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In re Appeal of Barry11/30/1998
Manchester Retirement Board
The petitioners, Kevin G. Barry and Marcel J. Gagnon, appeal an order of the Board of Trustees of the City of Manchester Employees' Contributory Retirement System (retirement board) offsetting their workers' compensation lump sum settlements against their retirement disability pensions. We reverse and remand.
This is the second time this case has come before us. See Appeal of Barry, 141 N.H. 170, 681 A.2d 75 (1996). In the first appeal, the petitioners argued that the City of Manchester (city) was not authorized to modify the retirement system by amending the city charter. Id. at 173, 681 A.2d at 77. In particular, the petitioners contended that the city improperly adopted section 8.09 of the Manchester City Charter, which states in part:
"Any amounts which may be paid or payable to, or on account of, any member or retired member on account of any disability to which the city has made contributions under the provisions of any workers' compensation or similar law or plan shall be reduced against or from the city pension on account of the same disability."
We did not address this argument, however, because the petitioners failed to raise the issue in a motion for rehearing below, and thus failed to comply with the requirements of RSA 541:4 (1997). See Appeal of Barry, 141 N.H. at 173, 681 A.2d at 77.
Alternatively, the petitioners argued that the offsets included portions of their lump sum settlements which were not comparable to their disability pension benefits. Id. at 174, 681 A.2d at 77. We enunciated the correlation rule to determine what portion of the petitioners' workers' compensation settlements, if any, could be offset from their disability pension benefits. Id. at 175, 681 A.2d at 78. Accordingly, we vacated the retirement board's order and remanded for a determination of the permissible offsets in accordance with the correlation rule. Id. at 176, 681 A.2d at 79.
On remand, the retirement board offset the entire amount of petitioner Gagnon's workers' compensation lump sum settlement, and $27,295 of petitioner Barry's $42,000 workers' compensation lump sum settlement. Although argued by the petitioners, the retirement board did not consider whether section 8.09 was improperly adopted, reading our decision in Appeal of Barry as dispositive of that issue. The petitioners filed a motion for rehearing, this time properly raising the issue therein. See RSA 541:4. The retirement board denied the motion and this appeal ensued.
On appeal, the petitioners argue that section 8.09 is invalid because the city had no authority to adopt it by charter amendment. We agree. Because this issue is dispositive of the appeal, we need not address the petitioners' other arguments.
We will not set aside the retirement board's order unless it is contrary to law or we find by a clear preponderance of the evidence that the order is unjust or unreasonable. RSA 541:13 (1997); see Appeal of AFSCME Local 3657, 141 N.H. 291, 293, 681 A.2d 100, 102 (1996).
The petitioners contend that the retirement board is not authorized to offset their workers' compensation settlements from their disability pensions. The petitioners argue that the retirement system as enacted by the legislature, see Laws 1973, ch. 218, and subsequently amended by the legislature, see Laws 1976, ch. 24, does not authorize a workers' compensation offset. While the retirement system and its subsequent amendment were approved by a city referendum pursuant to these session laws, the petitioners argue that section 8.09 of the city charter was unlawfully adopted by a city referendum without legislative authority. Because section
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