A. ZACHARY YAMBA VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1058-17T2
A. ZACHARY YAMBA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
______________________________
Argued May 13, 2019 – Decided May 29, 2019
Before Judges Messano and Fasciale.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. 2-10-244595.
Syrion Anthony Jack argued the cause for appellants A.
Zachary Yamba and Board of Trustees (Essex County
College, attorneys; Joy B. Tolliver, of counsel; Syrion
Anthony Jack, on the briefs).
Adam Blake Masef, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Adam Blake Masef, on
the brief).
PER CURIAM
A. Zachary Yamba (Yamba) appeals from a final decision by the Board of
Trustees (Board), Public Employees' Retirement Systems (PERS), denying his
request for exemption from re-enrollment in PERS. N.J.S.A. 43:15A-57.2 (the
PERS re-enrollment statute) governs this appeal, which the Board applied
correctly in its final decision. We affirm substantially for the reasons expressed
by the Board, and add the following brief remarks.
In April 2010, Yamba retired as President of Essex County College
(ECC). From May 2010 to April 2016, he received a monthly pension of
$16,459.80. In April 2016, ECC rehired Yamba as Acting President, and that
summer, the Division of Pension and Benefits notified him that he had to re -
enroll in PERS. Yamba argued he was statutorily exempt from re-enrollment,
but the Board rejected that argument.
On appeal, Yamba contends that the Board erroneously interpreted the
PERS re-enrollment statute. He maintains that only ECC can determine his
salary, and that the Board's decision penalizes him because he is a qualified and
experienced retiree. Yamba contends that his return to employment – as a non-
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teacher – filled a "critical need" position at ECC, and that he is therefore exempt
from re-enrolling in PERS.
The PERS re-enrollment statute generally addresses pension ramifications
of reemployment. N.J.S.A. 43:15A-57.2(a) governs cancellation of one's
retirement allowance. Except as to subsections (b), (c), and (d), section (a)
provides in part that
if a former member of the State Employees' Retirement
System or 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.
Subsection (b) renders these "cancellation, re-enrollment, and additional
retirement allowance provisions" inapplicable "to a former member of the
retirement system who, after having been granted a retirement allowance,
becomes employed again by . . . an employer or employers in a position or
positions for which the aggregate compensation does not exceed $15,000 per
year." Under subsection (c), there are two exceptions to the requirement that
one re-enroll in PERS:
The cancellation, re[-]enrollment, and additional
retirement allowance provisions of subsection a. and
the compensation limitations of subsection b. of this
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section shall not apply to a former member of the
retirement system who, after having been granted a
retirement allowance, becomes employed by the State
Department of Education in a position of critical need
as determined by the State Commissioner of Education,
or becomes employed by a board of education in a
position of critical need as determined by the
superintendent of the district . . . .
Neither exception applies to Yamba. Neither the State Department of Education
nor a board of education hired him; and his position as Acting President of ECC
had not been determined to be one of "critical need" as that term is used in the
PERS re-enrollment statute.
As to the "critical need" exemption under subsection (c), Yamba was a
community college administrator, not a teaching staff member of ECC. In 2001,
the Legislature amended the PERS re-enrollment statute "to encourage PERS
retirees to reenter public service as teaching staff members in public institutions
of higher education in this State." Sponsor's Statement to A. 988 (L. 2001, c.
253). Non-teacher staff members at colleges are not exempt from PERS re-
enrollment. The purpose of the Legislative amendments was to "provide
significant contributions to higher education" by incentivizing retired teachers
to return to teaching positions. Ibid. Moreover, the amendment to N.J.S.A.
43:15A-57.2(c) "allows the Department of Education and school districts to
address shortages of certain qualified professional personnel through
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employment of [Teachers' Pension and Annuity Fund (TPAF)] and PERS
retirees without re-enrollment in their retirement systems." Sponsor's Statement
to A. 3848 (L. 2001, c. 355). Such qualified professional personnel would be
determined by the Commissioner of Education. Ibid. Thus, there is no support
for Yamba's claim that the Legislature intended all non-teaching staff to be
exempt from the PERS re-enrollment statute.
The general effect of the PERS re-enrollment statute is that once an
individual begins receiving pension benefits – like Yamba – that person "may
not continue receiving those benefits 'while continuing in employment' in the
same position or in any other position requiring PERS membership." Stevens v.
Bd. of Trs., Pub. Emps.' Ret. Sys., 309 N.J. Super. 300, 303 (App. Div. 1998)
(quoting Vliet v. Bd. of Trs., Pub. Emps.' Ret. Sys., 156 N.J. Super. 83, 89 (App.
Div. 1978)). In Stevens, we stated that the purpose of the statute is to "prevent
professionals from manipulating the pension system by working part-time for
governmental agencies while receiving a public pension." Ibid. And the Board
guards against any such abuse. Ibid. The Board did just that.
Affirmed.
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