Original Proceeding in this Court
Heather S. White, Robert T. Denny, and Rachel E. Phillips,
Attorneys for Petitioner Marjean Searcy Nielsen
D. Reyes and Brent A. Burnett, Attorneys for Petitioner
University of Utah
B. Hansen and Erin G. Christensen, Attorneys for Respondent
Kate Appleby authored this Opinion, in which Judges Ryan M.
Harris and Diana Hagen concurred.
Marjean Searcy Nielsen and the University of Utah
(University) seek judicial review of the Utah State
Retirement Board's (Board) final order, arguing that the
Board erred in determining that Nielsen was not entitled to
continue participating in Utah Retirement Systems' Public
Employee Noncontributory Retirement System (URS Plan). We
conclude the Board's determination was based on an
erroneous interpretation and application of the law, and
Nielsen has been substantially prejudiced by its error. We
therefore set aside the Board's order and instruct it to
hold further proceedings consistent with this opinion.
In 2013, Nielsen had accrued 20.65 years of service credit in
the URS Plan working with various participating employers.
That year, she began working for the University in a position
statutorily classified to participate in a non-URS retirement
system (Alternate Plan). Because she had service credit in
the URS Plan before the date of her University employment,
she was entitled to a "one-time irrevocable election to
continue participation" in the URS Plan. Utah Code Ann.
§ 49-13-204(2)(c) (LexisNexis Supp. 2018).
Nielsen claims she accepted her position at the University in
part because she knew she could continue participating in the
URS Plan. Before beginning her new employment, Nielsen claims
she telephoned the Utah State Retirement Office (URS) and
asked if she needed to take any steps to maintain active
participation in the URS Plan. According to Nielsen, a URS
representative told her she was "good to go" and
did not need to take any affirmative steps. Nielsen does not
remember the name of the URS representative, and URS has no
record of any such conversation. In any event, upon
commencing her employment with the University, Nielsen did
not affirmatively choose to participate in the Alternate Plan
and-perhaps in reliance on her phone call with URS-she did
not take any steps to continue participating in the URS Plan.
Accordingly, the University enrolled her by default in the
Nielsen participated in the Alternate Plan for about two
years, but claims not to have noticed she was not enrolled in
the URS Plan until January 2015. Because Nielsen would lose a
significant amount of retirement benefits by not
participating in the URS Plan, she and the University
discussed how she might re-enroll. An email dated January 28,
2015, from a University staff member said, "I have told
[Nielsen] that she needs to resign from her position at the
[University] then we will re-hire her in the same position
after 32 days. At that time, she can enroll in the [URS
In February 2015, Nielsen resigned from her University
position. Thirty-six days later, the University rehired
Nielsen to the same position from which she resigned. When
she was rehired, Nielsen "signed an Irrevocable
Retirement Plan Election to request participation [in the URS
Plan]." The University certified to URS that, beginning
the day Nielsen was rehired, she was eligible to participate
in the URS Plan. About seven months after Nielsen was
rehired, URS notified her she was not entitled to participate
in the URS Plan. It explained that, because she made an
"irrevocable election . . . to participate in [the
Alternate Plan]" in 2013, she was not eligible to
participate in the URS Plan while employed at the University.
Nielsen appealed URS's decision to the Board's
executive director. The executive director upheld URS's
decision, explaining that when Nielsen "began employment
with the University of Utah, . . . [she] had a one time
opportunity under statute to elect to continue with [the URS
Plan] but did not do so." His letter to Nielsen added,
"Unfortunately, I do not have the discretion to
contradict the statute and allow you another election to
rejoin [the URS Plan]."
Nielsen filed a "Request for Board Action," and the
University was joined as a third-party respondent. Nielsen,
the University, and URS each filed a motion for summary
judgment. Nielsen and the University argued that, under the
plain language of Utah Code section 49-13-204(2)(c), she was
entitled to continue participation in the URS Plan. Nielsen
presented evidence showing she would "lose over ...