Court allows judges to keep drawing retirement while on bench

CHARLESTON – The state Supreme Court has ruled that two circuit judges can continue to receive retirement benefits while also earning a salary.

The retirements of Kanawha County Circuit Judge Charles King and Cabell County Circuit Judge Alfred Ferguson were at issue in a lawsuit filed by Richie Robb, a former city attorney for Nitro and the mayor of South Charleston for 22 years.

King retired on Oct. 16, 2008, and was re-elected the following month. Ferguson retired Oct. 31, 2008, and was also re-elected soon after.

At the time of their retirements, the two had put in a combined 68 years with the Public Employees Retirement System. They were also both unopposed for re-election.

“At the outset, the court notes the legislature has since acted to prevent other public officials from taking similar actions,” says the unanimous memorandum decision, released March 29.

“Senate Bill 244 amended West Virginia Code… to provide in pertinent part that ‘(n)otwithstanding the provisions of this subsection, a member who is participating in the system as an elected public official may not retire from his or her elected position and commence to receive an annuity from the system and then be elected or reappointed to the same position unless and until a continuous 12-month period has passed since his or her retirement.”

However, nothing in the language of the 2009 law suggests it should be applied retroactively, the court said.

Robb’s lawsuit originally charged Summers County Magistrate William Jeffries with the same, but the decision says Robb was no longer challenging Jefferies’ retirement.

The ruling affirmed an order entered Nov. 7, 2011, by Senior Status Judge James O. Holliday.

Holliday ruled Robb did not have standing to bring the action and that he failed to establish the three elements required to invoke mandamus. The first was a clear right to the relief sought, the second was a legal duty on the part of the West Virginia Consolidated Public Retirement Board to stop paying the benefits and the third was an absence of another adequate remedy.

“The actions of the three judicial officers were in compliance with the law in place at the time they retired,” Holliday wrote.

“With the 2009 amendment… there is no longer any issue of controversial vitality relating to payment of retirement benefits to retired public employees who are subsequently elected to public office.

“In effect, the Legislature has closed the ‘loophole.’ Although the petitioner may have been correct in noting that there was great public outcry at the actions of the three judicial officers, the Legislature has acted to prevent such actions in the future.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.