Sindt v. Retirement Board

2007 UT 16
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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John A. Sindt, No. 20050922
Petitioner,
v.
Retirement Board,
Respondent.
_____________________
F I L E D
Salt Lake County,
Intervenor. February 2, 2007
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Original Proceeding in the Utah Court of Appeals
Attorneys: John N. Brems, Lisa R. Petersen, Salt Lake City,
for petitioner
Daniel D. Andersen, Salt Lake City, for respondent
Donald H. Hansen, Melanie F. Mitchell, David E.
Yocum, Salt Lake City, for intervenor
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On Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
¶1 This case comes before us on review from a grant of
summary judgment issued by the Utah State Retirement Board (the
Board). Plaintiff John A. Sindt argues that the Board erred in
concluding that he was not entitled to benefits from the Utah
state retirement system. We reverse and remand.
BACKGROUND
¶2 Mr. Sindt served as an elected constable for Salt Lake
County (the County) from 1967 until 1974. He was again elected
as a County constable in 1979 and served until 1986. From July
1991 to 1999, Mr. Sindt was an appointed constable for the
County. He seeks state retirement benefits for these periods.
¶3 As a constable, Mr. Sindt performed services for the
County. Those services, however, constituted only a fraction of

1 Mr. Sindt reported no salary or wages from the County
during this period. His individual tax returns reflect that he
reported business income from several entities over the years.
From 1987 to 1991, Mr. Sindt conducted business through his
company “John A. Sindt.” From 1992 to 1998, he operated a
business under the name “John Sindt Constable.” He also reported
income from S corporations from 1994 to 1999, one of which was
“Constable Office, Inc.” In 1991 and 1992, corporate tax returns
for “Constable Office, Inc.” reported “no activity,” but from
1994 to 1999, this entity did report income.
No. 20050922 2
his work, most of which was performed for private entities. Mr.
Sindt was not paid a salary for his services to the County;
instead, he billed the County on a fixed fee-per-service basis.
The record does not contain complete tax records for Mr. Sindt
going back to 1967, but the tax returns from 1987 to 1999 reveal
that Mr. Sindt’s business entities were paid by his clients,
including the County, and Mr. Sindt received income from those
entities.1 Furthermore, from 1984 to 1987 (the only years for
which records were provided to the Board), the County’s payments
to Mr. Sindt were reported on federal 1099 forms and used his
corporate tax identification number. Thus, on the record before
this court, the County has never paid Mr. Sindt as an individual.
The County has never exerted control over the operation of Mr.
Sindt’s constable business. It never regulated or controlled his
hours of operation, marketing, employees, or clientele, and the
County never provided office space, supplies, or insurance to Mr.
Sindt.
¶4 In 1999, Mr. Sindt filed a claim for participation in
the Utah state retirement system. This claim was denied, and Mr.
Sindt filed a request for Board action. The County intervened in
this action and filed a motion for summary judgment. The Board
granted the motion for summary judgment, denying Mr. Sindt’s
claim for retirement benefits. Mr. Sindt sought a writ of review
from the court of appeals, and the court of appeals certified the
case to this court. We have jurisdiction pursuant to Utah Code
section 78-2-2(3)(b) (2002).
STANDARD OF REVIEW
¶5 The legislature has established that the Utah State
Retirement Board shall
develop broad policy for the long-term
operation of the various systems, plans, and
programs under broad discretion and power to
perform the board’s policymaking functions,
including the specific authority to interpret
and define any provision or term under this

3 No. 20050922
title when the board or office provides
written documentation which demonstrates that
the interpretation or definition promotes
uniformity in the administration of the
systems or maintains the actuarial soundness
of the systems, plans or programs.
Utah Code Ann. § 49-11-203(1)(k) (2002). Thus, the Board is
entitled to deference at times, but the discretion granted to the
Board by the legislature is limited. The legislature has granted
discretion to the Board only if it “provides written
documentation which demonstrates that the interpretation or
definition promotes uniformity in the administration of the
systems or maintains the actuarial soundness of the systems,
plans or programs.” Id. Additionally, courts will grant
deference only if the Board’s interpretation or definition is
plausible and consistent with the plain language of the statute.
In this case, the Board has not provided any documentation that
its statutory interpretation promotes uniformity or actuarial
soundness. Thus, the Board’s decision is not entitled to
deference. Absent a grant of discretion, we review the Board’s
application or interpretation of a statute as a question of law
under the correction-of-error standard. Morton Int’l, Inc. v.
State Tax Comm’n, 814 P.2d 581, 589 (Utah 1991). We will “grant
relief only if, on the basis of the agency’s record, [we]
determine[] that a person seeking judicial review has been
substantially prejudiced [because] . . . the agency has
erroneously interpreted or applied the law.” Utah Code Ann.
§ 63-46b-16(4), (4)(d) (2004).
ANALYSIS
¶6 Mr. Sindt argues that he is entitled to participation
in the state retirement system for all years in which he acted as
an elected or appointed constable for Salt Lake County. The
County, on the other hand, contends that Mr. Sindt is not
entitled to any retirement benefits because during the entirety
of his service, Mr. Sindt was an independent contractor. We are
not fully persuaded by the position of either party. We cannot
ignore the express inclusion of constables within the retirement
act in effect when Mr. Sindt first became a constable. Nor can
we ignore the ambiguous nature of the constable position in the
category of elected and appointed officers. Accordingly, we must
construe the language of the numerous acts in effect over Mr.
Sindt’s career to determine whether, at any given time,
constables were eligible for coverage in the state retirement
system.
¶7 In January 1967, Mr. Sindt took the official oath to
become a constable for the County. At that time, the state

2 Salt Lake County Ordinance 2.50.040 identifies constables
as independent contractors, as does the County’s constable
contract.
The Board analyzed the relationship between the County and
Mr. Sindt and concluded that he was an independent contractor
because he never received a wage or salary from the County; he
billed on a fee-per-service basis; he provided his own office
space, supplies, equipment, vehicles, postage, stationary, and
weapons; he performed his services through a corporate entity; he
hired and employed his own office staff and deputies; he
determined the compensation of his employees; he solely
controlled the timing and manner in which his constable services
were performed; he had multiple clients, only one of which was
the County; he controlled billing for his services; and he had
exclusive control over the assignment and delegation of constable
duties within his office. Furthermore, the Board recognized that
the County never regulated the marketing of Mr. Sindt’s constable
services; it never controlled his hours of operation or the
number and identity of his clients; and it never provided Mr.
Sindt insurance or other benefits.
No. 20050922 4
retirement act in effect was the Utah Public Employees’
Retirement Act (1965 Act), Utah Code Ann. §§ 49-1-32 to -73
(Supp. 1965), repealed by 1967 Utah Laws ch. 106. The 1965 Act
specifically included “constables” within its definition of
“employee.” The Act provided that employee “shall mean, also, an
officer elective or appointive including constables, . . . who
receives as compensation from an employer $30.00 or more per
month.” Id. § 49-1-34(5).
¶8 “Under our rules of statutory construction, we look
first to the statute’s plain language to determine its meaning.”
Mountain Ranch Estates v. State Tax Comm’n, 2004 UT 86, ¶ 9, 100
P.3d 1206. This court presumes “that the terms of a statute are
used advisedly” by the legislature. Bd. of Educ. v. Salt Lake
County, 659 P.2d 1030, 1035 (Utah 1983). “Therefore, effect
should be given to each such word, phrase, clause, and sentence
where reasonably possible.” Chris & Dick’s Lumber & Hardware v.
Tax Comm’n, 791 P.2d 511, 516 (Utah 1990) (Howe, J., dissenting)
(citations omitted). The explicit inclusion of “constables” in
the 1965 Act reflects that the legislature recognized the
ambiguity of the constable position within the realm of elected
and appointed officers, prompting it to explicitly include
“constables” within the definition of “employee.” In the case
before us, the County and the Board addressed the unique nature
of constables and concluded that they should be identified as
independent contractors.2

3 Not only is “compensation” a necessary element of the
definition of “employee,” but it is also a prerequisite to other
portions of the Act. The 1965 Act provides that “[e]ach employee
who enters into covered services for a participating employing
unit . . . shall become a member of the retirement system
effective upon the date of employment.” Utah Code Ann. § 49-1-
48(4) (1965 Supp.) (emphasis added). Thus, to become a member of
the system, “covered services” must be performed. “Covered
service” is defined as “service rendered to an employer for
compensation.” Id. § 49-1-34(7) (emphasis added). As noted in
the text, “compensation” only encompasses “payments made by an
employer to an employee.” Id. § 49-1-34(12) (emphasis added).
Thus, multiple sections of the Act require the County to pay Mr.
Sindt, not his corporation or business entity, in order for him
to participate in the state retirement system.
5 No. 20050922
¶9 The nature of a constable’s service to a government
entity, apparent in Mr. Sindt’s role as a County constable,
occupies a unique position, unlike that of other elected and
appointed officers. For example, Mr. Sindt’s billing on a fee-
per-service basis, the lack of control by the County over the
operation of his business, and the County’s status as only one of
multiple clients set constables like Mr. Sindt apart from other
elected and appointed officers. Despite the distinctive nature
of the constable within the framework of elected and appointed
officers, however, we cannot ignore the plain language of the
1965 Act, which was in effect when Mr. Sindt began his service as
County constable. In the 1965 Act, constables were explicitly
eligible for participation in the public employees’ retirement
system.
¶10 Being a constable, however, did not automatically place
Mr. Sindt within the definition of employee under the 1965 Act.
Only constables “who receive[d] as compensation from an employer
$30.00 or more per month” fully qualify under the definition of
employee. Utah Code Ann. § 49-1-34(5) (Supp. 1965) (emphasis
added). “Compensation” means “the total amount of payments made
by an employer to an employee for services rendered to the
employer.” Id. § 49-1-34(12) (emphasis added). Thus, Mr. Sindt
had to be paid as an individual employee by the County in order
to be included within the definition of employee under the 1965
Act. County payments for services rendered by Mr. Sindt that
were made to his business or corporation do not fall within the
definition of compensation. Compensation is a prerequisite to
eligibility for constables in the state retirement system under
the 1965 Act.3
¶11 Mr. Sindt has the burden of proving that the County
indeed made payments to him, as an individual employee. If the

4 The record before this court contains financial records
for only this limited time period and thus could not enlighten us
as to his other years of service.
5 Mr. Sindt argues that if the legislature’s intent was to
exclude constables from coverage under the 1967 Act, it would
have listed them in Utah Code section 49-10-14 (Supp. 1967).
That section, however, is inapplicable as its purpose was to
exclude non-career employees from coverage as well as employees
receiving contributions toward the Teachers’ Insurance and
(continued...)
No. 20050922 6
payments were made to Mr. Sindt’s businesses, as they were from
1984 to 1999,4 then he would not be entitled to participation in
the state retirement system.
¶12 Thus, constables are eligible for coverage in the state
retirement system under the 1965 Act only if they were paid as
individuals by their employer. Mr. Sindt unmistakably was an
elected constable when the 1965 Act was in effect, but he still
must prove that he was paid as an individual by the County to
qualify for participation in the state retirement system.
¶13 In 1967, the legislature repealed the 1965 Act and
enacted the Utah State Retirement Act (1967 Act), Utah Code Ann.
§§ 49-10-1 to -55 (Supp. 1967), repealed by 1987 Laws of Utah ch.
1, § 180. The new Act’s definition of employee differed in one
significant way regarding elected and appointed officers: the
explicit reference to constables was removed. Compare id. § 49-
10-6(6) (Supp. 1967), with id. § 49-1-34(5) (Supp. 1965). As
stated above, the legislature apparently recognized the peculiar
nature of the constable position when it explicitly included the
position in the 1965 Act. While the legislature included elected
or appointed officers generally when it revamped the state
retirement system in 1967, it declined to include the term
“constable.” We may not ignore the legislature’s decision to
remove the term. “The omission of the [term] in the revised
statute logically can mean nothing but that the legislature’s
purpose deliberately was to remove” constables from coverage in
the state retirement system. State v. Delmotte, 665 P.2d 1314,
1315 (Utah 1983); see also State v. Nieberger, 2006 UT App 5,
¶ 14, 128 P.3d 1223; 1A Norman J. Singer, Sutherland Statutory
Construction § 22.30 (6th ed. 2002) (A statutory amendment
“indicates that [the legislature] intended to change the original
act by creating a new right or withdrawing an existing one”;
“amendment of an unambiguous statute indicates a purpose to
change the law.”). When the legislature deleted the term, it
manifested its intent to eliminate constables from the definition
of employee, removing them from eligibility for participation in
the Utah state retirement system.5

5 (...continued)
Annuity Association of America rather than the state retirement
system. Moreover, Mr. Sindt’s argument ignores the presumed
purposeful decision of the legislature to remove constables from
the definition of employee after its earlier explicit inclusion.
6 Utah Code section 49-10-5 (Supp. 1967) provides, “[A]ll
members of the Utah public employees’ retirement system, . . .
together with the credit for creditable service rendered up to
the effective date of this act and standing to their credit as of
June 30, 1967, are hereby transferred to membership status with
the same service credit in the Utah state retirement system
created by this act.”
7 No. 20050922
¶14 Still, despite this unambiguous action on the part of
the legislature, if Mr. Sindt was a member of the state
retirement system under the 1965 Act, then he remained a
participant under the 1967 Act because the legislature
transferred all members under the 1965 Act into the new system.6
Accordingly, Mr. Sindt’s eligibility to be a member of this new
system is dependent upon his transfer from the prior system. If
Mr. Sindt can prove that he was paid compensation as defined by
the 1965 Act and was therefore eligible for participation in the
state retirement system in January 1967, then he will also be a
participant of the system under the 1967 Act.
¶15 Mr. Sindt’s initial tenure as a constable lasted from
1967 to 1974. When Mr. Sindt reentered service with the County
in 1979, he was eligible for participation in the state
retirement system only if he came within the definition of
employee under the then-current version of the act. In 1979, the
Utah State Retirement Act, Utah Code Ann. §§ 49-10-1 to -61 (1970
& Supp. 1979), had been modified in some respects, but not to Mr.
Sindt’s benefit. The definition of employee was identical to the
definition in the 1967 Act when the legislature purposefully
eliminated constables from inclusion in the state retirement
system. Compare id. § 49-10-6(6) (Supp. 1967), with id. § 49-10-
6(6) (1970). Likewise, compensation “by an employer to an
employee” was still required. Id. § 49-10-6(6), (20) (1970).
Thus, when Mr. Sindt became a constable in 1979, he had to fall
within the definition of employee at that time. He did not.
While covered employees working at the same time as Mr. Sindt
could enter and leave their employment with the state and retain
membership in the state retirement system either through
redepositing funds removed from the state account or leaving
funds in the state account, membership could be continued only
upon reentry into state employment if reemployment was with “an
employer for services covered by this act.” Id. § 49-10-24
(1970). As noted above, after 1967, constable services were no

No. 20050922 8
longer within the realm of services covered by the Act. This
same analysis holds true for Mr. Sindt’s reentry into service
with the County in July 1991 as an appointed constable. See id.
§ 49-2-103(1)(a), (3)(a) (1989 & Supp. 1991).
¶16 Accordingly, Mr. Sindt was eligible to be a participant
in the state retirement system only from January 1967, when he
became a County constable, through 1974, when he failed to be
reelected. He is not eligible during any other time period.
Furthermore, his eligibility rests on his ability to prove that
payments were made by the County to him as an individual between
1967 and 1974.
¶17 Finally, if Mr. Sindt is successful in proving that he
is entitled to participation in the state retirement system
because he meets the definition of employee under the 1965 Act,
we leave to the Board the determination of whether the County or
Mr. Sindt or both are required to make up past contributions to
the state retirement system that were not made during the years
1967 to 1974.
CONCLUSION
¶18 We hold that constables were eligible for participation
in the state retirement system under the 1965 Act if they
received “compensation,” as defined in the Act. However,
constables are no longer included within the definition of
employee under the post-1965 acts. Accordingly, unless a
constable was transferred into the new system when the statutory
scheme was reorganized in 1967, he or she is not eligible to
participate in the state retirement system. Because the record
does not provide information as to whether the County paid Mr.
Sindt individually or if it instead paid a business entity, we
cannot determine whether Mr. Sindt is entitled to participation
in the state retirement system from 1967 to 1974. Thus, we
reverse the Board’s grant of summary judgment and remand the case
to determine whether Mr. Sindt is entitled to benefits for his
service as a County constable between 1967 and 1974.
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¶19 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.