Judge rules against West Virginia on military pension credits

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CHARLESTON, W.Va. – West Virginia’s retirement agency must stop withholding pension credits from some state employees with military service while awarding them to others, a Kanawha Circuit judge has ruled.


Judge Paul Zakaib found in favor of five employees after combining their lawsuits. He ordered the state’s Consolidated Public Retirement Board to award them the credits they’ve earned. But the judge stopped short of allowing the case to become a class action for all such individuals, as the employees had sought.


The board is still reviewing the order, issued Wednesday, spokeswoman Diane Holley-Brown said Friday.


“I’m hopeful that the retirement board will now apply this order to all state employees,” said Lonnie Simmons, a Charleston lawyer representing the employees.


State employees earn pensions based on years of service and final salary amounts. Depending on which retirement plan covers them, employees can add military service to that calculation. Zakaib’s ruling addresses the Public Employees Retirement System, the state’s main program, which offers veterans up to five years’ credit for active-duty service during a draft or “a period of armed conflict.”


The petitioners served in the Army, Navy and Marines. They include Ted Cheatham, director of the Public Employees Insurance Agency. Cheatham, for instance, was an Army pilot and held posts including combat aviation brigade commander between 1977 and 1988.


“They’re the kind of people that the state ought to be happy that they’re hiring,” Simmons said Friday. “It’s a great incentive for military veterans to be employed by the state. For the board to then not given them the credit that they were required to receive just never made any sense.”


These and other employee-veterans have sparred with the board over what counts as a period of armed conflict. The board has relied on a list of conflicts going back to the Spanish-American War. But Zakaib agreed with Simmons, who noted that the law also provides credits for “any other period of armed conflict” as well. Cheatham, for example, served during military operations in Nicaragua, Somalia, Lebanon, Grenada and Panama, the order said.


“The Legislature never explicitly intended the military service credit awarded under this statute to be limited to the specific armed conflicts listed,” Zakaib wrote.


Lawmakers have been debating the service credit policy in response to earlier court challenges brought by employee-veterans. Several measures on the topic are pending this session. At least two other judges have ruled against the retirement board in similar cases. One issued in January awarded credits sought by retired Adjutant General Allen Tackett, the former longtime commander of the West Virginia National Guard.


Former state Administration Secretary Rob Ferguson, who as a Marine officer served during several armed conflicts, advocated for a consistent service credit policy during his tenure. He has also become a voice for fellow veterans and groups who enlisted him to help clear up the ongoing dispute over the policy.


“To have remained silent on this issue as a public servant and a Marine veteran would have been disloyal,” Ferguson said Friday. “It is my hope that this ruling along with the two other similar circuit court rulings will bring a close to this issue.”


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