Under City Code, Disabled Officer Has No Vested Property Right To Retirement Benefits

Deborah Tripp was a sworn police officer who began working for the Winston-Salem, North Carolina Police Department on February 6, 1989. Ten years later, she injured her back while away from work. The injury caused her persistent debilitating pain, and eventually resulted in her having surgery.

Tripp continued on light-duty assignments after her surgery until May 2002, when her doctor informed her that she was physically incapable of performing the duties of a sworn police officer.

The City’s retirement code has special provisions dealing with employees who did not have five years of “creditable service” as of August 20, 1990, a category into which Tripp fell. The code provides that such employees who are no longer able to perform the duties of a sworn police officer may be transferred by the City to other duties within the Police Department, subject to the approval of the City. The code also provides that should such an employee desire to transfer to a civilian position outside of the Department, the City would assist with such a transfer. Officers who elect not to accept a transfer to a new position in the police or other City departments “will not be eligible to continued participation in the City retirement plan.”

Tripp met with the Department Representative, who informed her of three positions within the Department for which she might be qualified. Eventually, Tripp accepted a job as a Police Records Specialist.

In November 2002, when interacting with her supervisor on her new job, Tripp said, “You piss me off,” and at a later date, “I cannot talk to you because I don’t want to hurt you.” From these incidents, an internal complaint was filed alleging that Tripp violated the City’s workplace violence policy. The City subsequently fired Tripp.

Tripp then filed a lawsuit alleging that the City violated her substantive due process rights to her former retirement plan. The North Carolina Court of Appeals thought otherwise, and dismissed Tripp’s lawsuit.

The Court reasoned that “Tripp’s argument presumes that her interest in her retirement benefits is a protected property interest, but in order for this to be so, she must have a legitimate claim of entitlement to the property interest. Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Thus, to determine whether Tripp has a claim of entitlement to her benefits, this Court must look to the City’s ordinances, which created the property interest. According to the City code, Tripp was never entitled to collect retirement benefits under her disability because the City reserved the option to transfer a disabled police officer to another position in the Department or elsewhere in the city. Therefore, Tripp’s interest in her retirement was not a protected property interest.”

Tripp v. City of Winston-Salem, 2008 WL 304753 (N.C.App. 2008).

This article appears in the June 2008 issue