DANNY GLENN VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENTÂ SYSTEM(PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5271-14T1
DANNY GLENN,
Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent.
________________________________________________________________
Submitted February 28, 2017 – Decided July 21, 2017
Before Judges Messano and Espinosa.
On appeal from the Board of Trustees of the
Public Employees' Retirement System,
Department of Treasury.
Danny Glenn, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Robert E. Kelly, Deputy Attorney
General, on the brief).
PER CURIAM
For the period from May 1, 1985 until October 12, 2006,
petitioner Danny Glenn was employed as a Public Works Inspector
for the Township of Irvington (Irvington) and was a member of the
Public Employees' Retirement System (PERS). Pursuant to N.J.S.A.
43:15A-38, an employee who has completed ten years of service but
separates from employment before reaching retirement age may
receive retirement benefits, provided the employee's separation
is "not by removal for cause on charges of misconduct or
delinquency." Petitioner's application for deferred retirement
was denied on that ground and he now appeals from that decision.
We affirm.
I.
In July 2006, Irvington issued a preliminary notice of
disciplinary action seeking petitioner's removal on charges of
incompetency, inefficiency or failure to perform duties, N.J.A.C.
4A:2-2.3(a)(1); insubordination, N.J.A.C. 4A:2-2.3(a)(2);
inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); conduct
unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of
duty, N.J.A.C. 4A:2-2.3(a)(7); and other sufficient cause: false
swearing related to the issuance of summonses and feigning
sickness, N.J.A.C. 4A:2-2.3(a)(11).
The charges were based on allegations that petitioner "issued
improper summonses and was not truthful about his actions; failed
to answer a summons to appear in court; refused to complete and
submit reports; called out sick in order to meet with a contractor
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at his house; was untruthful to his supervisor; and was guilty of
false swearing of summonses."
The hearing officer found all of Irvington's factual
assertions were sustained and recommended petitioner be terminated
from his position as housing inspector. Petitioner appealed to
the Office of Administrative Law (OAL). Following a plenary
hearing, the Administrative Law Judge (ALJ) issued an opinion
sustaining all of Irvington's allegations except the charges of
false swearing and feigning sickness and sustained petitioner's
removal. Although its findings varied somewhat from the ALJ's,
the Civil Service Commission (CSC) adopted the ALJ's
recommendation to uphold petitioner's removal, effective October
12, 2006.1
In February 2014, petitioner filed an application for
deferred retirement. The Board of Trustees of PERS (Board) denied
the application, finding petitioner had been removed "for cause
on charges of misconduct or delinquency," rendering him ineligible
for retirement benefits under N.J.S.A. 43:15A-38.
Petitioner appealed the Board's decision, thereby requesting
a hearing before the OAL. Finding there were no disputed issues
1
Petitioner's appeal from the CSC's determination, Docket No. A-
3094-09T1, was dismissed for failure to prosecute the appeal and
his motion to vacate the dismissal was also dismissed.
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of fact and that the issue was a purely legal question, the Board
denied petitioner's request for a hearing in the OAL and again
concluded N.J.S.A. 43:15A-38 prohibited deferred retirement
benefits to petitioner.
II.
In his appeal, petitioner argues the Board erred in
interpreting N.J.S.A. 43:15A-38 because he "did not commit an act
of 'misconduct' or 'delinquency.'" He contends the behavior that
led to his removal was not criminal, and therefore does not
constitute "misconduct or delinquency" under N.J.S.A. 43:15A-38.
We disagree.
N.J.S.A. 43:15A-38 provides:
Should a member of [PERS], after having
completed 10 years of service, be separated
voluntarily or involuntarily from the service,
before reaching service retirement age, and
not by removal for cause on charges of
misconduct or delinquency, such person may
elect to receive [deferred retirement
benefits.]
[(Emphasis added).]
The plain language of this statute leaves no room for
discretion by the Board: any member removed as a public employee
for charges of misconduct or delinquency is ineligible to receive
benefits from PERS as a matter of law. The terms "misconduct" or
"delinquency" are not defined. There is, however, no support in
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the statute for the interpretation urged by petitioner that the
"charges" must involve acts of criminality, misconduct in office
or egregious conduct.
Significantly, N.J.S.A. 43:15A-17(a) authorizes the Board to
interpret and implement N.J.S.A. 43:15A-38. Courts generally give
deference "to the interpretation of statutory language by the
agency charged with the expertise and responsibility to administer
the scheme . . . 'unless the interpretation is "plainly
unreasonable."'" Acoli v. N.J. State Parole Bd., 224 N.J. 213,
229, 230 (quoting In re Election Law Enf't Comm'n Advisory Op. No.
01-2008, 201 N.J. 254, 262 (2010)), cert. denied, ___ U.S. ___,
137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). "If there is any fair
argument in support of the course taken [by the agency] or any
reasonable ground for difference of opinion among intelligent and
conscientious officials, the decision" should not be disturbed.
Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div.
2015) (alteration in original) (emphasis omitted) (quoting City
of Newark v. Nat. Res. Council in Dep't of Envtl. Prot., 82 N.J.
530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed.
2d 245 (1980)), certif. denied, 227 N.J. 374, and certif. denied
and appeal dismissed, 227 N.J. 380 (2016).
In this case, the CSC relied on recommendations by the OAL
and the CSC's independent evaluation to determine petitioner had
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violated numerous subsections of N.J.A.C. 4A:2-2.3(a) that are
general causes for which an employee is subject to discipline,
including removal. N.J.A.C. 4A:2-2.2(a)(1). The Board concluded
that petitioner's persistent violations of the Administrative Code
constituted "misconduct or delinquency." The Board's
interpretation of those words to include the grounds for which
petitioner was removed is not "plainly unreasonable," and as a
consequence, is entitled to our deference. Petitioner was
therefore properly denied retirement benefits pursuant to N.J.S.A.
43:15A-38.
III.
Petitioner also argues: the final agency decision is
premature, imposes an unduly harsh penalty and subjects him to
double jeopardy; the Board violated his due process rights by
denying him a plenary hearing before the OAL; and his removal in
2006 violated his constitutional rights and the Conscientious
Employees' Protection Act, N.J.S.A. 34:19-1 to -14. These
arguments lack sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.
Petitioner's challenge to his 2006 removal, which would, in
any event, be untimely, is not properly before this court. Because
his appeal from that decision was dismissed, petitioner's argument
that the final agency decision is premature lacks merit. Although
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petitioner presents a legal argument that his conduct did not
constitute "misconduct" or "delinquency" under N.J.S.A. 43:15A-
38, there is no dispute of material fact that the grounds relied
upon for his dismissal were job-related misconduct and
delinquency. As a result, his argument regarding the denial of a
plenary hearing before the OAL also lacks merit.
Affirmed.
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