or office” did not remove Shiomos from office. We disagree. Shiomos‘s argument is premised on the supreme court‘s opinion in In the Matter of Glancey, 518 Pa. 276, 542 A.2d 1350 (1988) (Glancey II).2 The argumеnt made by Shiomos was recently addressed by this court in Glancey v. State Employes’ Retirement Board, 126 Pa.Commonwealth Ct. 457, 560 A.2d 263 (1989), in which we affirmed, by an equally divided en banc court, the Board‘s denial of Glancey‘s application for retirement benefits. Glancey argued to us that the supreme court‘s order in his case, whiсh
There can be no question but that the Supreme Cоurt forever barred Glancey from holding judicial office, based upon his misconduct. Just as Glancey‘s resignation could not permit him to evade this bar, his resignation cannot be used to evade another section of Article V, especially whеre a majority of the Supreme Court has explicitly recognized that being forever barred from holding judicial office flows automatically from the sanction of removal. Cunningham.4 We therefore believe that the entry of an order forever barring Glancey from holding judicial office constitutes an implicit order of removal for purposes of Article V, Section 16(b).
Glancey v. Retirement Board, 126 Pa.Commonwealth Ct. at 461-464, 560 A.2d at 265-66 (emphasis in original). We hereby adopt the reasoning of Judge Barry‘s opinion in support of affirmance.
In addition, we note that
Shiomos next argues that the Board did not have authority to deny him retirement benefits for the period of judicial service prior to thе conduct that was the subject of
Glancey also argues that he should be entitled to collect that portion of his retirement pay earned while he engaged in ‘exemplary service.’ He thus argues that the retirement contract is somehow divisible and if he is to be disqualified, the disqualification should go to that period in which he engaged in misconduct. In support thereоf, Glancey cites the opinion of Justice (now Chief Justice) Nix in Miller v. State Employees’ Retirement Board, 498 Pa. 103, 445 A.2d 88 (1981), which involved the application of the Public Employees Pension Forfeiture Act, Act of July 8, 1978, P.L. 752, as amended,
43 P.S. §§ 1311-15 (Supp.1988-89). That act provided that one convicted of crimes relating tо public employment would forfeit retirement benefits. The public employees there, like Glancey, had served the required ten years to obtain a vested pension prior to the effective date of the act. By an equally divided cоurt, the Supreme Court affirmed this court‘s order that the act could not be applied retroactively to deny retirement benefits to those whose rights had vested. Generally, Miller is inapposite to the present case which concerns Articlе V of the Constitution, the relevant portions of which were in effect at the time Glancey became a member of the system.
126 Pa.Commonwealth Ct. at 463-464, 560 A.2d at 266-67.
Shiomos has referred us to Miller, as well as three other cases5 decided under the Public Employee Pension Forfeiture Act. All of these cases are inapposite becаuse the present case is governed by
Accordingly, the order of the Board is affirmed.
CRUMLISH, Jr., President Judge, and COLINS, J., did not participate in this case.
SMITH, J., dissents.
ORDER
AND NOW, July 28, 1989, the order of the State Employes’ Retirement Board in thе above captioned case is affirmed.
MCGINLEY, Judge, dissenting.
The opinion affirming the denial of retirement benefits notes that Shiomos’ service commenced on January 3, 1973, and that he retired on March 1, 1984, at which time he withdrew his accumulated deductions and bеgan receiving his monthly benefits. The denial is rooted in
In Glancey v. State Employes’ Retirement Board, 126 Pa. Commonwealth Ct. 457, 560 A.2d 263 (1989), the opinion in support of affirmance1 noted that:
Section 18(h) provides that upon an order of removal or suspension, thе judge‘s ‘salary shall cease from the date of such order.’ (Emphasis added.) We believe the use of the two terms (salary and compensation) is significant.
‘Compensation’ is defined as ‘payment.... for service rendered.’ Webster‘s Third New International Dictionary 463 (1966). ‘Salary,’ on the other hand, is defined as ‘fixed compensation paid regularly (as by the year, quarter, month or week) for services ...’ d. at 2003. A review of these definitions shows that ‘salary’ is a part of a total compensation package, more specifically, present compensation. Public retirement benefits, again, are deferred compensation. Once a judge is removed and therefore has forfeited his office, no more services may be rendered and no more salary can be due. It necessarily follows that the section 16(b) prohibition against paying ‘compensation’ to a removed judge must refer to deferred compensation, i.e. retirement benefits. That a judge makes contributions to a retirement fund out of salary troubles us not, as those contributions plus statutory interest will be returned to the errant jurist.
Glancey, 126 Pa. Commonwealth Ct. at 462, 560 A.2d at 266 (in support of affirmance) (emphasis added).
As noted by the Honorable James Gardner Colins in the opinion in support of reversal in that matter, had the Pennsylvania Supreme Court wished to “remove” Glancey, it could have done so specifically. Glancey, 126 Pa. Commonwealth Ct. at 459, 560 A.2d at 264 (in support of reversal). However, no such order was entered in that matter, just as no specific order has been entered in the matter sub judice.
Alternatively, while public retirement benefits are deferred compensation, it does not necessarily, nor reasonably, follow that Shiomos’ retirement benefits are “compensation” as that term is used in the Section 16(b) sanction.
A reasonable interpretation of the term “compensation” as set forth in section 16(b) must be compatible with the authority of the Pennsylvania Supreme Court to remove, must avoid any impairment of constitutional rights, and must be consistent with statutory pension rights.
The order of the Board should be reversed and the matter remanded.