MARIO ALBERTO RECINOS VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5590-15T3
MARIO ALBERTO RECINOS,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
______________________________
Argued May 31, 2018 – Decided July 19, 2018
Before Judges Haas, Rothstadt, and Gooden
Brown.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System, PFRS
No. 3-10-42728.
John Vincent Saykanic argued the cause for
appellant.
Danielle P. Schimmel, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Danielle P. Schimmel, on the brief).
PER CURIAM
In 2011, Mario Alberto Recinos retired from the Passaic County
Sheriff's Department (PCSD) as a Detective Lieutenant, concluding
a nearly twenty-nine year career in law enforcement. He received
a special service retirement from the Police and Firemen's
Retirement System (PFRS). After the required thirty-day break in
service, he resumed employment with PCSD, ultimately holding a
PFRS-eligible position without re-enrolling in PFRS.
On August 10, 2015, the Division of Pensions and Benefits
(Division) cancelled his retirement pursuant to N.J.S.A. 43:16A-
15.3, effective December 1, 2011, re-enrolled him as of that date
in the PFRS as an active contributing member, and required him to
repay all pension payments he received after December 1, 2011, and
to pay back pension contributions on the salary he received from
eligible employment. Recinos now appeals from the July 12, 2016
final agency decision of the Board of Trustees of the Police and
Firemen's Retirement System (Board), affirming the Division's
determination. We affirm substantially for the reasons expressed
in the Board's comprehensive decision.
As background, a PFRS member cannot receive retirement
benefits based on prior service if currently employed in another
PFRS-eligible position. If a PFRS retiree accepts new employment
in a PFRS-eligible position, his retirement benefits are cancelled
2 A-5590-15T3
until he retires again, and he is reenrolled in the PFRS. In that
regard, N.J.S.A. 43:16A-15.3(a) specifically provides:
[I]f a former member of the retirement system
who has been granted a retirement allowance
for any cause other than disability, becomes
employed again in a position which makes him
eligible to be a member of the retirement
system, his retirement allowance and the right
to any death benefit as a result of his former
membership, shall be canceled until he again
retires.
Such person shall be reenrolled in the
retirement system and shall contribute thereto
at a rate based on his age at the time of
reenrollment. . . . Upon subsequent
retirement of such member, his former
retirement allowance shall be reinstated based
on his former membership.
The Board approved Recinos' retirement application from PCSD,
notifying him and his employer in a March 14, 2011 letter that
"[i]f [he] return[ed] to public employment following [his]
retirement, [he] must notify [the Division's] Office of Client
Services immediately." Recinos began receiving his monthly
retirement allowance of $8177.64 on July 1, 2011, representing the
benefit for June 2011.
On July 25, 2011, Recinos was rehired by PCSD as a
"Keyboarding Clerk 1," at an annual salary of $41,120, and held
the position until November 30, 2011. On December 1, 2011, Recinos
was appointed Director of the Bureau of Narcotics at an annual
salary of $77,225. He held that position until February 2, 2014,
3 A-5590-15T3
and on February 3, 2014, Recinos was appointed Undersheriff of
PCSD at an annual salary of $90,000. Recinos never informed the
Division of his post-retirement employment.
After receiving an anonymous tip, the Division's Pensions
Fraud & Abuse Unit launched an investigation into Recinos' post-
retirement employment. On August 10, 2015, citing N.J.S.A. 43:16A-
15.3, N.J.S.A. 43:16A-3.1,1 and N.J.S.A. 40A:9-119.2,2 Investigator
Mark Casey notified Recinos that his PFRS retirement benefits
1
N.J.S.A. 43:16A-3.1 deems certain positions "with administrative
or supervisory duties over policemen" as PFRS-eligible if a PFRS
member occupies that position within six months of his or her
prior service in a PFRS position.
2
N.J.S.A. 40A:9-119.2 provides:
The sheriff of any county may appoint any
person who, at the time of his appointment,
has: a. served for [ten] years or more as a
law enforcement official, three years of which
shall have been in a supervisory position that
included responsibilities for narcotic
investigation or control activities; and b.
has been certified by the Police Training
Commission [(PTC)] as having completed a
police training course at an approved police
training school, pursuant to [N.J.S.A. 52:17B-
66 to -77.6], as director of the bureau of
narcotics, to serve for a term of one year
without having to take a civil service
examination. The director of the bureau of
narcotics shall have full police officer
status, as is granted to other sheriff’s
officers.
4 A-5590-15T3
would be suspended and that he was required to re-enroll in PFRS
as of December 1, 2011, when he returned to employment as Director
of Bureau of Narcotics, and to remain enrolled for the duration
of his employment as Undersheriff. Casey's letter also required
Recinos to repay the pension benefits he received from December
1, 2011 through August 1, 2015, totaling $359,816.16, and pay
$30,901.81 in back pension contributions on the salary he received
for his post-retirement Passaic County PFRS employment.
Recinos appealed the determination, and, on October 20, 2015,
Kristin Bell, another Pensions Fraud & Abuse Unit investigator,
sent him a revised determination. The revised determination relied
on the same statutory citations, with the exception of N.J.S.A.
43:16A-3.1. Citing N.J.A.C. 17:4-6.8(a)(1),3 Bell reached the same
conclusion as the initial determination and required the same
repayment of benefits and payment of back pension contributions.
Recinos appealed to the Board, and, on March 16, 2016, the
Board issued its decision affirming Casey's and Bell's prior
determinations. The Board specified that after he was appointed
as Director of Bureau of Narcotics, based on the requirements of
3
N.J.A.C. 17:4-6.8(a)(1) provides that "[a] member . . . whose
retirement has become effective pursuant to N.J.A.C. 17:4-6.2, is
required to re-enroll in the [PFRS] pursuant to N.J.S.A. 43:16A-
15.3, regardless of whether the member is over age [thirty-five],
if . . . the member returns to the employment in a PFRS covered
position."
5 A-5590-15T3
N.J.S.A. 40A:9-119.2, Recinos was required to re-enroll in PFRS.
The Board determined further that the position of Undersheriff was
eligible for PFRS membership pursuant to N.J.S.A. 43:16A-15.3.
The Board cancelled Recinos' retirement allowance, required his
re-enrollment in PFRS as an active contributing member effective
December 1, 2011, and ordered him to repay all pension benefits
and pay all back pension contributions since December 1, 2011.
On May 4, 2016, Recinos requested that the Board reconsider
its decision. In support of his request, he submitted the
purported expert report of Charles S. Meyers, a consultant of the
Vyanka Group, LLC. In the report, Meyers stated
Recinos' title was changed [from Keyboarding
Clerk 1] to the appointed position of
Director, Bureau of Narcotics, a position
established by [N.J.S.A. 40A:9-119.2] and
covered . . . by a New Jersey State
administered retirement system other than the
PFRS. Recinos was already employed by the
agency and his appointment to this new
position was not a "re-employment" but rather
an advance or promotion of an existing
employee within the same employment unit.
Similarly, according to Meyers, on February 3, 2014, "Recinos was
advanced/promoted to the position of Undersheriff." Meyers
explained that:
The advancement[s]/promotion[s] [were]
allowed because Recinos' original re-
employment was consistent with the rules in
place at the time of his return to employment,
the position[s] [were] covered by a New Jersey
6 A-5590-15T3
State administered retirement system other
than the PFRS, and Recinos had separated his
original service more than 180 days prior to
his appointment.
On July 12, 2016, the Board denied Recinos' request for an
administrative hearing in the Office of Administrative Law (OAL)
pursuant to N.J.A.C. 17:1-1.5, because there were no disputed
questions of fact, and issued its Final Administrative
Determination affirming the Division's August 10, 2015 decision.
The Board rejected Meyers' report, finding the opinion
"unpersuasive" and "entitled to no weight," and finding Meyers
"unqualified." The Board noted that based on Recinos' submissions,
"Meyers [was] the former Warden of the Passaic County Jail and [a]
PFRS retiree," held various positions in the PCSD, and served as
County Business Administrator in 2011 and 2012.
According to the Board, in his capacity as County Business
Administrator, on December 12, 2011, Meyers had emailed Aurus
Malloy of the Civil Service Commission (Commission) requesting a
current job description of the Director of Bureau of Narcotics
title, and inquiring which of two Director titles listed on the
Commission's website, 05891 or 07762, should be used for Recinos.
Although Malloy responded that 07762 was an unclassified position
for which the Commission did not have a job title, he provided a
7 A-5590-15T3
citation to N.J.S.A. 40A:9-119.2 as well as the text of the
statute.
The Board explained that, as a result, Meyers' "purported
expert" opinion was "not independent," because Meyers "ha[d] a
direct conflict of interest as he [was] a fact witness in this
matter since he corresponded with the . . . Commission" on
Recinos' behalf. Moreover, the Board pointed out that "Recinos
did not contact the Division to inquire about the consequences of
accepting either position, and thereby did not rely to his
detriment on advice or information from the Division." In
specifically addressing Recinos' assertion that he and his
employer "[had] been transparent in their actions through contact
with the State," the Board explained:
[T]his contact was with the Civil Service
Commission. The Board [did] not dispute that
Mr. Recinos was hired in accordance with the
Civil Service Commission's procedures, nor
[did] the Board dispute Mr. Recinos' ability
to hold these positions. The issue [was]
whether Mr. Recinos [had] to enroll in the
PFRS as a result of taking these positions, a
question within the authority of the PFRS
Board and the Division. At no point did Mr.
Recinos or [his employer] contact the Division
when Mr. Recinos returned to post-retirement
public employment, as required by the March
14, 2011 letter approving Mr. Recinos'
retirement.
The Board determined that although the title of Director of
Bureau of Narcotics was "not included on the list of PFRS eligible
8 A-5590-15T3
titles" on the Division's website and "is an unclassified position
under the rules of Civil Service," the position was, in fact,
"eligible for PFRS enrollment by its[] statutory definition,"
which "governs the position." Specifically, under N.J.S.A. 40A:9-
119.2, the position "requires [ten] years or more as a law
enforcement official, three years of which are supervisory, [and]
PTC training." Furthermore, "the Legislature determined that the
position 'shall have police officer status,[4] as is granted to
other sheriff's officers.'"5 Moreover, the Director will also
4
For purposes of PFRS enrollment, a "policeman" is defined under
N.J.S.A. 43:16A-1(2)(a) as
a permanent, full-time employee of a law
enforcement unit . . . whose primary duties
include the investigation, apprehension or
detention of persons suspected or convicted
of violating the criminal laws of the State
and who . . . is authorized to carry a firearm
while engaged in the actual performance of his
official duties; . . . has police powers;
. . . is required to complete successfully the
[applicable] training requirements . . . ;
and . . . is subject to the [applicable]
physical and mental fitness requirements.
N.J.S.A. 43:16A-3 requires membership in PFRS "as a condition
of . . . employment." Under N.J.S.A. 43:16A-1.2(b) and N.J.A.C.
17:4-2.1, the Board determines whether a title meets the
requirements and whether the title is eligible for PFRS enrollment
when an employer submits a request for a title review.
5
Under N.J.S.A. 40A:9-117.13, sheriff's officers are eligible
for enrollment in PFRS.
9 A-5590-15T3
have "supervisory duties over sheriff's officers who themselves
are sworn police officers."
Likewise, the Board determined that "for members in PFRS, the
position of Undersheriff is eligible for continued PFRS
membership." In making that determination, the Board relied on
N.J.S.A. 43:16A-3.5, which provides:
Any member of the [PFRS] of New Jersey
who has been or shall be elected to the
position of sheriff or who has accepted or
shall accept appointment to the office or
position of undersheriff may, by written
notification to the Director of the Division
of Pensions and the county treasurer, elect
to continue to be a member of the retirement
system while serving as sheriff or
undersheriff and shall be deemed to have
waived any and all benefits to which he would
otherwise be entitled by eligibility for
membership in the [PFRS]. The county
treasurer shall make deductions from the
salary of the sheriff or undersheriff and
contributions on his behalf to the [PFRS] as
is required by law for members of that system.
According to the Board, because
Recinos was appointed Undersheriff of Passaic
County without any break in service from his
position as Director of Bureau of Narcotics,
both positions with the same
employer, . . . even if he had declined PFRS
participation [in his position as
Undersheriff], he was ineligible to collect
any pension benefit under IRS
rules . . . until he [had] a bona fide
retirement from Passaic County pursuant to
N.J.A.C. 17:1-17.14 (180 day break in service
with no pre-arrangement to return).
10 A-5590-15T3
The Board acknowledged that "Recinos' retirement was bona
fide according to N.J.A.C. 17:4-6.2,"6 "that the required break in
service under the regulations in effect at that time [were]
observed,"7 and that his non-PFRS keyboarding clerk position was
"not at issue."8 However, relying on the requirements of N.J.S.A.
43:16A-15.3 and the definition in N.J.S.A. 40A:9-119.2, the Board
rejected Recinos' contention that he "substantially complied with
the requirements for accepting post-retirement employment without
jeopardizing his retirement" in connection with the Director of
Bureau of Narcotics and Undersheriff positions. The Board also
rejected Recinos' argument that his "service as a Sheriff's Officer
[was] substantially different than his pre-retirement job in
6
N.J.A.C. 17:4-6.2 provides that "[a] member's retirement
allowance shall not become due and payable until [thirty] days
after the date the Board approved the application for retirement
or one month after the date of the retirement, whichever is later."
7
Recinos' June 1, 2011 retirement was deemed bona fide because
he observed the required thirty-day break in service before he was
rehired. N.J.A.C. 17:1-17.14, which extended the thirty-day break
in service requirement to 180 days before returning to work with
the same employer, was promulgated after these events transpired
and became effective March 9, 2012. Moreover, because the
keyboarding position was not a PFRS-eligible position, no re-
enrollment requirement was triggered as a result of Recinos' post-
retirement employment in that position.
8
N.J.S.A. 43:3C-1 prohibits "a former member of
any . . . retirement system . . . who has been granted a pension"
from enrolling in another retirement system if the former member
"becomes employed again in a position which makes him eligible to
be a member of" such other retirement system.
11 A-5590-15T3
Corrections" and should therefore not be subject to reenrollment
in PFRS. The Board explained that
the title of the covered employment is not
controlling, and whether a post retirement
PFRS position is similar or dissimilar to the
prior position is also not controlling. The
relevant fact is the position's eligibility
for PFRS enrollment whether that position is
located in corrections or police work or
firefighting, and whether reenrollment is
required by the statute. . . . Recinos
accepted the position of Director of the
Bureau of Narcotics, a law enforcement
position that required police training and
granted law enforcement powers pursuant to
N.J.S.A. 40A:9-119.2. Acceptance of the
Undersheriff position is a continuation in
PFRS-covered employment, as permitted by
N.J.S.A. 43:16A-3.5. He continues in such
employment through the present.
This appeal followed.
On appeal, Recinos raises the following points for our
consideration:
POINT I
THE APPELLANT MR. RECINOS WAS NOT REQUIRED TO
REENROLL IN THE [PFRS] NOR REQUIRED TO PAY
BACK RETIREMENT BENEFITS HE HAS RECEIVED (AND
TO MAKE PAYMENTS INTO THE PENSION SYSTEM)
SINCE THERE IS INSUFFICIENT CREDIBLE EVIDENCE
TO CONCLUDE THAT THE DIRECTOR OF THE BUREAU
OF NARCOTICS IS A PFRS POSITION BY THE
STATUTORY REQUIREMENTS AND DEFINITION IN
N.J.S.A. 40A:9-119.2; NEITHER THE DIRECTOR
POSITION (NOR THE UNDERSHERIFF POSITION)
EXERCISES "ADMINISTRATIVE OR SUPERVISORY
DUTIES OVER POLICEMEN OR FIREMEN;" THE BOARD'S
DECISION IS ARBITRARY, CAPRICIOUS,
UNREASONABLE, AND INCORRECT; AT THE VERY
12 A-5590-15T3
LEAST, THE MATTER SHOULD BE REMANDED FOR AN
EVIDENTIARY HEARING.
POINT II
EQUITY, FUNDAMENTAL FAIRNESS AND DUE PROCESS
(ALONG WITH NEW JERSEY STATE SUPREME COURT
DECISIONS INCLUDING RUVOLDT V. NOLAN, 63 N.J.
171 (1973) ALONG WITH DECISIONS OF THIS COURT
INCLUDING [Knox v. Public Employees'
Retirement System, No. A-1444-10T3 (App. Div.
Feb. 23, 2012)]) WARRANT A REVERSAL OF THE
BOARD'S DECISION AS IT IS ARBITRARY,
CAPRICIOUS AND UNREASONABLE; AT THE VERY
LEAST, THE MATTER SHOULD BE REMANDED FOR AN
EVIDENTIARY HEARING.
POINT III
THE BOARD ERRED IN FINDING AS A FACTOR ITS
CONTENTION THAT MR. RECINOS DID NOT CONTACT
THE DIVISION.
POINT IV
MR. RECINOS HAS THE REQUISITE BREAKS IN
SERVICE WHICH WERE GREATER THAN [THIRTY] AND
180 DAYS AS TO ANY LAW ENFORCEMENT POSITION;
THE DECISION OF THE BOARD MUST BE REVERSED.
POINT V
THE ITEM OF FULL POLICE POWERS IS NOT A
QUESTION OF PENSIONABILITY AND SHOULD NOT
PREVENT MR. RECINOS FROM RECEIVING HIS PENSION
WHILE SERVING AS UNDERSHERIFF.
POINT VI
THE DECISION OF THE BOARD MUST BE REVERSED
SINCE THE POSITION OF UNDERSHERIFF IS NOT
LISTED ON ANY DOCUMENTS ISSUED BY THE PENSION
BOARD REGARDING PENSIONABLE POSITIONS.
POINT VII
13 A-5590-15T3
THE BOARD COMMITTED REVERSIBLE ERROR BY
FINDING THAT THE EXPERT REPORT OF MR. MEYERS
"IS ENTITLED TO NO WEIGHT"; AT THE VERY LEAST,
THERE MUST BE A REMAND AND EVIDENTIARY HEARING
CONSIDERING MR. [MEYERS'] REPORT AND
CONCLUSIONS.
POINT VIII
THE RETIREMENT PLAN PROVIDED BY THE STATE OF
NEW JERSEY TO POLICE OFFICERS AND FIREFIGHTERS
WHO ARE VESTED IN THE PLAN CREATES RIGHTS THAT
ARE PROTECTED BY THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS (THOUGH RAISED BELOW BY
MR. RECINOS . . . THE BOARD DID NOT ADDRESS
THIS ISSUE).
POINT IX
THE POSITIONS OF THE DIRECTOR OF THE BUREAU
OF NARCOTICS AND UNDERSHERIFF ARE NOT PFRS-
ELIGIBLE POSITIONS BECAUSE THE TITLES DO NOT
APPEAR ON THE DIVISION'S WEBSITE AS AN
ELIGIBLE TITLE; NOR ARE THEY PERMANENT
POSITIONS BUT ARE INSTEAD AT-WILL UNCLASSIFIED
POSITIONS UNDER THE RULES OF CIVIL SERVICE
WHICH PROHIBIT REENROLLMENT OF MR. RECINOS
INTO THE [PFRS].
POINT X
THE EVER-CHANGING ILLEGITIMATE THEORIES
PRESENTED BY THE DIVISION AND THE BOARD MADE
IT IMPOSSIBLE FOR MR. RECINOS TO DEFEND AND
PRESENT HIS CASE IN A PROPER MANNER; AT THE
VERY LEAST, THE MATTER MUST BE REMANDED FOR
AN EVIDENTIARY HEARING (NOT RAISED BELOW).
POINT XI
THE BOARD ERRED IN DENYING MR. RECINOS'
REQUEST FOR AN EVIDENTIARY ADMINISTRATIVE
HEARING PARTICULARLY IN LIGHT OF THE CONFUSION
14 A-5590-15T3
IN THE RECORD SURROUNDING MR. RECINOS'
POSITIONS.
"Our review of administrative agency action is limited."
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,
27 (2011). Reviewing courts presume the validity of the
"administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014).
For those reasons, "an appellate court ordinarily should not
disturb an administrative agency's determinations or findings
unless there is a clear showing that (1) the agency did not follow
the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial
evidence." In re Application of Virtua-West Jersey Hosp. Vorhees
for a Certificate of Need, 194 N.J. 413, 422 (2008). "The burden
of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44
(App. Div. 2006).
"[T]he test is not whether an appellate court would come to
the same conclusion if the original determination was its to make,
but rather whether the factfinder could reasonably so conclude
upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App.
15 A-5590-15T3
Div. 1985)). "Where . . . the determination is founded upon
sufficient credible evidence seen from the totality of the record
and on that record findings have been made and conclusions reached
involving agency expertise, the agency decision should be
sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J.
174, 189 (1980). That said, appellate courts review de novo an
agency's interpretation of a statute or case law. Russo, 206 N.J.
at 27.
Here, we are satisfied that the Board properly followed the
applicable law and its decision was neither arbitrary, capricious,
nor unreasonable, but rather supported by substantial evidence in
the record. We affirm substantially for the reasons expressed by
the Board in its July 12, 2016 final decision. We have considered
Recinos' contentions in light of the record and applicable legal
principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and
(E).
Affirmed.
16 A-5590-15T3