WALKER, Justice:

Since 1996, the West Virginia Division of Natural Resources (DNR) has paid Natural Resources Police Officers a “subsistence allowance” to cover their phone service, dry cleaning, and meals. Beginning in 1997, DNR reported those payments to the Consolidated Public Retirement Board (the Board) as part of the officers’ “compensation,” a key component in the calculation of their retirement annuities under the Public Employees Retirement System (PERS). In 2014, the Board determined that the subsistence allowance is not “compensation,” for purposes of PERS, and that the error had impacted the calculation of officers’ and DNR’s contributions to PERS as well as the amount of benefits paid to retired officers. The Board selected several means to correct the error, including recapturing benefit overpayments made to retired officers.

Respondents—current and retired officers and their widowers and widows— unsuccessfully challenged the benefit determination to the Board. But they prevailed before the circuit court, which reversed the Board’s ruling. Now, we reverse in part and affirm in part the circuit court’s order. We find, contrary to the circuit court, that the subsistence allowance is not “compensation,” under PERS. But, like the circuit court, we find that the Board may not recover the excess retirement benefits already paid due to the erroneous treatment of the subsistence allowance as PERS compensation. I. FACTUAL AND PROCEDURAL HISTORY Respondents are active or retired law enforcement officers employed by DNR. ^[1] West Virginia Code § 20-7-1c (2017) sets officers’ minimum annual salary (base pay), keyed to years of service and rank. Under § 20-7-1(i) (2015), 2 officers receive a “subsistence allowance” of $130 each month, in addition to their base pay. The subsistence allowance is for officers’ “required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment[.]” 3 DNR also pays an officer’s actual expenses incurred working outside that area. ^[4] The amount of the subsistence allowance does not vary, and it is paid to an officer when he is working or on paid annual, military, or sick leave. Officers on unpaid leave do not receive the allowance. ^[5] The Legislature enacted the subsistence allowance in its near-current form in 1996. 6 Beginning in March 1997, DNR treated the subsistence allowance as part of officers’ “compensation” under PERS. ^[7] Section 5-10-2(8) of PERS defines “compensation” as:

the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer. . . . Any lump sum or other payments paid to members that do not constitute regular salary or wage payments are not considered compensation for the purpose of withholding contributions for the system or for the purpose of calculating a member’s final average salary. These payments include, but are not limited to, attendance or performance bonuses, one-time flat fee or lump sum payments, payments paid as a result of excess budget, or employee recognition payments. The board shall have final power to decide whether the payments shall be considered compensation for purposes of this article[.][8]

For clarity, we refer to such remuneration as “pensionable compensation.”

DNR reports employees’ gross salary to the Board, along with its own and its employees’ corresponding contributions to PERS. For officers, that gross salary amount included the subsistence allowance. ^[9] By including the allowance as part of officers’ gross salary reported to the Board, DNR increased the officers’ pensionable compensation. Increased pensionable compensation means increased inputs to, and outputs from, PERS. As for inputs, the amount of an employee’s total, annual pensionable compensation dictates the amount of money the officers and DNR must contribute to PERS. ^[10] And as for outputs, PERS retirement annuities are calculated based on, in part, an employee’s “final average salary,” a figure derived from an employee’s annual, pensionable compensation. ^[11] The Board offers training to employers on what is and what is not pensionable compensation, and will advise an employer whether a particular payment is subject to PERS upon request. ^[12] DNR did not ask the Board whether the allowance was pensionable compensation.

In 2014, officer Jon Cogar asked the Board to estimate his PERS retirement benefits. The Board audited Mr. Cogar’s file and noticed “atypical” salary payments. The Board contacted DNR in March 2014 and asked for a report of any special payments made to Mr. Cogar since June 2006, from which retirement contributions had been withheld. DNR sent the requested report, in which it broke down those special payments by DNR payment code, including “135 Subsistence.” The report showed that Mr. Cogar had received a $65.00 subsistence allowance, bimonthly, from June 2006 until March 2014. At the Board’s request, DNR prepared a “PERS Inflated Salary Classification Form,” to permit the Board to determine whether the allowance met the criteria for “compensation” under PERS.

On April 23, 2014, the Board notified DNR that because the subsistence allowance had not been paid for personal services rendered, it was not “compensation” under PERS. The Board directed DNR to stop withholding retirement contributions from the subsistence allowance. Then, on April 29, 2014, the Board notified Mr. Cogar of its determination. In July 2014, DNR advised the Board that it disagreed with that determination. ^[13] Later, the Board informed DNR and Mr. Cogar that it was taking another look at whether the subsistence allowance was, in fact, pensionable. The Board also instructed DNR to “maintain the status quo – i.e., continue treating subsistence payments received by [officers] as compensation and salary for purposes of PERS.”

In October 2015, the Board informed all DNR law enforcement officers— active and retired—that it had finally determined that the subsistence allowance was not pensionable compensation. The Board advised retired officers, including Mr. Cogar, that they were entitled to be paid back the excess contributions they had made to PERS due to the erroneous treatment of the allowance as pensionable compensation. The Board also informed the retired officers that if further inquiry showed that the allowance had been included in their “final average salary,” 14 then the Board had to (1) recover any benefits overpaid to the retired officers, either by lump sum, lifetime reduction of benefits, or reduction of benefits over a set period of time, offset by any excess contributions they may have made to PERS 15 and (2) adjust their retirement annuities prospectively to the correct monthly annuity amount. 16

Respondents filed a joint administrative appeal and request for declaratory relief 17 with the Board, arguing, among other things, that the allowance is compensation for services rendered—meaning it is pensionable compensation—and that the Board’s determination violated their vested pension rights. The hearing examiner issued a recommended decision finding that under the plain language of the pertinent statutes, the allowance was not pensionable compensation and that both the 2011 and 2015 versions of the PERS error “correction statute,” West Virginia Code § 5-10-44, 18 plus the Board’s fiduciary duties, permitted it to recover benefit overpayments made to retired Respondents. The Board adopted the hearing examiner’s recommended order in December 2017, 19 and Respondents appealed to circuit court. ^[20]

By order entered March 19, 2020, the circuit court reversed the Board’s final order. First, the court found that the allowance was compensation because Respondents received those payments so long as they were not on unpaid leave. From that, the circuit court inferred that the payments were, in fact, “for services rendered,” and so were pensionable compensation. The court was also persuaded by Respondents’ argument that the list of exceptions in § 5-10-2(8) did not include the allowance, meaning that the Legislature hadn’t expressed an intention to keep the allowance out of PERS compensation. The court rejected the Board’s plain-language arguments and its position that its interpretation of “compensation” in this case should be afforded deference, as it is the agency charged with implementing PERS.

The court also found that DNR’s inclusion of the allowance in compensation was not an “employer error,” correctable under § 5-10-44 (2011) because (1) there was no error to begin with, and (2) DNR’s treatment of the allowance as pensionable compensation was “deliberate,” so it was excluded from the definition of “employer error.” 21 And, the court found that the Board had not acted to correct the error in a timely fashion because DNR had treated the subsistence allowance as a form of PERS compensation since 1997, and the Board should have discovered at some point earlier than 2014 that the payment was not pensionable compensation. Finally, the court found that the Board’s attempt to recoup overpayments from Respondents violated their vested property rights in their pensions. ^[22] The Board appeals.

II. STANDARD OF REVIEW

Our standard of review in this administrative case is set forth in Syllabus Points 1 and 2 of Muscatell v. Cline:

1. On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code § 29A–5–4(a) and reviews questions of law presented de novo; findings of fact by the administrative

21 W. Va. Code § 5-10-2(12) (2016).

officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.[23]

2. In cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.[24]

The parties do not dispute the facts giving rise to this appeal, so we are presented with questions of law, which we review de novo. ^[25]

III. ANALYSIS

The Board challenges the circuit court’s order on three grounds. First, the Board contends that the subsistence allowance authorized by West Virginia Code § 20-7- 1(i) is not “compensation,” as that term is defined for purposes of PERS in § 5-10-2(8), and contrary to the circuit court’s reading of those statutes. Second, the Board contests the circuit court’s finding that neither the 2005, 2011, nor 2015 version of § 5-10-44, the “correction statute,” authorizes it to recoup benefits overpayments to retirants to correct the inclusion of the subsistence allowance in those retirants’ pensionable compensation. Third, the Board argues that the circuit court misapprehended this Court’s holding in Booth v. Sims, and that that case is not applicable to the Board’s action as plan administrator to enforce the terms of PERS. We address these arguments in order. ^[26]

A. Subsistence Allowance as “Compensation” under PERS

The Legislature created the subsistence allowance in West Virginia Code § 20-7-1(i). Under that statute, “[n]atural resources police officers shall receive, in addition to their base pay salary, a minimum monthly subsistence allowance for their required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment in the amount of $130 each month.” 27 In West Virginia Code § 5-10-2(8), the Legislature defined pensionable compensation as “the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer.” These definitions matter because under the terms of PERS, if a payment from a participating public employer to a public employee fits the definition of “compensation” under PERS, then the payment is treated as part of the employee’s pensionable compensation, increasing contributions to PERS, the employee’s final average salary, and the retirement annuity.

When a statute plainly expresses the intent of the Legislature, we do not construe or interpret it. ^[28] We apply it. ^[29] After comparing §§ 5-10-2(8) and § 20-7-1(i), we conclude that those statutes clearly express the Legislature’s intent that the “subsistence allowance” is not “compensation,” as defined in § 5-10-2(8), and so is not subject to PERS.

The subsistence allowance mandated by § 20-7-1(i) is a bimonthly payment of $65 paid by DNR “for [officers’] required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment.” Section 20-7-1(i) provides that the allowance is to be paid to officers “in addition to [officers’] base pay salary,” an amount specified in § 20-7-1c. 30 “‘In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meanings.’ Syl. pt. ^[1], Tug Valley Recovery Center v.

Mingo County Commission, W.Va., 164 W.Va. 94, 261 S.E.2d 165 (1979).” 31 The common meaning of “salary” is “[a]n agreed compensation for services[.]” 32 This Court “must presume that a legislature says in a statute what it means and means in a statute what it says there.” 33 So, we must presume that the Legislature meant to distinguish the allowance from the officers’ salary, i.e., their compensation for services, when it said that the allowance is to be paid to officers “in addition to [their] base pay salary[.]” 34 The Legislature clearly expressed in § 20-7-1(i) that the allowance is not paid to officers in exchange for their

Syl. Pt. ^[1], Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d 31 905 (1980).

services because it is money paid to officers in addition to their salary. So, the allowance cannot be “compensation,” as that term is defined in § 5-10-2(8): “the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer.” 35

The circuit court construed §§ 5-10-2(8) and 20-7-1(i)—despite those statutes’ clear language—and we pause to consider the reasoning behind its conclusion that the allowance is, in fact, compensation for services rendered by officers. ^[36] The circuit court reasoned that the subsistence allowance did not fit within the general definition of payments made to public employees, but which must be excluded from compensation. But, this construction ignores important parts of the exclusionary language in § 5-10-2(8), which provides that:

Any lump sum or other payments paid to members that do not constitute regular salary or wage payments are not considered compensation for the purpose of withholding contributions for the system or for the purpose of calculating a member’s final average salary. These payments include, but are not limited to, attendance or performance bonuses, one- time flat fee or lump sum payments, payments paid as a result of excess budget, or employee recognition payments.[37]

The first sentence quoted above states that a “lump sum or other payment” that is not also a “regular salary or wage payment” is not pensionable compensation. ^[38] The second sentence of § 5-10-2(8) lists a series of lump sum payments excluded from compensation, under PERS. But, the Legislature made plain that those lump sum payments are not the only payments excluded from pensionable compensation when it stated that excluded payments “include, but are not limited to, attendance or performance bonuses, one-time flat fee or lump sum payments, payments paid as a result of excess budget, or employee recognition payments.” 39 We have observed that “the phrase, ‘include, but not be limited to[,]’ . . . indicates that the examples given are demonstrative, not exclusive.” 40 37 W. Va. Code § 5-10-2(8) (emphasis added).

So, the words “include, but are not limited to” in § 5-10-2(8) indicate that the payments listed there are merely examples of payments excluded from the definition of “compensation” under PERS.

Section 5-10-2(8) plainly states that a payment may be excluded from pensionable compensation if the payment is not a “regular salary or wage payment.” The subsistence allowance is neither of those, and the Legislature said as much when it (1) described the allowance as a payment to DNR officers “for their required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment;” and (2) distinguished it from officers’ base pay salary. We agree with the reasoning of an Indiana court faced with a similar issue, which found that a clothing allowance was not remuneration subject to a pension plan: “Admittedly, the clothing allowance is a form of compensation in that it does relieve the recipient of the necessity of making clothing expenditures from his usual remuneration. But the annual cash payment is supplemental to, and not an integral part of, the employee’s regular salary.” 41 Finally, the circuit court applied two rules of statutory construction to conclude that the allowance is pensionable compensation. Those rules are ejusdum generis and noscitur a sociis. Under the first rule, “where general words follow the enumeration of particular classes of persons or things, the general words, under the rule of construction known as ejusdem generis, will be construed as applicable only to persons or things of the same general nature or class as those enumerated[.]” 42 And under the second, “the meaning of a general word is or may be known from the meaning of accompanying specific words.” 43

These rules do not support the circuit court’s conclusion for two reasons. First, ejusdum generis applies only to general words that follow a list of classes or things. When presented in that order, “general words do not amplify particular terms preceding them but are themselves restricted and explained by the particular terms.” 44 Here, the general words, “other payment,” precede the list of lump sum payments, and so are neither restricted nor explained by the list that follows. Second, “[t]he maxim noscitur a sociis is only a guide to legislative intent, though, and so, like any rule of construction, does not apply absent ambiguity, or to thwart legislative intent, or to make general words meaningless.” 45 As stated above, the Legislature’s intent for the subsistence allowance is plain: to pay officers for their required telephone service, etc., rather than for services rendered. ^[46] The doctrines of ejusdum generis and noscitur a sociis are red herrings. In sum, contrary to the circuit court, we find that the subsistence allowance paid to officers under § 20-7-1(i) is not “compensation,” under PERS.

B. Correction of Overpayments

Considering that conclusion, DNR’s inclusion of the allowance in Respondents’ compensation reported to PERS was error. That error resulted in both inflated contributions to PERS by DNR and Respondents and inflated final average salaries. For those Respondents who were paid the allowance after March 1997, and who

45 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:16 (7th ed.) (internal notes omitted).

then retired sometime after that and before November 1, 2015, the error means that they have received erroneously high retirement annuity payments.

The parties agree that, under the terms of PERS, the Board must correct errors, including the erroneous inclusion of the allowance in Respondents’ pensionable compensation. But, they dispute whether the Board may correct the error at issue in this case which has resulted in, among other things, overpayments of benefits to certain Respondents. Resolution of that disagreement hinges on West Virginia Code § 5-10-44, the PERS error correction statute.

1. West Virginia Code § 5-10-44

Section 5-10-44 was enacted in 1961, amended in 2005 and 2011, and, finally, rewritten in 2015. The facts of this case span all four iterations of the statute: the error in 1997 (1961 version), the Board’s realization of the error in 2014 (2011 version), and the Board’s determination of the error and remedies in October 2015 (2015 version). According to the circuit court, the 2011 version of the error correction statute applies to these cases because that was the error correction statute in effect when CPRB “discovered” the erroneous inclusion of the allowance as pensionable compensation. But, according to the Board, § 5-10-44, effective July 1, 2015, applies here because the statute is remedial and so may be applied to correct DNR’s erroneous determination that the allowance is pensionable compensation, made before the effective date of the 2015 amendment. This distinction matters when one compares the 2011 and 2015 versions of § 5-10-44. Before 2015, the statute did not speak to overpayments. But in 2015, the Legislature added new language to § 5-10-44 that expressly requires members to return benefit overpayments to PERS, subject to certain exceptions. ^[47] For the reasons discussed below, we find that § 5- 10-44 (2015) is a remedial statute, so that its terms may be applied to correct an error in PERS occurring before the amended statute’s effective date, July 1, 2015.

We have described PERS as both a statute and a trust. “The ‘body corporate’ of [PERS] constitutes a trust. The terms of the trust contract are spelled out in the PERS statute. W.Va. Code § 5–10–1 et seq.” 48 The Board manages and administers PERS, 49 and the Trustees have “the highest fiduciary duty to maintain the terms of the trust, as spelled out in the [PERS] statute.” 50 “The PERS Board, as trustee of retirement funds, must dispose of them according to the law. The board has a fiduciary duty to protect the fund and the interests of all beneficiaries thereof, and it must exercise due care, diligence, and skill in administering the trust.” 51

To that end, the Legislature included in PERS the error correction statute, § 5-10-44, requiring the Board to correct errors that result in a person receiving more or less than he is entitled to under PERS. ^[52] As enacted in 1961, § 5-10-44 provided that:

Should any change or error in the records of any participating public employer or the retirement system result in any person receiving from the system more or less than he would have been entitled to receive had the records been correct, the board of trustees shall correct such error, and as far as is practicable shall adjust the payment of the benefit in such manner that the actuarial equivalent of the benefit to which such person was correctly entitled shall be paid.[53]

The 2005 amendments to the statute were modest. 54 The Legislature maintained in near-identical form the text of the original statute, but added a provision relating specifically to underpayments to PERS. ^[55] In 2011, the Legislature again preserved the original statute’s general charge that the Board correct system errors. 56 It refined the “payment adjustment” portion of the earlier versions of the statute, specifying that when “correction of the error occurs after the effective retirement date of a retirant, and as far as is practicable, the board shall adjust the payment of the benefit in a manner that the actuarial equivalent of the benefit to which the retirant was correctly entitled shall be paid.” 57 The Legislature also expanded that portion of § 5-10-44 controlling correction of underpayments to PERS and added language directing the Board how to handle mistaken or excess contributions to the system. ^[58]

The Legislature amended § 5-10-44, again, in 2015. 59 It restated the general error correction provision, so that it now directs that,

General rule: Upon learning of any errors, the board shall correct errors in the retirement system in a timely manner whether an individual, entity or board was at fault for the error with the intent of placing the affected individual, entity and retirement board in the position each would have been in had the error not occurred.

56 150 W. Va. Acts 2011.

In amending § 5-10-44 in 2015, the Legislature also specified in new subsection (e), “Overpayments from the retirement system,” that “[i]f any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred,” then (1) the Board must “prospectively adjust the payment of the benefit to the correct amount,” where the “correction of the error occurs after annuity payments to a retirant or beneficiary have commenced,” and (2) “the member, retirant, beneficiary, entity or other person who received the overpayment from the retirement system shall repay the amount of any overpayment to the retirement system[.]” 60 The Board “shall correct the error in a timely manner.” 61 In full, subsection (e) of § 5-10-44 states that:

Overpayments from the retirement system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred, the board shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity or other person who received the overpayment from the retirement system shall repay the amount of any overpayment to the retirement system in any manner permitted by the board. Interest shall not accumulate on any corrective payment made to the retirement system pursuant to this subsection.

60 W. Va. Code § 5-10-44(e) (2015) (emphasis added).

These amendments are variations on the central theme of the original, 1961 statute: when correcting an error in PERS, the Board’s aim is to turn back the clock and so return the “the affected individual, entity and retirement board” 62 to the position each would have occupied, but for the system error. ^[63]

“A statute is presumed to be prospective in its operation unless expressly made retrospective[.]” 64 “A statute that diminishes substantive rights or augments substantive liabilities should not be applied retroactively to events completed before the effective date of the statute (or the date of enactment if no separate effective date is stated) unless the statute provides explicitly for retroactive application.” 65 We have held that

“A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage can it be considered to be retroactive in application.” Syl. pt. 3, Sizemore v. State Workmen’s Comp. Comm’r, 159 W.Va. 100, 219 S.E.2d 912 (1975).[66]

But, “[s]tatutes which do not create new rights or take away vested ones are deemed to be remedial and are not within the strict application of the rule of presumption against retroactivity.” 67 “A remedial statute improves or facilitates remedies already existing for the enforcement or rights of redress of wrongs,” 68 and may “include statutes intended for the correction of defects, mistakes, and omissions in the civil institutions and the administration of the state.” 69

We concur with the Board that the Legislature’s 2015 amendments to § 5- 10-44 are remedial 70 and can be applied to correct errors in PERS occurring before the amended statute’s effective date of July 1, 2015. The 2015 amendments did not create or diminish substantive rights under PERS; instead, they improved the Board’s ability to remedy errors in the administration of the trust contract set forth in PERS. 71 In the context presented here—an error that has, among other things, resulted in a person “receiving from the system more than he would have been entitled to receive had the error not occurred” 72— the amendment provides for the return of those overpayments to PERS, meaning that the Board may recover sums distributed in the past due to a system error. Importantly, the Board may pursue this remedy only when “a retirant, beneficiary, entity or other individual receiv[es] from the system more than he would have been entitled to receive had the error not occurred,” that is, when the recipient of the funds did not have a right under the terms of PERS to receive them. ^[73] The statute does not take away a vested right. Rather, it enables

71 See S.B. 342, 85th Leg., Reg. Sess. (W. Va. 2015) (titled, in part, “clarifying scope, application and requirements for error correction by CPRB”). 72 W. Va. Code § 5-10-44(e).

the Board to ensure the integrity of PERS and protect the interests of all of its beneficiaries. ^[74] For those reasons, we now hold that West Virginia Code § 5-10-44 (eff.

July 1, 2015) is a remedial statute that may be applied to correct an error in the Public Employees Retirement System, found at West Virginia Code §§ 5-10-1 to 55, that occurred before July 1, 2015.

2. Timely Correction of Overpayments

The Legislature imposed a new obligation upon the Board in 2015: timely action. ^[75] Under the general error correction rule stated in subsection (a) of § 5-10-44, “[u]pon learning of any errors, the board shall correct errors in the retirement system in a timely manner[.]” In subsection (e), “Overpayments from the retirement system,” the Legislature stated the “timeliness” requirement differently: “If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred, the board shall correct the error in a timely manner.” 76 In general subsection (a), the Legislature directed that timeliness be measured from the point at which the Board learns of an error. ^[77] Subsection (e) does not contain similar direction. Instead, it requires the Board to correct an error resulting in overpayment in a timely manner, period. ^[78] Therefore, we now hold that under West Virginia Code § 5-10-44(e) (eff. July 1, 2015), the Consolidated Public Retirement Board shall correct in a timely manner any error that results in any member, retirant, beneficiary, entity or other individual receiving from the Public Employees Retirement System, West Virginia Code §§ 5-10-1 to 55, more than he or she would have been entitled to receive had the error not occurred.

So, the Board’s ability to correct overpayments made to Respondents depends on whether the Board’s correction effort is timely under § 5-10-44(e). 79 Like the circuit court, we find that it is not. We are astonished that the Board did not recognize this error at any time between March 1997 and April 2014. At that time, while preparing a benefit estimate for Mr. Cogar, the Board “audited his file, and noticed several months of atypical salary history,” according to the joint stipulation of facts. But, officers had retired between 1997 and 2014, presenting the Board with opportunities to notice the same atypicality earlier. Even more concerning, the Board offers no explanation why it audited that particular file at that particular time, so we are left to conclude that the Board uncovered the error by happenstance.

The Board contends that it could not have known before 2014 that DNR was including the allowance in officers’ gross salaries because DNR did not report the allowance separate from the officers’ pensionable compensation. That argument falls flat. Under West Virginia Code § 5-10-29(c) (2015), the Board has the authority to tell participating public employers like DNR what “supporting data” they must provide when paying members’ contributions into the system. 80 Similarly, § 5-10-19 obligates employers to file a “detailed statement of all service rendered” by each employee, but, again, “in such

80 W. Va. Code § 5-10-29(c) (2015) (“(c) The officer or officers responsible for making up the payrolls for payroll units of the state government and for each of the other participating public employers shall cause the contributions, provided in subsection (b) of this section, to be deducted from the compensations of each member in the employ of the participating public employer, on each and every payroll, for each and every payroll period, from the date the member enters the retirement system to the date his or her membership terminates. When deducted, each of said amounts shall be paid by the participating public employer to the retirement system; said payments to be made in such manner and form, and in such frequency, and shall be accompanied by such supporting data, as the board of trustees shall from time to time prescribe. . . .”).

form as the board shall from time to time prescribe,” along with “such other information as the board shall require in the operation of the retirement system.” 81

Second, as described in the joint stipulation of facts, the Board offers training to the payroll personnel of participating employers like DNR, “addressing amounts from which PERS contributions must or must not be taken.” So, the Board recognizes that employers’ payroll personnel make foundational decisions about what is and what is not pensionable compensation, and that they need guidance to do so correctly under the terms of PERS. Certainly, the issue here—the erroneous inclusion of the allowance in Respondents’ pensionable compensation—could have been avoided had DNR sought the Board’s guidance in 1997. But, its failure to do so cannot negate the Board’s fiduciary duties to maintain the terms of the trust contract set forth in the PERS statute, dispose of PERS funds according to those terms, and protect the interests of all PERS beneficiaries. ^[82]

The Legislature amended § 5-10-19 in 2021. See 2021 W. Va. Acts 10. The 81 amendment does not change the language quoted above.

In sum, the Board has failed to act in a timely manner to correct system overpayments that resulted from the erroneous treatment of subsistence allowance payments as pensionable compensation. Consequently, the Board may not require Respondents who have received overpayments from PERS due to that error to repay those amounts. ^[83] For the same reason—a lack of timeliness, as that term is found in § 5-10- 44(e)—the Board may not prospectively adjust payments to those retirant- and beneficiary- Respondents to whom annuity payments have already started. ^[84]

IV. CONCLUSION

For the reasons discussed above, we affirm in part and reverse in part the circuit court’s order and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS