ENID GOLDEN v. BOARD OF TRUSTEES, ETC. (TEACHERS' PENSION AND ANNUITY FUND) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0784-20
ENID GOLDEN,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,
Respondent-Respondent.
__________________________
Argued May 12, 2022 – Decided July 26, 2022
Before Judges Haas and Alvarez.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.
Kathleen Naprstek Cerisano argued the cause for
appellant (Zazzali, Fagella, Nowak, Kleinbaum &
Friedman, PC, attorneys; Kathleen Naprstek Cerisano,
of counsel and on the briefs).
Jeffrey D. Padgett, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Jeffrey D.
Padgett, on the brief).
PER CURIAM
Enid Golden appeals an October 6, 2020 final agency decision of the New
Jersey Department of the Treasury, Division of Pensions and Benefits
(Division), Board of Trustees (Board) of the Teacher's Pension and Annuity
Fund (TPAF), requiring her to remit $121,437.21—the amount she earned
during a twelve-month period while employed by the Matawan Aberdeen
Regional Board of Education (MARBOE) after retirement in addition to
receiving her pension benefits. In light of the Administrative Law Judge's (ALJ)
findings of fact adopted in the agency decision, we determine that Golden should
reimburse the Board only the amount she earned from the commencement of her
employment on August 25, 2014, until October 22, 2014, when MARBOE
notified the Division of her employment, and therefore reverse.1
It is undisputed that Golden requested a retirement date of July 1, 2014.
Accordingly, on February 25, 2014, the Division issued a Quotation of
Retirement Benefits confirming the effective retirement date of July 1, 2014,
1
The record does not contain sufficient information for us to calculate this
figure.
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and monthly benefit amount. On March 6, 2014, the Division sent Golden a
Notice of Retirement Approval, which included the following:
Congratulations on your retirement. The Board of
Trustees, at their regular meeting on March 6, 2014,
approved your application for Service Retirement
effective July 1, 2014 . . . .
In accordance with law, you have until thirty days
after (A) the effective date of your retirement, or (B)
the date your retirement was approved by the Board of
Trustees, whichever is the later date, to make any
changes to your retirement. Also, your first check
cannot be mailed until after this thirty[-]day period.
However, the benefit will be retroactive to the original
effective date of your retirement. Please allow an
additional period for the disbursement and delivery of
the check by the federal postal authorities.
If you return to public employment following
your retirement, you must notify our Office of Client
Services immediately at (609) 292-7524.
[(emphasis added).]
On June 9, 2014, Golden amended her retirement application to select the
maximum benefit level, eliminating her husband's survivor benefit. The
Division's response stated: "Once processing is completed, your retirement must
be approved by the retirement system's board of trustees. Your retirement
benefit becomes due and payable [thirty] days after Board approval or [thirty]
days after your effective retirement date, whichever is later." Golden, whom the
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ALJ found to be a credible witness, testified that she never received this
communication.
That same month, MARBOE reached out to Golden to offer her the
position of school superintendent. Believing her effective retirement date was
July 1, 2014, Golden advised the MARBOE attorney that she could not
communicate with a prospective public employer until August 1, 2014, a month
after her retirement date. When the attorney replied that the position would be
filled by then, Golden said: "so then it will."
Golden retired June 30, 2014. On July 22, 2014, the Division notified her
that the monthly pension payment would be increased because of the deletion of
survivor benefits. The letter also stated: "This change will be effective with
your first allowance check dated August 1, 2014." On July 29, 2014, a week
later, the Division sent Golden a second confirmation of the new benefit level.
That second written confirmation specifically indicated that Golden's
effective retirement date was July 1, 2014. On August 1, 2014, TPAF issued
Golden's first pension check for July, in the amended amount.
The MARBOE attorney contacted Golden again on August 1, 2014, and
informed her that the position was still available. She sat for an August 7, 2014
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interview, and was contracted to work for MARBOE from August 25, 2014, to
June 30, 2015, at a per diem rate, without vacation or sick leave.
At its regular meeting, coincidentally also on August 7, 2014, the Board
approved the change to Golden's benefit level and sent her written notification.
Golden testified that when she received the letter, she assumed it was in error
because she had already received her maximum check on August 1, 2014.
Attributing the apparent mistake to "[p]robably one department . . . not speaking
to the other in the bureaucracy of the Pension Board" and "some backed up stuff
or something," Golden "just laughed and just threw [the letter] in the pile" of
her retirement documents.
On October 22, 2014, MARBOE notified the Division of Employment
After Retirement that it had hired Golden. Despite the October 22, 2014 mailing
date, the Board asserts the notification was not received until November 25,
2014, over a month later.
On March 2016, some sixteen months after that, the Division wrote to
MARBOE requesting documents concerning Golden's employment. Despite
MARBOE's October 2014 notification, the matter was not assigned for further
review until March 2016, approximately one and one-half years later, and almost
a year after Golden's employment with MARBOE ended. The TPAF Supervisor
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of the External Audit Unit testified at the administrative law hearing that the
lengthy delay in reviewing the case was likely attributable to insufficient
staffing.
The Division followed up with MARBOE three times in 2016 because it
needed additional documents, or the documents provided were "unacceptable."
The Division did not inform Golden that her retirement was being "audited."
Ultimately, the Division determined that Golden's retirement was not bona fide
because she returned to work within thirty days of August 7, 2014, the date the
Board approved her change to the maximum option.
The TPAF Supervisor further testified that Golden's July 1, 2014
retirement "was non bona fide because she returned to employment prior to her
retirement being due and payable." TPAF does not consider a recipient retired
until retirement benefits become "due and payable and after the employer
employee relationship is severed." There must be a break in service of at least
thirty days following the retirement, or thirty days after the approval by the
Board, whichever is later.
Because the Board took the position that Golden returned to employment
too close to the retirement date—August 7—she had to return the gross salary
she earned with MARBOE, or $121,437.21. Although the TPAF Supervisor
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acknowledged that Golden's first monthly retirement payment was issued before
her "due and payable" date as determined by the Division, she considered the
payment an error made by the Retirement Bureau, and did not factor it into
whether Golden's retirement was bona fide.
The TPAF Supervisor confirmed that the July 18, 2017 letter was the first
notification Golden would have received that there was a problem with her
retirement benefits and post-retirement employment. She had submitted a memo
to the Board in which she stated that the Division received the return to
employment form on November 25, 2014, about five months after Golden's July
1, 2014 retirement date. Golden's benefits in those five months amounted to
$53,429.90, and she had suggested that the Board consider having Golden return
this amount.
In its July 18, 2017 letter to Golden, the Division stated:
A bona fide retirement must also be due
and payable, and your retirement does not
become due and payable until there has
been a cessation of employment of at least
30 days following your retirement date, or
30 days following approval by the TPAF
Board of Trustees, whichever is later. If
you return to employment on either a paid
or voluntary basis - before the 30 days have
elapsed you should expect to continue
enrollment in the TPAF. Your retirement
will be considered invalid. And you will
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remain an active employee under your
original TPAF account.[]
[(emphasis in original).]
The letter demanded that Golden remit $394,469.59, which represented the sum
of total benefits paid to her as of August 1, 2017, plus additional TPAF
contributions from her post-retirement position. After correspondence with
Golden's attorney, the Board reduced the demand amount to $121,437.21.
Golden then requested a hearing in the Office of Administrative Law as a
contested case. N.J.S.A. 52:14B-1 to -15.
After the hearing closed, the ALJ found that the sum Golden earned from
MARBOE came to $121,437.21 in total. However, the ALJ held that the Board
was only entitled to $53,429.90, the amount she believed Golden earned before
the Board received MARBOE's notification. 2 The Board rejected this decision
and concluded that Golden owed the entire $121,437.21. Accordingly,
commencing April 2018, the Board began deducting $2,000 monthly from
Golden's benefits.
2
The figure may be an error, as the TPAF Supervisor's memo indicates that
$53,429.90 was the amount of benefits Golden received from the beginning of
her retirement until the Board received MARBOE's notification—a figure
unrelated to her earnings with MARBOE.
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Golden denied receiving the Board's July 10, 2014 communication that
her "due and payable date" would be thirty days after its approval of the option
change. Understandably, she stated she "went into shock" when she received
the Audit Unit's letter because she thought she had "dotted [her] Is, crossed [her]
Ts." Golden could not remember if she personally notified the Board of her
return to employment.
The ALJ also found that under the relevant regulations, Golden was not
separated from employment until August 7, 2014. However, she pointed out
that Golden's confusion about her retirement date stemmed from the Board's
own inconsistent actions, including the issuance of her first retirement check on
August 1, 2014. The check, in the amended amount, led her to believe that the
effective date of her retirement was July 1, 2014.
The ALJ observed that Golden's decision to ignore the August 7 letter was
"careless . . . but not unreasonable. The August approval action by the Board
could have been construed as a nunc pro tunc action" since the July 1 check
reflected the higher benefit level. "An individual not steeped in the regulations
and procedures of the Board," she stated, "could have assumed that the August
Board action was a formality."
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The ALJ further found that equitable considerations affected the Board's
right to reimbursement. The Board was dilatory in responding to the notice from
MARBOE and mistakenly issued a check dated August 1, 2014, in the increased
amount. Furthermore, Golden credibly testified that she simply would not have
accepted employment had she known it would jeopardize her pension. Thus, the
ALJ found the Board was only entitled to recover Golden's earnings from August
25, 2014, until November 25, 2014, the date the Board acknowledged receiving
MARBOE's notification.
Although the Board's October 6, 2020 decision adopted the ALJ's findings
of fact and conclusions of law, it rejected the ALJ's determination that Golden
was careless but not unreasonable. The Board considered her "inaction [to be]
unreasonable" because she did not contact the Board to clarify her status.
Furthermore, Golden had previously applied for retirement and was informed of
the consequences of noncompliance. Her assumed familiarity with the
retirement process meant a reimbursement of at least $121,437.21 was
warranted. She was required to remit all of her MARBOE earnings.
On appeal, Golden raises the following issues for our consideration:
POINT I
THE TPAF BOARD'S DETERMINATION THAT
APPELLANT'S RETIREMENT WAS NOT BONA
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FIDE AND THAT SHE MUST GIVE TPAF ALL OF
HER POST-RETIREMENT EARNINGS IS NOT
SUPPORTED BY THE FACTS AND APPLICABLE
LAW AND MUST BE REVERSED.
A. STANDARD OF REVIEW
B. APPELLANT'S POST-RETIREMENT
EMPLOYMENT AS INTERIM
SUPERINTENDENT WAS AUTHORIZED BY
N.J.S.A. 18[A]:66-53.2b AND NOT THE RE-
ENROLLMENT PROVISIONS OF N.J.S.A.
18A:66-53.2a.
C. APPELLANT HAD A REASONABLE BELIEF
THAT HER JULY 1, 2014 RETIREMENT WAS
"DUE AND PAYABLE" AND THUS
EFFECTIVE WHEN SHE RECEIVED HER
FIRST PENSION CHECK ON AUGUST 1,
2014, AND THIS REQUIRES AN EQUITABLE
REMEDY.
D. THE DIVISION OF PENSIONS AND
BENEFITS RECEIVED A NOTIFICATION OF
EMPLOYMENT AFTER RETIREMENT FORM
INFORMING IT OF APPELLANT'S POST-
RETIREMENT EMPLOYMENT IN
NOVEMBER 2014 AND ITS FAILURE TO
INFORM APPELLANT OF ANY ALLEGED
VIOLATION UNTIL JULY 2017 REQUIRES
AN EQUITABLE REMEDY.
E. THE TPAF BOARD'S REFUSAL TO
CONSIDER AND APPLY THE ALJ'S
FACTUAL FINDINGS AND CREDIBILITY
DETERMINATIONS AND REACH AN
EQUITABLE AND APPROPRIATE REMEDY
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IS ARBITRARY, CAPRICIOUS, AND
UNREASONABLE.
I.
Judicial review of an agency's final decision is limited. Hayes v. Bd. of
Trustees of Police & Firemen's Ret. Sys., 421 N.J. Super. 43, 51 (App. Div.
2011).
Our "function is to determine whether the administrative action was
arbitrary, capricious or unreasonable." Burris v. Police Dep't W. Orange, 338
N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81
N.J. 571, 580 (1980)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty.
Affairs,186 N.J. 5, 16 (2006). "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, 897 (App. Div. 2006) (citing McGowan v. New Jersey State Parole Bd., 347
N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210
N.J. Super. 276, 285 (App. Div. 1986)).
We are not bound by an agency's decision on a question of law. Thurber
v. City of Burlington, 191 N.J. 487, 502 (2007). According substantial
deference to an agency's interpretation of the relevant statutes does not mean
deference is owed where the interpretation is "plainly unreasonable." Stevens
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v. Bd. of Trs., 294 N.J. Super. 643, 652 (App. Div. 1996); Haley v. Bd. of
Review, Dep't of Labor, 245 N.J. 511, 519 (2021).
The Board interprets N.J.A.C. 17:3-6.2 and N.J.A.C. 17:3-6.3 to mean the
"due and payable" date was Golden's date of retirement. Those provisions state:
17:2–6.2 Effective date
A member's retirement allowance shall not become due
and payable until 30 days after the date the Board
approved the application for retirement or 30 days after
the date of the retirement, whichever is later.
17:2–6.3 Effective dates; change
(b) If a member requests a change of retirement date or
option selection before the member's retirement
allowance becomes due and payable, said change will
require approval of the Board and the revised
retirement allowance shall not become due and payable
until 30 days have elapsed following the effective date
or the date the Board met and approved the change in
the member's retirement application, whichever is later.
Those regulations appear, however, to determine when retirees should be paid—
not when they effectively retire. N.J.A.C. 17:3-6.2 distinguishes between the
"date of retirement," "the date the Board approved the application," and the "due
and payable date," stating that the last date is thirty days after either of the first
two, whichever is later.
Similarly, N.J.A.C. 17:2-6.3 distinguishes between the retirement
approval date, the effective date, and the due and payable date. Thus, it is not
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clear that the Board has a mandate to make the due and payable date the date of
retirement. Golden began to receive benefits in the increased amount within
thirty days of her job termination. This was consequential, and certainly would
have led her to believe her retirement date was July 1, 2014. Adding to the
confusion is N.J.A.C. 17:3-6.1(a), which states: "[a] member's retirement
application becomes effective on the first of the month following receipt of the
application unless a future date is requested."
II.
Equitable principles control the decision here, specifically, the doctrines
of "turn square corners" and equitable estoppel. Golden argues equitable
considerations in general apply, anchoring her argument on Vliet v. Board of
Trustees of Public Employees' Retirement System, 156 N.J. Super. 83 (App.
Div. 1978) and two unpublished cases: Chiappini v. Board of Trustees, No. A-
3983-09 (App. Div. July 29, 2011), and Knox v. Board of Trustees, No. A-1444-
10 (App. Div. Feb. 23, 2012).
In Vliet, a retiree worked for a township for several years in what he
believed to be a "temporary" position. 156 N.J. Super. at 85–86. Prior to
accepting the position, the retiree asked the Public Employee Retirement System
(PERS) whether his allowance would be reduced if the "temporary" position
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provided wages in excess of $500. Id. at 85. PERS answered that it would not.
Ibid. His employer, the township, asked PERS if his pension would be
jeopardized if he was given "part-time" work. Ibid. PERS responded that he
could accept temporary employment, but "if he accepts employment which will
require him to re-enroll in (PERS), his retirement allowance would be reduced
while he was reemployed." Ibid. PERS eventually decided that the retiree's
position was not temporary and demanded that he return all benefits received.
Id. at 87-88.
Although we agreed with PERS that the position was not temporary, we
decided that the appropriate remedy had to be fashioned taking into account
equitable considerations. The equities were "not all on his side" because "[h]ad
he advised the Division of Pensions of his exact employment status he could
have received more specific advice." Id. at 89. However, his employment paid
significantly less than his retirement benefits, and he would never have decided
to continue working if he had known it would jeopardize his pension. Ibid.Considering these facts, we ordered him to pay PERS the money he earned
instead of all of his pension benefits. Ibid. In this case, it would be inequitable
to impose no obligation on Golden. We do not address the unpublished cases
upon which she relies, as they have no precedential value. R. 1:36-3.
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In this case, like in Vliet, the equities are not all on Golden's side because
she ignored the Board's August 7, 2014 notice. Nonetheless, the present matter
falls within the ambit of the "turn square corners" and equitable estoppel
doctrines. The "turn square corners" doctrine holds that the government may
not "conduct itself so as to achieve or preserve any kind of bargaining or
litigational advantage." New Concepts For Living, Inc. v. City of Hackensack,
376 N.J. Super. 394, 401 (App. Div. 2005). Rather, "its primary obligation is to
comport itself with compunction and integrity, and in doing so government may
have to forego the freedom of action that private citizens may employ in dealing
with one another." Ibid. To invoke the "turn square corners" doctrine, citizens
need not prove that they were blameless, or that the government acted in bad
faith. CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of
Adjustment, 414 N.J. Super. 563, 586–87 (App. Div. 2010); see New Concepts,
376 N.J. at 402-403.
For instance, in New Concepts, a non-profit moved to a new location
without informing the city tax assessor. 376 N.J. at 396. It retained its old
location for leasing to other non-profits. Ibid. At some point after the move,
the tax assessor sent the non-profit some paperwork to complete along with an
"initial statement" to be filled out to continue its tax-exempt status. Ibid. These
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materials were sent to the old location but were returned by the post office,
marked "forwarding expired." Ibid. The tax assessor then noticed the non-
profit's sign at the new location and sent the paperwork to the new location. Id.
at 397. However, he forgot to include the "initial statement" with the paperwork.
Ibid.
Thereafter, the tax assessor placed the old location back on the tax rolls
and mailed the tax assessments to the old location. Ibid. The non-profit never
received those assessments. Ibid. As a result, they went unpaid, and the old
location was scheduled for a municipal tax sale. Ibid.
When the non-profit received the municipal tax sale notice, which was
communicated both by mail and by phone, it promptly reached out to the city.
Ibid. Initially, the city agreed to reassess the situation if the non-profit would
send documents verifying that it was tax-exempt. Id. at 398. However, after the
non-profit sent the documents, the city reversed course and asserted that the non-
profit was liable for at least some of the tax assessments because the deadline
for appeal had passed. Ibid.
We found that the non-profit "probably had an obligation to notify the
assessor that it had relocated its operations." Id. at 402. However, we also found
the city failed to notify the non-profit of its tax delinquency, and the non-profit
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contacted the city in a timely manner. Id. at 403. Thereafter, the city, "having
lulled plaintiff into a false sense of security, reversed its position despite having
led plaintiff to believe that it was willing to work with plaintiff in a fair, informal
and reasonable manner to fashion a remedy to plaintiff's problem." Ibid.
Because the city did not turn square corners, the non-profit was permitted to
pursue its tax appeal. Ibid.
The "turn square corners" doctrine has been invoked even when the
agency involved was not responsible for any miscommunication. In Francois v.
Board of Trustees, 415 N.J. Super. 335 (App. Div. 2010), an employee of the
New Jersey Economic Development Authority (EDA) accepted a "mobility
assignment" that required him to work for the Port Authority of New York and
New Jersey (Port Authority). Id. at 338. Both agencies assured the employee
that he would receive pension credit for time spent with the Port Authority. Id.
at 340. However, these assurances were not given at PERS's behest, and PERS
eventually refused to grant the credit for the duration of the assignment. Id. at
344-45. On appeal, we overturned PERS's decision, citing the "turn square
corners" doctrine. Id. at 353.
It appears to us that the Board did not turn square corners in this case,
albeit for innocent reasons. All the delays occasioned by the Audit Unit
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effectively increased the amount that Golden owed when demand for
reimbursement was finally made.
Previously, on July 10, 2014, the Board informed Golden's husband that
he would not receive a survivor's portion, and a second July 22, 2014 letter
advised Golden that her allowance would be increased because of the
elimination of the survivor benefit. That was confirmed again on July 29, 2014.
And finally, of course, on August 1, 2014, the Board deposited Golden's check
reflecting the new benefit amount.
In light of these actions, Golden reasonably believed that her retirement
effective date was July 1, 2014. It is no surprise that she believed the letter of
August 7, 2014, issued in error.
And a citizen need not be entirely blameless—although in this case, it was
Golden's failure to contact the Board to confirm the effective date of her
retirement that the Board relies on to establish her culpability. But that error,
compared to that of the petitioner in New Concepts, is minor. The Board's
conduct, although free of any malice, fell short of its primary obligation to make
the terms and conditions consistent and crystal clear.
The Board argues that because everyone is presumed to know the law,
Golden should be presumed to know that under N.J.A.C. 17:2-6.3(b), a change
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in benefit level does not become due and payable until thirty days after the Board
approves the change. Even if Golden had known this, she was entitled to rely
on the four Division communications that her modification request was
approved. Indeed, the Division informed her in its March 6, 2014 letter that the
check could only be mailed thirty days after approval. Thus, the Board arguably
assured Golden many times that her due and payable date was August 1, 2014.
Her reliance on these communications was reasonable, and the Board must turn
square corners in its interactions with a retiree.
Equitable estoppel "is an equitable doctrine, founded in the fundamental
duty of fair dealing imposed by law." Knorr v. Smeal, 178 N.J. 169, 178 (2003).
The doctrine is rarely applied against a government entity and may only be
invoked for that purpose to prevent manifest injustice. Bridgewater-Raritan
Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., Somerset Cty.,
221 N.J. 349, 364 (2015). In some formulations, the doctrine requires a showing
that the "defendant engaged in conduct, either intentionally or under
circumstances that induced reliance, and that plaintiffs acted or changed their
position to their detriment." Ibid. In other formulations, "[t]he essential
elements of equitable estoppel are a knowing and intentional misrepresentation
by the party sought to be estopped under circumstances in which the
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misrepresentation would probably induce reliance, and reliance by the party
seeking estoppel to his or her detriment." In re Johnson, 215 N.J. 366, 379
(2013) (emphasis added).
Some courts have held that "[t]here need not be evidence of fraudulent
intent for equitable estoppel to apply." Tasca v. Bd. of Trs., Police & Firemen's
Ret. Sys., 458 N.J. Super. 47, 60 (App. Div. 2019). For instance, in In re
Johnson, the Supreme Court applied equitable estoppel where the Department
of Personnel (DOP) reneged on its assurances to the Cape May County
prosecutor that he was entitled to an unclassified agent, that the requirement for
classification would not apply to agents already hired, and that an audit, which
was to be conducted, would not affect those hired before a certain date. 215 N.J.
at 372, 384-85. After making these promises, the DOP sought to move the
prosecutor's long-term agent to a classified position. Id. at 385-86. There is no
indication that the DOP intended to deceive when it made the promises.
Nevertheless, the Supreme Court held that equitable estoppel applied. Id. at
386-87.
Also noteworthy is Hemsey v. Board of Trustees, Police & Firemen's
Retirement System, 393 N.J. Super. 524, 531–36 (App. Div. 2007), rev'd on
other grounds, 198 N.J. 215 (2009), where representatives of the PFRS Board
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assured a member that his post-retirement employment would not affect his
benefits, but the Board later sought to recover about $450,000 for benefits he
had received. Under these facts, we found that equitable estoppel barred PFRS
from recovery. Ibid.Even if we presume that Golden knew the law, we cannot presume that
she knew the date of approval was other than July 1, 2014, given the payment
of her first retirement check in the increased amount. The payment preceded
formal approval. Furthermore, the Board did not reach out to Golden until over
three years after her receipt of the first retirement check. Obviously, if the Board
had contacted Golden about the situation promptly after notification from
MARBOE, this dispute and the long-running litigation would not have occurred.
The Board has no explanation for the delay between MARBOE's undisputed
notification and the receipt, which lasted over a month. In consideration of these
facts, the Board is equitably estopped from claiming more than Golden's
earnings from August 25, 2014, to October 22, 2014, when MARBOE sent its
notification.
Reversed.
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