Makwinski v. State , 76 N.J. 87 ( 1978 )

The opinion of the Court was delivered by

Sullivan, J.

The issue presented in this case is whether a police officer, after 33 years of honorable service, forfeits his right to a pension upon conviction for misconduct in office, which occurred in his 34th year of service.

Appellant Charles L. Makwinski was appointed a.police officer in the Borough of Carteret on May 1, 1937. In 1959, after 22 years of service, he became the Chief of Police in that community and continued in that capacity until the events hereinafter set forth.

On October 10, 1974, Makwinski was indicted for misconduct in office which allegedly occurred between June 1970 and April 1971. In January 1975 he filed an application for retirement under N. J. S. A. 43:16'-1 to be effective March 1, 1975. He went to trial on the criminal charges in March 1975 and on March 11, by jury verdict, was found guilty of the charge. Judgment of conviction for misconduct in office was entered on April 21, 1975 and sentence of a $250 fine without probation was imposed. The judgment recites that there was “no personal gain” involved.

Following a pension hearing, Makwinski’s application for retirement was denied on July 2, 1975 by the Consolidated Police and Firemen’s Pension Fund Commission on the ground that the requisite of “honorable service” had not been met. On appeal, the Appellate Division, although it found the result to be i£harsh,” felt constrained to affirm under existing case law. Makwinski’s further appeal to this Court is by virtue of our grant of certification. 74 N. J. 278 (1977).

Makwinski’s conviction for misconduct in office had this background. He was a member of the Knights of Columbus, a religiously oriented fraternal and charitable organization which owned a building in Carteret. The building was used by the Knights of Columbus for its activities. However, its meeting hall in the building was also lent out free of charge to numerous community groups who used it regularly. They included the Police Benevolent Association, Boy Scouts, Girl Scouts, Police Athletic League, Senior Citizens Groups and the Carteret Jaycees. In addition, the Carteret Police Department and the Middlesex County Prosecutor’s Office used the hall, also without charge, for in-service training extending over periods of six weeks.

In the spring of 1970 a fire damaged a rear portion of the building and meeting hall and Makwinski became chairman of the rebuilding committee. In the course of repairs to the building, a Carteret police officer, Edward Brechka by name, performed some carpentry work on the building. Brechka was not compensated for this work, but some of it was performed while he was on duty as a police officer. Makwinski was aware of the work being done by Brechka and that some of it was being performed “on borough time.” The charge of misconduct is bottomed on Makwinski’s using an employee under his command for private gain at public expense.

The retirement statute under which Makwinski filed his application provides in pertinent part:

* * * [A]ny active member of a police department * * * who shall have served honorably in [such] department for a period of twenty-five years * * * shall, on his own application be retired on a service retirement pension * * *.

The statute does not expressly require that honorable service continue to the date of the application for retirement. Nevertheless, it has been consistently held that even though a person serves honorably for the minimum number of years set forth in the statute no vested property right to a pension accrues. The requirement of honorable service has been held to continue during the entire period of active service. See Plunkett v. Pension Commrs. of Hoboken, 113 N. J. L. 230 (Sup. Ct. 1934), aff’d 114 N. J. L. 273 (E. & A. 1935); Hozer v State, etc., Police & Firemen’s Pension Fund, 95 N. J. Super. 196 (App. Div.), certif. den. 50 N. J. 285 (1967).

The rationale underlying these decisions is that a retirement pension is an inducement to conscientious and efficient public service which inducement would be immeasurably lessened if the employee could assert an indefeasible claim to the pension simply because the dishonorable conduct occurred after the employee had served the minimum number of years of service. Plunkett, supra, 113 N. J. L. at 232; Ballurio v. Castellini, 29 N. J. Super. 383, 389 (App. Div. 1954).

Generally, disenfranchisement of pension rights is found in cases where the criminal conduct touches the administration of the public employee’s office or position, or where the conduct involves moral turpitude. Gauli v. Trustees Police & Firemen’s Ret. Syst., 143 N. J. Super. 480, 482-483 (App. Div. 1976). In Plunkett, supra, a fireman who had served honorably the required minimum years of service was denie'd 'a pension because thereafter ' he had embezzled funds from, the Firemen’s Relief Association. In Hozer, supra, the police officer was convicted of having unlawfully and intentionally, over a five year period, neglected and omitted to perform his public duties with regard to. two bookmaking premises even though he had knowledge of the unlawful activities. Fromm v. Bd. of Dir. of Police etc. Ret. Syst., 81 N. J. Super. 138 (App. Div. 1963) involved the denial of a pension to a police officer .based on his conviction of some 17 charges of altering and downgrading traffic tickets. A city employee was denied retirement on pension in Ballurio, supra, because of his conviction of the crime of abortion, even though he satisfied the statutory requirements of age and service.

The instant case is unique on its facts. The conduct charged to Makwinski did touch the administration of his office. Indeed, his conviction is for misconduct in office. Nevertheless, there was no personal gain involved as the judgment of conviction states, so that the conduct involved cannot be said to' be venal in that sense. The critical question is whether Makwinski’s actions constituted dishonorable service within the intendment of the statute and cases interpreting it with his consequent forfeiture of pension rights. We think not.

The record shows that the meeting hall in the Knights of Columbus building was not only used free of charge by numerous community groups, but also was used without charge by the Carteret Police Department and the Middlesex County Prosecutor’s Office for in-service training activities extending over periods of six weeks. There was testimony that the repair work to the building after the fire was considered a community project and that many persons, members as well as non-members of the Knights of Columbus, “pitched in.”

At the pension hearing it was conceded that Makwinski’s conduct was improper. However, it was contended that his indiscretion was caused by his concern for the community and the betterment of Carteret. We conclude that his motive and intent must be weighed in the balance.

It is asserted on MakwinskPs behalf that while the sentence on his criminal conviction was a $250 fine without probation, he stands to lose pension rights worth more than $150,000 if the ruling of the pension commission is upheld.

In this State misconduct in office is established by showing the willful violation of a prescribed duty. Corrupt motive or intent (mens rea), is not an essential element of the offense. State v. Weleck, 10 N. J. 355 (1952); see State v. Savoie, 67 N. J. 439 (1975). Limiting our ruling to the unique facts and circumstances of this case, our conclusion is that while Makwinski was undoubtedly guilty of misconduct in office, his misguided actions did not involve moral turpitude and cannot be held to be dishonorable service within the intendment of the statute and cases so as to require a forfeiture of his pension rights. State Bd. of Medical Examiners v. Weiner, 68 N. J. Super. 468, 484 (App. Div. 1961), notes “the elasticity of the phrase [moral turpitude] and its necessarily adaptive character, reflective at all times of the common moral sense prevailing throughout the community.” Cf. Tolan v. Murphy, 39 A. D. 2d 197, 333 N. Y. S. 2d 296, 298 (App. Div. 1972).

The judgment of the Appellate Division is reversed and the case remanded to the Pension Eund Commission with directions to grant MakwinskPs application, the amount thereof to be based on his service to June 1970, the date his misconduct in office commenced. While we hold that his actions did not constitute dishonorable service requiring forfeiture of his pension, he may not benefit pension-wise from service constituting misconduct thereafter.