GLENN POOSIKIAN VS. DIVISION OF PENSIONS AND BENEFITS (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0343-19
GLENN POOSIKIAN,
Petitioner-Appellant,
v.
DIVISION OF PENSIONS AND
BENEFITS,
Respondent-Respondent.
_____________________________
Argued October 13, 2020 – Decided February 26, 2021
Before Judges Suter and Smith.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. 2-1484333.
Robert T. Regan argued the cause for appellant.
Amy Cheng, Assistant Chief, Deputy Attorney
General argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Porter R.
Strickler, Deputy Attorney General, on the brief).
PER CURIAM
Appellant, Glenn Z. Poosikian (Poosikian) appeals from a Final
Administrative Determination of the Board of Trustees for the Public Employees
Retirement System (PERS),1 finding him ineligible for a pension.
Poosikian, an attorney, won election to the Haworth Borough Council on
November 6, 2006, and took office on January 1, 2007. After being sworn in,
Poosikian asked Ann Fay, the Haworth Borough Clerk/Administrator, to enroll
him in PERS. He maintains Fay mistakenly told him he did not qualify for PERS
enrollment at that time. That year, the Legislature passed Chapter 92, P.L. 2007,
of which the relevant statutory section is now known as N.J.S.A. 43:15A-7(d)2,
making elected officials unenrolled prior to July 1, 2007 ineligible for PERS
1
The Public Employees Retirement System of New Jersey (PERS) is a defined
benefit plan administered by the New Jersey Division of Pensions and Benefits.
N.J. Division of Pension and Benefits, PERS Member Guidebook (February
2020).
2
N.J.S.A. 43:15A-7(d) reads in pertinent part:
Elected officials commencing service on or after the
effective date [July 1, 2007] shall not be eligible for
membership in the retirement system based on service
in the elective public office, except that an elected
official enrolled in the retirement system as of that
effective date who continues to hold that elective public
office without a break in service shall be eligible to
continue membership in the retirement system under
the terms and conditions of enrollment.
[N.J.S.A. 43:15A-7(d).]
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pensions. Since his 2006 election, Poosikian has served continuously as a
Haworth councilperson, winning re-election in 2009, 2012, 2015, and 2018. We
discern nothing in the record which reveals whether Poosikian took action to
determine his PERS enrollment eligibility one way or another between the time
he first inquired of Fay until 2018, over a decade later.
Sometime in 2018, Poosikian became aware that he may have been
eligible for PERS enrollment between January 1 and July 1, 2007. Poosikian
contacted a payroll clerk in Haworth, where he remained an elected member of
council. The payroll clerk unsuccessfully attempted to enroll him in the PERS
system on June 12, 2018. The following day, the Division of Pensions and
Benefits (Division) sent the payroll clerk an employment verification form with
instructions to complete the form and return it, which she did. On August 9,
2018, the Division informed the Haworth payroll clerk that Poosikian was
eligible for PERS enrollment.
Shortly thereafter, the Division sent Haworth an invoice for delayed
enrollment in the amount of $1,706.60. After the payroll clerk inquired, the
Division directed Poosikian, not Haworth, to personally pay the full amount due.
Approximately a month later, on September 10, 2018, the Division sent the
borough a Certification of Payroll Deductions, effectively confirming
Poosikian’s enrollment.
A-0343-19
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In a November 5, 2018 letter, the Division reversed its earlier decision
and advised Poosikian his "enrollment application was processed in error" and
that his "account ha[d] been cancelled." The Division letter noted elected
officials were not eligible for enrollment in PERS as of July 1, 2007. In support
of its position, the Division referenced its October 2008 memorandum3
instructing local government pension plan certifying officers on enrollment
procedure. The October memo stated in part,
The Division of Pensions and Benefits is seeking the
help of employers to identify any non-veteran elected
officials who are not currently enrolled in either the
PERS or the DCRP.
First, employers are asked to identify these officials,
list them on the enclosed Non-Veteran Elected Officials
Roster, and return that information to the Division.
Second, employers are asked to contact these officials
and explain the following enrollment choices.
If the official was serving in an elected office prior to
July 2007, and continues to serve in the same term for
that same elected office, the official may either enroll
in the PERS or complete the enclosed PERS Optional
Enrollment Waiver form and return it to the Division of
Pensions and Benefits.
[N.J. Department of the Treasury, Division of Pensions
and Benefits Memorandum, 2 (October 2008).]
3
The 2008 Division memorandum is entitled, "Enrollment of Elected Officials
in the DCRP, exceptions for PERS members, and PERS waiver by Non-Veteran
Elected Officials."
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The letter also stated the Division never received the Non-Veteran
Elected Officials Roster requested from Haworth in the October 2008 memo.
Poosikian sought reconsideration of the Division's administrative determination,
which was denied.
Poosikian appealed the denial. At the April 17, 2019 PERS Board of
Trustees meeting, the Board considered Poosikian’s application on the merits.
Poosikian and his counsel presented argument at the meeting. No record, written
or recorded, was kept of the Board meeting, which we understand from the
record to be standard Board practice.
The Board issued its decision on April 29, 2019. The Board denied
Poosikian's appeal, as well as denying his August 2018 enrollment application
on the merits. The Board noted that Poosikian had the option to enroll in PERS
when he first took office on January 1, 2007, but that Haworth submitted no
enrollment application on his behalf until June of 2018. The Board found
Poosikian's 2018 retroactive enrollment to be barred by the enactment of
N.J.S.A. 43:15A-7(d). The Division further noted that the Borough failed to
respond to its 2008 memo request to identify non-veteran elected officials, like
Poosikian, not currently enrolled in PERS.
Poosikian timely appealed the decision, seeking its vacation, or in the
alternative, an administrative hearing.
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The Board issued a Final Administrative Determination dated August 22,
2019. The Board considered the "personal statements" of Poosikian, presumably
at the April 19, 2019 Board hearing, as well as the written submissions and
documents in the record. The Board found no disputed questions of fact and
held Poosikian's enrollment application could be decided without the need for
an administrative hearing. The Board concluded, under N.J.S.A. 43:15A-7(d),
elected officials were barred from enrolling in PERS after July 1, 2007. In its
decision, the Board did not address whether, under these facts, retroactive
enrollment was appropriate using the correction of errors statute, N.J.S.A.
43:15A-54. The Board denied Poosikian's request to vacate the April 29, 2019
decision, and also denied the alternative relief of an administrative hearing.
Poosikian appealed the Final Administrative Determination, and argues
the following before us:
POINT I: PLAINTIFF WAS ELIGIBLE
FOR ENROLLMENT IN PERS ON THE
DATE HE TOOK OFFICE, AND
THE FAILURE OF A MUNICIPAL
OFFICIAL TO ENROLL HIM
REQUIRES THAT RETROACTIVE
ENROLLMENT BE PERMITTED
POINT II: THE CORRECTION OF
ERRORS STATUTE PERMITS
RETROACTIVE ENROLLMENT
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Our role in reviewing the decision of an administrative agency is limited.
In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison,
81 N.J. 571, 579 (1980)). We accord a strong presumption of reasonableness to
an agency's exercise of its statutorily delegated responsibility, City of Newark
v. Nat. Res. Council, 82 N.J. 530, 539 (1980), and defer to its fact finding, Utley
v. Bd. of Review, 194 N.J. 534, 551 (2008). We will not upset the determination
of an administrative agency absent a showing that it was arbitrary, capricious,
or unreasonable; that it lacked fair support in the evidence; or that it violated
legislative policies. Lavezzi v. State, 219 N.J. 163, 171 (2014); Campbell v.
Dep't of Civ. Serv., 39 N.J. 556, 562 (1963).
On questions of law, our review is de novo. In re N.J. Dep't of Env't Prot.
Conditional Highlands Applicability Determination, 433 N.J. Super. 223, 235
(App. Div. 2013) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206
N.J. 14, 27 (2011)). We are "in no way bound by the agency's interpretation of
a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973).
We have held that "N.J.S.A. 43:15A-54 was adopted as a provision for the
correction of errors, both as to the amount of pension benefits and the inclusion
of members erroneously excluded by prior oversights." Burkhart v. Pub. Emps.
Ret. Sys., State, Dep't of Treasury, 158 N.J. Super. 414, 421 (App. Div. 1978).
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The correction of errors statute "should be liberally construed and administered
in favor of the persons intended to be benefited thereby." Cavalieri v. Bd. of
Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 539 (App. Div. 2004) (quoting
Burkhart, 158 N.J. Super. at 423). The statute "is specifically designed to
correct past errors, caused not by the oversight of employees[,] but by that of
employers." Ibid.
We find Poosikian's argument persuasive. The Board's final decision is
properly grounded, in part, in its reading of N.J.S.A. 43:15A-7(d), which
establishes a cutoff date for elected officials to enroll in PERS. However, the
Board gave no discernable consideration to facts in this record which, in our
view, warrant scrutiny under the correction of errors statute, N.J.S.A. 43:15A-
54. Those facts include, but may not limited to, the following:
(1) Poosikian maintained a borough official, Fay,
misinformed him about his PERS eligibility status
during a six-month window when he was eligible to
enroll. He maintained that due to the borough's
mistake, he missed an opportunity for PERS
enrollment, even though he made a timely inquiry;
(2) Borough officials missed a second opportunity to
enroll or at least notify Poosikian about his PERS
eligibility by not responding in 2008, when the
Division contacted Haworth's certifying officer
seeking the names of elected officials not enrolled in
PERS or DCRP at that time; and
(3) Finally, the record shows Poosikian, an attorney at
the time of his first election to council in Haworth,
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delayed a follow-up inquiry regarding his pension
eligibility for over ten years.
We take no position as to whether Poosikian is entitled to enrollment in
PERS. We note that government must "turn square corners" in its dealings with
others, and "comport itself with compunction and integrity." F.M.C. Stores Co.
v. Borough of Morris Plains, 100 N.J. 418, 426 (1985). "[E]ven with respect to
public entities, equitable considerations are relevant in evaluating the propriety
of conduct taken after substantial reliance by those whose interests are affected
by subsequent actions." Skulski v. Nolan, 68 N.J. 179 (1975). We leave it to
the sound discretion of the Board to fully consider and address the factual and
legal issues in the context of N.J.S.A. 43:15A-54, and determine whether an
administrative hearing is warranted on the record below.
Reversed and remanded for the Board's action consistent with the
principles set forth in this opinion. We do not retain jurisdiction.
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