Eyers v. PUBLIC EMPLOYEES'RETIREM. SYS. , 91 N.J. 51 ( 1982 )

O’HERN, J.,

dissenting.

My reasons for dissenting in Uricoli v. Bd. of Trustees, Police and Firemen’s Retirement System, 91 N.J. 62 (1982), decided today, are equally applicable here. Misconduct in office involving dishonorable service should result in a forfeiture of vested pension rights. There are two factual differences here. The misconduct was not discovered until the employee was already receiving retirement benefits, and he died during the pendency of proceedings to terminate the benefits.

As to the former, it is settled that the grant of a pension is neither final nor conclusive and is subject to reconsideration by the granting authority in an appropriate case. Ruvoldt v. Nolan, 63 N.J. 171, 183 (1973); Mount v. Trustees of Pub. Emp. Retirement System, 133 N.J.Super. 72 (App.Div.1975).

As to the latter, although my natural sympathies would welcome a widow’s benefit, there is no logical way to sustain the result. In my view, decedent would have forfeited his pension rights had he lived. The fact that he died before the hearing does not alter that result.

Appellant’s claim of survivorship benefits is based upon her husband’s selection of “Option 2” of retirement benefits under N.J.S.A. 43:15A-50, which provides:

[A]t the time of his retirement a member ... may . .. elect to receive the actuarial equivalent of his retirement allowance, in a lesser retirement allowance, payable throughout life, with the provision that:

Option 2. Upon his death, his retirement allowance shall be continued throughout the life of and paid to such person as he shall nominate by written designation duly acknowledged and filed with the retirement system at the time of his retirement. [Emphasis added].

The language of this provision is clear. A decedent’s benefits are to be continued as before with the payment going instead to a different beneficiary. This assumes that the retirant was entitled to receive the pension benefits. Failing that, there are no payments to be continued.

A dependent beneficiary has no greater right to a pension than the member who designated the beneficiary. It has been said in Plunkett v. Pension Comm’rs of Hoboken, 113 N.J.L. 230, 233-34 (Sup.Ct.1934), aff’d o. b., 114 N.J.L. 273 (E. & A. 1935):

[D]eductions from the salaries of governmental employes, by the authority of the government for the support of a pension fund, create no contractual or vested right between such employes and the government and neither the employes, nor those claiming under them, have any rights except such as are conferred by the statute governing the fund. [Emphasis added].

The Court’s reliance on N.J.S.A. 43:1-2 is misplaced. That statute requires that payments to pensioners convicted of crimes involving moral turpitude be suspended during the period of confinement. Notwithstanding this suspension requirement, the statute permits payments to continue where necessary for the maintenance of the imprisoned pensioner’s wife, children or parents. Thus, the central purpose of the statute, prevention of double payments to incarcerated pensioners already being maintained at public expense, is tempered by a concern for the pensioner’s dependents.

N.J.S.A. 43:1-2 offers no useful analogy to this case. That statute assumes an offense committed after the termination of honorable service and mandates temporary suspension of benefits during confinement. Salley v. Firemen’s & Policemen’s, &c., Commission, 124 N.J.L. 79 (Sup.Ct.1940). Here, by contrast, decedent was found guilty of official misconduct which rendered his service dishonorable.

The Court concludes that the Legislature’s demonstrated concern for the welfare of those dependent on public employees indicates a legislative intent that survivorship benefits be continued in cases such as appellant’s. In support of this position appellant cited two cases in which widows were awarded pension benefits despite suspicious circumstances surrounding the death of their respective husbands. In Bederski v. Policemen’s and Firemen’s Pension Board of City of Newark, 4 N.J.Misc. 637 (Sup.Ct.1926), aff’d, 104 N.J.L. 163 (E. & A. 1927), it was alleged that an off-duty policeman had been killed while engaging in unlawful activity. Angersbach v. South River Police Pension Commission, 122 N.J.L. 1 (E. & A. 1939) involved a suspected suicide. In neither case was there anything more than a suspicion of criminal acts. No criminal conduct was ever proved or charged. Those cases are not persuasive in a situation such as this in which the decedent was convicted of a crime. Ballurio v. Castellini, 29 N.J.Super. 383, 392 (App.Div.1954).

The Court further cites N.J.S.A. 43:15A-49 as support for appellant’s claim. That section provides that the spouse or other dependents of a public employee killed in public service receive a pension of 50% of salary and a lump sum benefit of one and one-half times salary. Appellant’s husband did not meet an accidental death in pursuit of his duties as plumbing inspector. The special legislative concern for the dependents of employees who have lost their lives in the line of duty therefore does not apply.

Nor does N.J.S.A. 43:15A-50, which, in allowing selection of options on retirements, includes widows “in the group of people to be benefited,” demonstrate a special legislative concern for widows as such. Obviously, if a retirant designates his wife as his beneficiary, at his death she, now his widow, will benefit. Any entitlement, however, comes from her status as designated beneficiary, not widow. It presupposes that the retirant himself was entitled to receive the pension benefits. Here, since decedent’s dishonorable conduct divested him of his right to a public pension, I fail to understand how he could leave any survivor-ship benefits based thereon.

While this result might create a hardship for an innocent beneficiary who was an undoubted life partner of the public employee, it would be an equal hardship to another widow similarly situated if her husband had lived to see his benefits forfeited before his death. She would then be without support while appellant would be receiving a regular pension benefit, a demonstrably unconscionable result. Under our pension laws both benefits and loss of benefits should be dispensed with an even hand. The employee’s conduct is the deciding factor. It must be treated equally for all. I would affirm the decision below.

Chief Justice WILENTZ and Justice CLIFFORD join in this opinion.

PASHMAN and SCHREIBER, JJ., concurring in the result.

For reversal and remandment — Justices PASHMAN, SCHREIBER, HANDLER and POLLOCK — 4.

For affirmance — Chief Justice WILENTZ and Justices CLIFFORD and O’HERN — 3.