No Retirement Credit During Unpaid Suspension

Sean Weaver, a liquor control officer for the Pennsylvania State Police, was a member of Pennsylvania’s State Employees’ Retirement System. Weaver was terminated in November 1997 based on bad conduct at a licensed facility while off duty. He filed a grievance that proceeded to arbitration. After a hearing, an arbitrator issued an award in 2001 sustaining the grievance in part, and denying it in part. His discharge was modified to a suspension “with no loss of seniority but with no back pay.” The Arbitrator later clarified the Award to state: “With no loss of seniority or loss of service credit but with no back pay.”

The State Police appealed the Arbitrator’s award, arguing it required credit for more than three years when Weaver was not salaried. A court affirmed the Arbitrator’s award, holding it did not violate the Retirement Code. The Retirement System was not involved in the court proceedings.

In 2009, the Retirement System held its own proceedings concerning the arbitration decision. When the System ruled that Weaver was not entitled to service credit for the time period he was suspended, Weaver appealed through the court system.

Pennsylvania’s Commonwealth Court upheld the decision to deny Weaver credit for the suspension time. The Court pointed to a state statute providing that “no collective bargaining agreement nor any arbitration award between the Commonwealth and its employees or their collective bargaining representatives shall be construed to change any of the provisions [in the retirement statute].” The Court found that “the Arbitrator’s use of the phrasing ‘no…loss of service credit’ is significant. Based on its plain language, the 2001 Award did not confer pension rights on Weaver. The 2001 Award did no more than provide that PSP could not penalize Weaver by causing the loss of any service credit due to him under the Retirement Code. Notably, the Arbitrator did not attempt to instruct a non-party, such as the Retirement System, as to its responsibilities. To comply with the 2001 Award, the State Police needed to do all it could to help Weaver obtain service credit for the period of his Suspension.

“The law is clear that an arbitrator cannot create or confer pension rights where such rights are inconsistent with the Retirement Code. [Service credits under the Retirement System] are credited only when contributions are made. This Court consistently holds that credited service and compensation are tied together. There is no dispute that Weaver was not paid during his suspension. The Arbitrator was clear that Weaver was not entitled to any back pay during the suspension. Without compensation, Weaver is not entitled to credited service.

“In sum, there is no provision for awarding credited service when an employee is on a type of unpaid leave that is not set forth in the Retirement Code. As members have only those benefits expressly provided in the Retirement Code, Weaver did not establish grounds for a service credit corresponding to the suspension. Although crediting service is not illegal per se under the Retirement Code, as this Court noted the statute is silent. In such cases, it is appropriate to defer to the Retirement Board in the statute’s construction. Accordingly, we affirm the Board.”

Weaver v. State Employees’ Retirement Board, 2015 WL 6434567 (Pa. Cmwlth. 2015).