STEVE JONES VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0321-17T4
STEVE JONES,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,
Respondent-Respondent.
_______________________________
Submitted 1 October 7, 2019 – Decided October 18, 2019
Before Judges Fasciale and Moynihan.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-86267.
Jacobs & Barbone, PA, attorneys for appellant (Louis
Michael Barbone and Joel S. Juffe, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
1
The parties waived oral argument.
General, of counsel; Thomas R. Hower, Deputy
Attorney General, on the brief).
PER CURIAM
Steve Jones (petitioner) appeals from an August 15, 2017 final agency
decision by the Board of Trustees, Police and Firemen's Retirement System (the
Board). The Board modified an initial determination by an administrative law
judge (ALJ), imposed a partial forfeiture of service and salary, and determined
that petitioner was ineligible for accidental disability retirement benefits. We
affirm.
Petitioner served as a police officer in the City of Millville (the City) from
1988 through 2011. During 2005 to 2006, he attended three work-related
conferences, where, per Millville Police Department (MPD) policy, he was
entitled to meal expense reimbursement. Upon return, he submitted store-
bought expense reimbursement paperwork rather than the requisite actual
restaurant receipts. An internal investigation into the reimbursement requests
was conducted, and investigators interviewed petitioner. On March 18, 2008,
the MPD served petitioner with a Preliminary Notice of Disciplinary Action (the
2008 PNDA), which charged him with conduct unbecoming a police officer,
conduct unbecoming a public employee, and violations of MPD rules and
policies, based on the expense reimbursement submissions.
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On July 25, 2011, the MPD served petitioner with another PNDA (the
2011 PNDA), which alleged multiple administrative charges and rule violations
relating to false statements petitioner supposedly made in 2010. After a hearing,
an ALJ found that petitioner committed conduct unbecoming a police officer
under N.J.A.C. 4A:2-2.3(a)(6), and violated other department rules and
regulations for untruthfulness. The petitioner was suspended for three months,
he appealed, and thereafter, in an unpublished opinion, we affirmed. Jones v.
City of Millville Police Dep't, No. A-000093-10 (App. Div. Nov. 15, 2011).
On December 27, 2011, petitioner applied for accidental disability
retirement benefits, due to work-related injuries. On August 22, 2012, the Board
analyzed the eleven factors for pension forfeiture set forth in Uricoli v. Board
of Trustees, Police & Firemen's Retirement System, 91 N.J. 62, 77-78 (1982),
and codified in N.J.S.A. 43:1-3, and it denied petitioner's request. The Board
ordered the forfeiture of petitioner's entire service and salary credit , and it
disqualified him from applying for accidental disability retirement benefits. The
Board considered the 2011 PNDA and explained that the PNDA raised questions
about whether petitioner's service as a police officer was dishonorable.
The City and petitioner entered into a Settlement Agreement and General
Release (the Agreement) on June 21, 2012, under which petitioner resigned his
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employment effective December 1, 2011, settled his Civil Complaint against the
City, and agreed to waive any right to return to work for the City in the future.
Petitioner appealed the Board's determination, and the matter was
transmitted to the Office of Administrative Law (OAL) as a contested case. On
May 10, 2017, an ALJ (the ALJ) recommended no forfeiture of petitioner's
salary and service credit. The ALJ also found that petitioner could apply for
accidental disability retirement benefits.
In its final administrative decision, the Board rejected the ALJ's
conclusion that no forfeiture was warranted, and it repudiated the ALJ's
weighing of Uricoli factors seven, eight, and nine. Instead, the Board adopted
a partial forfeiture of service and salary from November 28, 2007 (when
petitioner was first untruthful to investigators) through June 30, 2011 (the last
date of petitioner's pension contributions), in accordance with N.J.S.A. 43:1 -
3(b) and N.J.A.C. 17:1-6.1(c). The Board also determined that petitioner was
ineligible to apply for accidental disability retirement benefits because, by
agreeing to waive any right to future employment, petitioner could not comply
with N.J.S.A. 43:16A-8(2), which is a mandatory return-to-work provision if the
petitioner's disability diminishes.
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Petitioner argues three points on appeal:
POINT I
THE ESTABLISHED REASONABLE CONDUCT OF
[PETITIONER] CONCERNING HIS MEAL
REIMBURSEMENT RECEIPTS (1) DID NOT MEET
THE DEFINITION OF "MORAL TURPITUDE"; (2)
WAS OTHERWISE NOT SUBSTANTIAL OR
GRAVE AND WAS ISOLATED; [AND] (3) . . . DID
NOT RELATE TO HIS PUBLIC DUTY AS A POLICE
OFFICER.
POINT II
THE BOARD ERRED IN CONSIDERING THE 2011
DISCIPLINARY CHARGES AGAINST
[PETITIONER] THAT WERE EXPLICITLY
RENDERED WITHDRAWN AND MOOT IN THE
BLACK LETTER OF A SETTLEMENT
AGREEMENT BETWEEN [PETITIONER] AND
[THE CITY].
POINT III
THE BOARD ERRED IN DETERMINING
[PETITIONER'S] APPLICATION TO RECEIVE
ACCIDENTAL DISABILITY RETIREMENT
BENEFITS IS UNWORKABLE AGAINST THE
STATUTORY FRAMEWORK BECAUSE
CREDIBLE EVIDENCE SHOWS [PETITIONER'S]
APPLICATION WOULD NOT BE AFFECTED BY
THE SETTLEMENT; THUS, EQUITABLE
ESTOPPEL APPLIES.
Our review of the Board's decision is very limited. Caminiti v. Bd. of
Trs., Police & Firemen's Ret. Sys., 394 N.J. Super. 478, 480 (App. Div. 2007).
Generally, we may overturn the decision if it is unsupported by sufficient
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credible evidence in the record, ibid., but such an inquiry is unnecessary here
because the facts are undisputed. We are not bound by an agency's interpretation
of a statute or a strictly legal issue; we review such questions de novo. See
Ardan v. Bd. of Review, 231 N.J. 589, 604 (2018); see also Mount v. Bd. of Trs.
Police & Firemen's Ret. Sys., 233 N.J. 402, 418-19 (2018). Ordinarily we defer
to an agency's interpretation of a statute unless it is "plainly unreasonable,"
contrary to the statutory language, or "subversive of the Legislature's intent."
N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997).
I.
Public pensions for members of Police and Firemen's Retirement System
(PFRS) are "expressly conditioned upon the rendering of honorable service[.]"
N.J.S.A. 43:1-3(a). Our Supreme Court has held that "a balancing approach is
required in order to determine whether forfeiture is justified under all of the
circumstances." Uricoli, 91 N.J. at 77. Uricoli's eleven-factor flexible test
includes:
(1) the employee's length of service; (2) the basis for
retirement, i.e., age, service, disability, etc.; (3) the
extent to which the employee's pension has vested; (4)
the duties of the particular employment; (5) the
employee's public employment history and record; (6)
the employee's other public employment and service;
(7) the nature of the misconduct or crime, including the
gravity or substantiality of the offense, whether it was
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a single or multiple offense and whether it was
continuing or isolated; (8) the relationship between the
misconduct and the employee's public duties; (9) the
quality of moral turpitude or the degree of guilt and
culpability, including the employee's motives and
reasons, personal gain, and the like; (10) the
availability and adequacy of other penal sanctions; and
(11) other personal circumstances relating to the
employee bearing upon the justness of forfeiture.
[Id. at 78.]
Forfeiture may be total or partial⸺if partial, benefits are generally
"calculated as if the accrual of pension rights terminated as of the date the
misconduct first occurred[.]" N.J.S.A. 43:1-3(d). If the resulting pension or
forfeiture would be "excessive," then the amount should be modified to "reflect[]
the nature and extent of the misconduct and the years of honorable service."
Ibid.; see also N.J.A.C. 17:1-6.1(c).
Here, both the Board and the ALJ analyzed all eleven factors. Factor
seven states, "the nature of the misconduct or crime, including the gravity or
substantiality of the offense, whether it was a single or multiple offense and
whether it was continuing or isolated[.]" Uricoli, 91 N.J. at 78. And factor eight
states, "the relationship between the misconduct and the employee's public
duties[.]" Ibid. The ALJ wrote that, "although untruthful, . . . petitioner's
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misconduct was not substantial or grave [and] was not continuing in nature, but
isolated to the internal investigation."
But the Board found that petitioner had a history of being untruthful
beginning November 28, 2007⸺regarding the receipts from 2005 and
2006⸻and continuing to 2011; thus, it was not "isolated," but rather substantial
and ongoing. As to factor eight, petitioner argues that the meal reimbursement
receipts "had absolutely nothing to do with [his] duties as a police officer."
However, the Board determined that there was a direct relationship between the
misconduct and petitioner's police duties because he repeatedly lied about the
receipts and, as an officer, he was held to a high degree of responsibility to
respect and uphold the laws.
Factor nine considers "the quality of moral turpitude or the degree of guilt
and culpability, including the employee's motives and reasons, personal gain,
and the like[.]" Ibid. "Moral turpitude" is defined as "[c]onduct that is contrary
to justice, honesty, or morality; esp., an act that demonstrates depravity."
Black's Law Dictionary 515 (11th ed. 2019). We previously defined "moral
turpitude" as an "act of baseness, vileness, or depravity in the private and social
duties which a man owes to his fellow men, to society in general, contrary to the
accepted and customary rule of right and duty between man and man[.]" State
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Bd. of Med. Exam'rs v. Weiner, 68 N.J. Super. 468, 483 (App. Div. 1961)
(internal citations and quotation marks omitted). We later stated that,
"[g]uidelines for a determination with respect to moral turpitude, after essential
findings of fact, may be found in our opinion in [Weiner] and the several cases
and other authorities cited therein." Gauli v. Bd. of Trs., Police & Firemen's
Ret. Sys., 143 N.J. Super. 480, 483 (App. Div. 1976). We added that, "[p]erhaps
its real lesson is to be found in its acknowledgment of 'the elasticity of the phrase
and its necessarily adaptive character,' and in its suggestion that its application
be 'reflective at all times of the common moral sense prevailing throughout the
community.'" Ibid. (quoting Weiner, 68 N.J. Super. at 484).
Here, the Board disagreed with the ALJ, who adopted the Weiner
definition of moral turpitude. The ALJ determined that petitioner's conduct
regarding the meal reimbursement receipts did not rise to the level of being
baseless, vile, or depraved. But the Board, in its discretion, concluded that
petitioner lied for personal gain and that his degrees of responsibility and
culpability were high. Thus, the Board relinquished petitioner's pension from
the date that he was first untruthful. The Board explained that petitioner
received a three-month suspension for the 2005 and 2006 untruthful incidents,
and it noted his record of progressive discipline.
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Pensions are viewed "primarily as deferred compensation, which should
not be completely forfeited except in the most egregious cases." Uricoli, 91 N.J.
at 80-81. The Board argues that petitioner's reliance on total forfeiture cases, is
"unavailing," as this case involves partial forfeiture. We agree and conclude
that here, the Board properly analyzed the eleven factors to find that partial
forfeiture of petitioner's pension was warranted.
II.
N.J.S.A. 43:1-3(b) states:
The board of trustees of any State or locally-
administered pension fund or retirement system created
under the laws of this State is authorized to order the
forfeiture of all or part of the earned service credit or
pension or retirement benefit of any member of the fund
or system for misconduct occurring during the
member's public service which renders the member's
service or part thereof dishonorable and to implement
any pension forfeiture ordered by a court pursuant to
section 2 of [N.J.S.A. 43:1-3.1].
Here, the Board explained:
The Legislature has empowered the Board to look at all
misconduct, including charges like the 2011 PNDA.
Even when civil or criminal charges or actions for
misconduct are dismissed in exchange for a resignation
in good standing, the Board is specifically authorized
to review the charges for honorable service. N.J.S.A.
43:1-3. The Board did, can[,] and should examine the
charges contained in the 2011 PNDA.
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The relevant part of petitioner's Agreement with the City states, "[t]he pending
administrative disciplinary charges against [petitioner] shall be considered[,]
dismissed[,] and withdrawn as moot, with the irrevocable waiver of return to
employment as set forth herein."
Here, petitioner argues that, "[b]ecause of the mootness and withdrawal
of the 2011 disciplinary charge explicit in the Agreement, it cannot be used in
the Uricoli balancing test[.]" As a result, he contends that his pension "cannot
be forfeited as a result of the 2011 PNDA in light of the Agreement." But the
Board explains that "though the denial letter observed that a total forfeiture
makes [petitioner] ineligible for accidental disability retirement benefits, the
Board never conferred jurisdiction over whether [petitioner] could apply for
accidental disability retirement benefits to the [OAL]." N.J.S.A. 52:14B-9
details that notice of issues for a hearing in a contested case must be stated in
the contested case notice. As such, the Board stated the ALJ "acted outside of
that notice by finding that [petitioner] could file for accidental disability
retirement benefits." The Board, not employers, determines eligibility for
pension benefits.
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III.
Here, the ALJ allowed petitioner to apply for accidental disability
retirement benefits, but the Board did not. Petitioner contends that the Board
erred in two respects: (1) there was no jurisdiction on the issue; and (2) there is
no mechanism to discontinue benefits. Petitioner claims that the first point can
be "readily disposed" because "the Board only cited N.J.S.A. 52:14B-10, which
does not stand for the proposition that 'the matter had to be transmitted to the
OAL[.]'" As to the second point, N.J.S.A. 43:16A-8(2) states:
Any beneficiary under the age of [fifty-five] years who
has been retired on a disability retirement allowance
under this act, on his request shall, or upon the request
of the retirement system may, be given a medical
examination and he shall submit to any examination by
a physician or physicians designated by the medical
board once a year for at least a period of five years
following his retirement in order to determine whether
or not the disability which existed at the time he was
retired has vanished or has materially diminished. If
the report of the medical board shall show that such
beneficiary is able to perform either his former duty or
any other available duty in the department which his
employer is willing to assign to him, the beneficiary
shall report for duty; such a beneficiary shall not suffer
any loss of benefits while he awaits his restoration to
active service. If the beneficiary fails to submit to any
such medical examination or fails to return to duty
within [ten] days after being ordered so to do, or within
such further time as may be allowed by the board of
trustees for valid reason, as the case may be, the
pension shall be discontinued during such default.
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Under the statute, an applicant for retirement disability benefits could be
required to return to work if he is rendered fit for duty.
We have previously addressed the consequences of an irrevocable
resignation from employment. "[E]ligibility for disability retirement benefits
requires members to make a prima facie showing that they cannot work due to
a disability." In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386, 394
(App. Div. 2018) (acknowledging the principle that eligibility for benefits
depends on a prima facie showing of an inability to work due to a disability);
see also Cardinale v. Bd. of Trs., Police and Firemen's Ret. Sys., 458 N.J. Super.
260, 268-69 (App. Div. 2019) (concluding that the officer was ineligible for
disability benefits because he resigned irrevocably). Here, as part of the
Agreement, petitioner voluntarily waived any right to return to work for the City
in the future.
"Equitable estoppel applies in circumstances where 'one may, by
voluntary conduct, be precluded from taking a course of action that would work
injustice and wrong to one who with good reason and in good faith has relied
upon such conduct.'" Sellers v. Bd. of Trs., Police & Firemen's Ret. Sys., 399
N.J. Super. 51, 58 (App. Div. 2008) (quoting Summer Cottagers' Ass'n of Cape
May v. City of Cape May, 19 N.J. 493, 503-04 (1955)). Equitable estoppel "is
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rarely invoked against a government entity, although it will be applied in
appropriate circumstances unless the application would prejudice essential
governmental functions." Ibid. (internal citations and quotation marks omitted).
"Principles of equitable estoppel may be applied to a government entity to 'avoid
wrong or injury ensuing from reasonable reliance upon such conduct.'" Ibid.
(quoting Skulski v. Nolan, 68 N.J. 179, 198 (1975)). The doctrine "'is applied
against a municipality only in very compelling circumstances, where the
interests of justice, morality and common fairness dictate that course.'" Ibid.
(quoting Maltese v. Twp. of N. Brunswick, 353 N.J. Super. 226, 244-45 (App.
Div. 2002)).
Here, petitioner argues that there "is credible evidence that [petitioner's]
application for an accidental disability pension would not be affected by the
settlement." Paragraph F of the Agreement states that,
this [A]greement will be fully disclosed to the pension
system and will be forwarded with the [e]mployer
[c]ertification paperwork accompanying [petitioner]'s
retirement application for any pension which
[petitioner] sought or may seek. [The City] agrees to
cooperate with the processing of any paperwork
required of the [City] for the processing of any
retirement application the [petitioner] has filed or may
file and to provide any requested information or
paperwork to the [petitioner] and/or the pension board
as requested on a timely basis. The parties agree that
the [City] shall not be required to take any position
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regarding the nature, extent[,] or cause of any disability
which [petitioner] may rely upon in support of any
disability pension.
Petitioner claims that the Board erroneously relied on Paragraph E of the
Agreement, which states, in part, that "regardless of any effect which it may
have upon his pension or income status[,] and regardless of any statutory or
regulatory provisions which may suggest to the contrary, [petitioner] shall not
seek nor shall he be entitled to a return of employment with the [City]."
Petitioner asserts that "[t]hroughout the Agreement, the City contemplated that
[petitioner] would apply for pension benefits." But the Board was not a party to
the Agreement, and, as such, was not obligated to find that the charges in the
2011 PNDA were moot and withdrawn. In addition, petitioner did not provide
evidence of his own good faith reliance on the Board's prior conduct. We agree
that applying equitable estoppel would "frustrate the Board's disposition of
[petitioner]'s misconduct and prevent the Board from fulfilling its statutory role
overseeing the accidental disability retirement process and managing the PFRS."
To the extent that we have not addressed any of the parties' remaining
arguments, we conclude that they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(D).
Affirmed.
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