Casey Piatt v. Police and Firemen's Retirement

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5504-12T1
CASEY PIATT, BRUCE DAVIS,
TAMMY DAVIS, MICHAEL CORTES,
JOHN R. FALZONE, MADELINE McKENZIE,
TERRY BOWEN, FRED SIENA, BRUCE
VANMETER, KEVIN CARTER, MARK
APPROVED FOR PUBLICATION
MEZIS, STEVEN DAVIS, FRED
PIERCE, JR., JONATHAN JESTER, November 18, 2015
VINCENT WOODRUFF, EDWARD POMPPER,
ROBERT BROBST, CHESTER OGDEN, APPELLATE DIVISION
BRIAN TRUXTON, DAWN COSSABOON,
ANTHONY MADDEN, JAMES ROSS,
JAMES PITTMAN, JOSE L.
DeLaTORRE, JOHN L. MURRAY,
GREGORY W. WILLIAMS, DENNIS
TURNER, GERALDINE COX, EVA SOOY,
JOSEPH KARKOCHA, LINDA SCYTHES,
ALICE B. POYNTOS, CHARLES BURKHART,
BRIAN HORNER, JAMES SMITH, FARZIN
AFSHARKHAH, JOSEPH RAWS, SAMUEL
CROWE, CHRIS CLINE, RAY DILKS,
FRANK SPENCE, ROBERT W. MUSSO,
RONALD DOWNS, ANNIE STREET, JERE
GRIFFITH, RICARDO S. BASA,
BILLY WHILDON, JOHN CALDWELL,
MICHELLE DEVITO, EDMOND READ,
MICHAEL POLOFF, EDWIN DIAZ,
WAYNE PEARSON, CLYDE KOERNER,
GWENDOLYN STREET, LORENZO L. HARRIS,
BRIAN K. HILL, JAMES H. WILDEN, JR.,
DARLENE HOLT, EDWARD C. LeMATTY, III,
ALFRED PIERCE, RICHARD HAWN, ANGELO
GALARZA, DONNIE TOMLIN, MARVIN L.
JOHNSON, BILL FOWLER, JACK B.
SIMPKINS, DOUG DelCOLLO, RON SLADE,
RICK ROBBINS, WILLIAM WHILDIN, JOE
CAMBURN, DAN HAYES, THOMAS PLUTA,
MARK LATTANZI, MICHAEL SCATES,
DANIEL PIATT, CHRIS LEE, L.
SANFILIPPO, LAWRENCE DUSKI, DENNIS A.
GUNN, RIGOBERTO GONZALEZ, DAVID
PRICE, PAMELA BROWN-DAIRSOW,
PATRICIA WHITE, RANDELL BYERS,
LISA WRIGHT, ALBERT RIVERA, JAMES
HARROLD, GEORGE O. McCONNELL,
LARRY SAUL, GLENN CHAPMAN, ESTTE
KINZEL, ROBERT BRENNER, ISRAEL
REYES, EDWIN M. ZAYAS, EVEANNE M.
STINSON, and FRANK MANTEGNA,
Plaintiffs-Appellants,
v.
POLICE AND FIREMEN'S RETIREMENT
SYSTEM, NEW JERSEY DEPARTMENT
OF CORRECTIONS, and STATE OF NEW
JERSEY,
Defendants-Respondents.
_______________________________________
Argued April 13, 2015 – Decided November 18, 2015
Before Judges Sabatino, Guadagno and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-44-11.
Mario A. Iavicoli argued the cause for
appellants.
Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondents (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Ignatowitz, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
2 A-5504-12T1
Plaintiffs are State corrections officers employed by
defendants, the New Jersey Department of Corrections and the
State of New Jersey (collectively "NJDOC"). NJDOC hired
plaintiffs as corrections officers after they turned thirty-five
years old. As a result, plaintiffs were enrolled in the Public
Employees Retirement System (PERS). Plaintiffs filed a
complaint claiming they should be transferred to defendant, the
Police and Firemen's Retirement System (PFRS), which has
generally higher benefits but which also restricts initial
enrollment to those not over thirty-five. N.J.S.A. 43:16A-3;
N.J.A.C. 17:4-2.5(a). Judge Phillip S. Carchman dismissed
plaintiffs' complaint with prejudice.
Plaintiffs appeal, claiming that the PFRS thirty-five-year
age limitation cannot be applied to State corrections officers.
However, the long history of PFRS makes clear that the
Legislature intends to restrict PFRS membership to a person who
is "not over 35 years" when he or she becomes a "policeman" or
"fireman." N.J.S.A. 43:16A-3. The Legislature has expanded the
definition of "policeman" to include a State corrections officer
and, with only brief exceptions not applicable here, has
mandated that they meet the age requirement for eligibility set
for all PFRS members. That requirement serves the Legislature's
goals of using PFRS's heightened benefits to encourage persons
3 A-5504-12T1
to become officers while young and relatively fit, and to retire
at a relatively early age. Moreover, the PFRS Board, by
regulation, has properly applied this construction of the PFRS
Act for more than forty years. See N.J.A.C. 17:4-2.5(a).
Finally, we reject plaintiffs' constitutional challenges for
substantially the same reasons given by Judge Carchman.
Accordingly, we affirm.
I.
In 2003, plaintiff Casey Piatt and sixty-two other
plaintiffs filed a complaint in federal district court,
challenging the application of the age restriction to
corrections officers under the federal Employee Retirement
Income Security Act (ERISA), 29 U.S.C.A. §§ 1001-1461, the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
and contract law. Akers, et al. v. State of New Jersey, et al.,
Civ. No. 03-3920 (D.N.J.).1 The court dismissed Piatt's ERISA
claim because ERISA did not apply to governmental pension plans,
and dismissed without prejudice his remaining state-law claims.
Ibid. (Aug. 26, 2005).2
1
The court dismissed all plaintiffs except for Piatt for failure
to prosecute their claims after their counsel died while the
federal lawsuit was pending. Ibid. (Jun. 27, 2005).
2
See 29 U.S.C.A. § 1002(32), 1003(b)(1); see also N.J.S.A. 10:5-
2.1 (providing that New Jersey's LAD does not "interfere with
(continued)
4 A-5504-12T1
In 2010, Piatt and ninety-seven other plaintiffs filed a
complaint in the Law Division in Camden County. Plaintiffs
complained that when they were hired as corrections officers by
NJDOC, they were enrolled in PERS rather than PFRS because they
exceeded the maximum age limit for admittance into PFRS. They
claimed the age limit of thirty-five in N.J.S.A. 43:16A-3 and
N.J.A.C. 17:4-2.5(a) did not apply to them and, even if it did,
was arbitrary, capricious, unreasonable, void, and
unconstitutional. They demanded they be transferred into PFRS
retroactive to the first day of their employment, with no
assessment of the additional contributions they would have paid
if they had been in PFRS during that period.
After defendants answered the complaint, the action was
transferred to Mercer County.3 Plaintiffs filed a motion for
partial summary judgment. Defendants filed a cross-motion for
summary judgment.
After hearing two days of oral argument, Judge Carchman
issued a twenty-five-page oral opinion on May 29, 2013. In the
(continued)
the operation of the terms or conditions and administration of
. . . any State or locally administered public retirement
system").
3
Prior to Judge Carchman's involvement, a Law Division judge
dismissed thirty-seven plaintiffs, finding res judicata based on
their dismissal from the federal lawsuit for failure to
prosecute.
5 A-5504-12T1
course of his opinion, Judge Carchman pointed out that the
pension benefits of PFRS are greater than those of PERS in part
because employees must contribute more per paycheck to PFRS than
PERS. The court found at least two reasons why the public
interest would require corrections officers to be appointed
before age thirty-five in order to enroll in PFRS:
First, restricting enrollment in this way
benefits the public fiscally as fewer
individuals are permitted to enroll, and
secondly, and perhaps more importantly, this
restriction benefits public safety as it
provides an incentive for individuals to
become corrections officers earlier in their
career and to be able to retire earlier[,]
allowing for what has been statistically
established as a more fit and higher energy
workforce.
By order dated June 5, 2013, Judge Carchman denied plaintiffs'
motion, granted defendants' motion for summary judgment, and
dismissed the complaint with prejudice.
II.
Plaintiffs appeal the grant of summary judgment. Summary
judgment must be granted if the court determines "that there is
no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law." R. 4:46-2(c); accord Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 539-40 (1995). The summary judgment motions
here addressed the applicability of the age limit in N.J.S.A.
6 A-5504-12T1
43:16A-3, and the validity of the age limit in N.J.A.C. 17:4-
2.5(a). "A ruling on summary judgment is reviewed de novo. We
thus 'apply the same standard governing the trial court,' and do
not defer to the trial court's . . . interpretation of 'the
meaning of a statute'" or the validity of a regulation. Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)
(citations omitted). We must hew to that standard of review.
III.
To properly address plaintiffs' claims, we review the
statutory and regulatory history of the age limit, and of the
inclusion of corrections officers as "policemen" under the PFRS
Act, N.J.S.A. 43:16A-1 to -68.
The PFRS Act was originally adopted in 1944. L. 1944, c.
255. It established a retirement system "for policemen and
firemen." N.J.S.A. 43:16A-2. The PFRS Act originally required
applicants to PFRS to be appointed to their position by age
thirty. Seire v. Police & Fire Pension Comm'n, 6 N.J. 586, 590
(1951); Bashwiner v. Police & Firemen's Ret. Sys., 68 N.J.
Super. 1, 5 (App. Div. 1961). In 1968, that limit was raised to
not over thirty-five years old. Simon v. Bd. of Trs., Police &
Firemen's Ret. Sys., 233 N.J. Super. 186, 190 (App. Div.),
certif. denied, 177 N.J. 652 (1989). Since 1968, the PFRS Act
has provided that "any person becoming a full-time policeman or
7 A-5504-12T1
fireman . . . shall become a member of this retirement system as
a condition of his employment; he will be enrolled provided,
that his age at becoming such full-time policeman or fireman is
not over 35 years[.]" N.J.S.A. 43:16A-3(1).4
The PFRS Act allows the PFRS Board of Trustees to establish
rules and regulations. N.J.S.A. 43:16A-13(a)(7). In 1971, the
PFRS Board of Trustees adopted a regulation, entitled "age
requirements," providing that "[a]pplicants are subject to a
maximum age requirement which is 35 years." N.J.A.C. 17:4-
2.5(a) (1971). Since 1983, the regulation has provided that all
applicants to PFRS "must be appointed to an eligible title on or
prior to their 35th birthday." N.J.A.C. 17:4-2.5(a); see
Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399
N.J. Super. 51, 53 (App. Div. 2008) (applying N.J.A.C. 17:4-
2.5(a)).
The Legislature repeatedly amended the definitions of
"policeman" and "fireman" in N.J.S.A. 43:16A-1 to make
additional titles covered by PFRS. Kossup v. Bd. of Trs.,
Police & Fireman's Ret. Sys., 372 N.J. Super. 468, 475 (App.
Div. 2004). For many years, the definition of "policeman" did
not include State corrections officers. See Koschker v. Bd. of
4
The same limitation appears in N.J.S.A. 43:16A-3(2), which
governs a "county, municipality, or political subdivision
thereof" that adopts PFRS by referendum.
8 A-5504-12T1
Trs., Police & Firemen's Ret. Sys., 233 N.J. Super. 209, 211
(App. Div. 1989). The Legislature passed a supplementary act in
1973 allowing certain State corrections officers to enroll in
PFRS by adding their titles to N.J.S.A. 43:16A-1. See id. at
212 (citing L. 1973, c. 156, § 1); Allen v. Bd. of Trs., Police
& Firemen's Ret. Sys., 233 N.J. Super. 197, 200 (App. Div. 1989)
(same). The 1973 supplementary act also added N.J.S.A. 43:16A-
62, which states:
Eligibility for membership in the Police and
Firemen's Retirement System of New Jersey
shall be extended to all active, permanent
and full-time officer employees of the State
of New Jersey with police powers and holding
one of the titles cited in section 1 of
P.L.1944, c. 255 ([N.J.S.A.] 43:16A-1) who
are otherwise eligible in accordance with
the provisions of this act.
Also under the 1973 supplementary act, State corrections
officers "then enrolled in PERS were offered a one-time
opportunity to transfer their retirement fund membership to PFRS
without cost and without regard to age" if they did so within
ninety days. Koschker, supra, 233 N.J. Super. at 212 (citing L.
1973, c. 156, § 4 (codified at N.J.S.A. 43:16A-63(a))).
The 1973 supplementary act "did not, however, abolish the
35 year entry-age limitation; it was merely suspended. After
the 90 day 'window of opportunity' elapsed, enrollment in PFRS
was again limited to employees 35 years old or younger." Ibid.
9 A-5504-12T1
Indeed, a 1975 amendment to the 1973 supplementary act provided
that:
Each new officer who begins employment
following the effective date of this 1975
amendatory and supplementary act, shall be
required to enroll in the Police and
Firemen's Retirement System of New Jersey as
a condition of employment, provided he is
otherwise eligible for membership by meeting
the appointment, age, and health
prescriptions required of all members.
[N.J.S.A. 43:16A-63(b) (emphasis added).]
A confused period of changing laws and interpretations
followed the application to the States of the federal Age
Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-34.
See Sellers, supra, 399 N.J. Super. at 55-57 & n.1; Koschker,
supra, 233 N.J. Super. at 214-15. However, first temporarily
and then permanently, ibid., Congress amended the ADEA to allow
States to use age as a criteria for hiring "law enforcement
officer[s]." 29 U.S.C.A. § 623(j). This resulted in the
renewed enforcement of the thirty-five-year age limit for
eligibility for PFRS. Sellers, supra, 399 N.J. Super. at 56.
Indeed, in Allen and Koschker, we premised our decisions on
the applicability of the thirty-five-year age limit to
corrections officers. In Allen, we noted that, although Allen
was appointed to a PFRS-eligible position as a State corrections
officer, he "was not age-eligible to join PFRS because employees
10 A-5504-12T1
over 35 were not permitted to join PFRS." Allen, supra, 233
N.J. Super. at 202 (citing N.J.S.A. 43:16A-3).5 In Koschker, we
similarly noted that the plaintiffs' positions as State
corrections officers were made eligible for PFRS in the 1973
supplementary act because they "were over 35 at the time of the
1973 enactment." Koschker, supra, 233 N.J. Super. at 212.
Because the plaintiffs failed to take advantage of the
opportunity provided by the 1973 supplementary act to transfer
into PFRS regardless of age, we held they were ineligible for
PFRS because "enrollment in PFRS was again limited to employees
35 years old or younger." Id. at 218-19.
In 1989, the Legislature "eliminated the prior definition
of policeman [under N.J.S.A. 43:16A-1] which consisted of a list
of diverse job titles, and replaced it with 'prescribed
fundamental criteria.'" Matter of Eligibility of Certain
Assistant Union County Prosecutors to Transfer to PFRS under
N.J.S.A. 43:16A-1 et seq., 301 N.J. Super. 551, 559 (App. Div.
1997) [hereinafter "Prosecutors"] (quoting Senate State Gov't
Comm., Statement to S. 2602, at 1 (June 23, 1988)). The 1989
amendment rewrote N.J.S.A. 43:16A-1 to provide only two eligible
5
Because Allen was appointed during one of the periods where the
age limit was considered invalid under the ADEA, he was entitled
to relief provided such persons under the former N.J.A.C. 17:1-
12.7. Allen, supra, 233 N.J. Super. at 208-09; see Simon,
supra, 233 N.J. Super. at 191.
11 A-5504-12T1
titles, "policeman" and "fireman." N.J.S.A. 43:16A-2(a)(2).
The 1989 amendment also made clear that to be a "member" of
PFRS, a person had to be a "policeman or fireman included in the
membership of the retirement system pursuant to this amendatory
and supplementary act." N.J.S.A. 43:16A-1(3).6
The 1989 amendment provided a functional definition of a
"policeman" which logically if not explicitly would include a
State corrections officer:
"Policeman" shall mean a permanent, full-
time employee of a law enforcement unit as
defined in section 2 of P.L.1961, c.56
(C.52:17B-67) or the State, other than an
officer or trooper of the Division of State
Police whose position is covered by the
State Police Retirement System, whose
primary duties include the investigation,
apprehension or detention of persons
suspected or convicted of violating the
criminal laws of the State and who:
(i) is authorized to carry a firearm
while engaged in the actual performance of
his official duties;
(ii) has police powers;
(iii) is required to complete
successfully the training requirements
prescribed by P.L.1961, c.56 (C.52:17B-66 et
seq.) or comparable training requirements as
determined by the board of trustees; and
6
The 1989 amendment also required the Board to "review the
positions of all members" to determine if each "position shall
continue to be covered under the retirement system based upon
the definitions of 'policeman' and 'fireman' in this act."
N.J.S.A. 43:16A-1.2(a), (b).
12 A-5504-12T1
(iv) is subject to the physical and
mental fitness requirements applicable to
the position of municipal police officer
established by an agency authorized to
establish these requirements on a Statewide
basis, or comparable physical and mental
fitness requirements as determined by the
board of trustees.
[N.J.S.A. 43:16A-1(2)(a) (emphasis added).]
Finally, the 1989 amendment made clear that "[n]othing in
this amendatory and supplementary act shall be construed as
authorizing" the "enrollment in the retirement system of any
person who was ineligible for membership" previously. N.J.S.A.
43:16A-1.2(c).
The 1989 amendment "was part of a series of amendatory laws
intended to increase the retirement allowance of police officers
and firefighters[,] and restrict and reduce membership in PFRS"
to pay for those increased benefits. Prosecutors, supra, 301
N.J. Super. at 559. To meet that goal, the Legislature stressed
the importance of the requirement that persons seeking to enroll
in PFRS be appointed by the age of thirty-five:
The articulated objective was to encourage
police officers and firefighters to
"retire[] at a younger age, in order to
protect the public." It was said in the
legislative hearings that police officers
and firefighters were to be given enhanced
benefits "because the nature of [their]
duties . . . requir[ed] a level of physical
attributes [and energy] which [are] found,
statistically speaking, among younger
members." The underlying idea was to
13 A-5504-12T1
"facilitate" early retirement and "turnover
within the system" by "giv[ing] better
benefits."
[Id. at 559-60 (quoting Hearing on S. 2602
Before the Assembly State Gov't Comm., 203rd
Legis., 2d Sess., at 18 (Feb. 6, 1989)
(Statement of Douglas Forrester, Director,
Div. of Pensions)) (alterations in
original).]
We have found that the 1989 amendment's "acknowledged
purpose [was] to restrict eligibility and to reserve to the
young and the fit active roles in police and firefighter
activities." Id. at 560. Indeed, the 1989 amendment, like the
1973 supplementary act, required that a person employed in a
position subsequently "covered by the retirement system is
required to enroll in the retirement system as a condition of
employment, provided the person is otherwise eligible for
membership by meeting the appointment, age and health
requirements prescribed for all members." N.J.S.A. 43:16A-
1.2(b) (emphasis added); see N.J.S.A. 43:16A-63(b).
In 1993, the Legislature passed another supplementary act
providing that "any correction officer . . . employed on the
effective date of this supplementary act in the Department of
Corrections who is enrolled in PERS" was "eligible, regardless
of age," to "transfer membership from PERS to PFRS . . . by
waiving, within 90 days of the effective date of this
supplementary act, all" PERS benefits. N.J.S.A. 43:16A-3.8(a),
14 A-5504-12T1
(a)(4), (b). "If an eligible person does not file a timely
waiver of PERS benefits, the person's pension status shall
remain unchanged and the person's membership shall not be
transferred to PFRS." N.J.S.A. 43:16A-3.8(b).
This 1993 supplementary act was an exception that proves
the rule governing current State corrections officers such as
plaintiffs. The language and history of the PFRS Act shows that
the thirty-five-year age limit long enshrined in N.J.S.A.
43:16A-3 and N.J.A.C. 17:4-2.5(a) applies to all persons
eligible for PFRS because they fall within N.J.S.A. 43:16A-1's
definitions of "policeman" and "fireman." That includes State
corrections officers, as we indicated in Allen and Koschker.
IV.
Plaintiffs argue that there is no statute that explicitly
requires that State corrections officers, when appointed, must
be no older than thirty-five to be eligible for PFRS. To the
contrary, that limitation is set forth in the same operative
provision of the PFRS Act which makes any qualifying person "a
member in this retirement system," namely N.J.S.A. 43:16A-3.
As set forth above, PFRS pensions are available only to a
"policeman or fireman." N.J.S.A. 43:16A-3; see N.J.S.A. 43:16A-
2 (creating a retirement system for "policemen and firemen").
Because N.J.S.A. 43:16A-3 only allows a person to enroll in PFRS
15 A-5504-12T1
"provided, that his age at becoming such full-time policeman or
fireman is not over 35 years," a State corrections officer is
barred by statute from enrolling unless he meets that limit.
Plaintiffs argue that they are law enforcement employees,
and that it is "[t]he definition of 'policeman' in N.J.S.A.
43:16A-1(2) [which] identifies those law enforcement employees
who are to be admitted to the PFRS." N.J.S.A. 43:16A-1(2) does
identify which persons hold a position that is eligible for
admission to PFRS. Ibid. (providing, after the 1989 amendment,
only two eligible titles: "policeman" and "fireman"); see also
N.J.S.A. 43:16A-62 (requiring that a State officer must be
"holding one of the titles cited in" N.J.S.A. 43:16A-1 to be
eligible for PFRS). However, it is N.J.S.A. 43:16A-3 that
provides that a "policeman or fireman . . . shall become a
member of this retirement system." Thus, a State corrections
officer, like any other "policeman," must meet the age
requirement of N.J.S.A. 43:16A-3 to be enrolled in PFRS.
Moreover, both the 1975 and 1989 amendments expressly
provided that each new officer must be "otherwise eligible for
membership by meeting the . . . age . . . requirements
prescribed for all members." N.J.S.A. 43:16A-1.2(b); see
N.J.S.A. 43:16A-63(b). Both the 1993 amendment and the 1973
supplementary act confirmed that the age limit applies to State
16 A-5504-12T1
corrections officers by providing one-time exceptions allowing
"any correction officer . . . in the Department of Corrections"
to transfer to PFRS "regardless of age." N.J.S.A. 43:16A-
3.8(a)(4), (b); see Koschker, supra, 233 N.J. Super. at 212. As
Judge Carchman found, these provisions "indicate a legislative
intent" that the thirty-five-year-old age limit applies "to a
broader swath of PFSR individuals than local police and
firemen."
Plaintiffs cite language in N.J.S.A. 43:16A-3(1) that
provides PFRS membership to any person who is a full-time
policeman or fireman "in a county or municipality or fire
district located in a township," without mentioning State
officers. N.J.S.A. 43:16A-3(1). However, the Legislature has
not opted to change who is eligible for PFRS by amending the
quoted language from N.J.S.A. 43:16A-3, which has gone unchanged
since 1944. See Seire, supra, 6 N.J. at 590. Rather, as set
forth above, the Legislature has chosen to change who is
eligible for PFRS membership by amending the definitions of
"policeman" and "fireman" in N.J.S.A. 43:16A-1.
The Legislature repeatedly, over many decades, added State
job titles to those definitions, and then in 1989 included any
law enforcement employee of "the State" as a "policeman," and
any employee of a firefighting unit of "the State" as a
17 A-5504-12T1
"fireman." N.J.S.A. 43:16A-1(2)(a), (b). To read N.J.S.A.
43:16A-3 to apply only to a "policeman" or "fireman" employed by
a county, municipality, or fire district would improperly render
all of those amendments a nullity. State v. Terry, 218 N.J.
224, 237 (2014). "[I]t is well-established that a statute
should not be construed in a manner that renders any portion of
it a nullity." Smith v. Dir., Div. of Taxation, 108 N.J. 19, 27
(1987).
We cannot ignore the Legislature's inclusion of State
employees in the definition of "policeman" and "fireman" in
N.J.S.A. 43:16A-1(2), and the Legislature's use of those defined
terms to determine membership in PFRS under N.J.S.A. 43:16A-
3(1). While it would have been clearer for the Legislature also
to add the words "the State" to the quoted language in N.J.S.A.
43:16A-3 to reflect the addition of State employees through the
defined terms, the absence of those clarifying words cannot
thwart the Legislature's obvious intent to include eligible
State officers as members in PFRS, provided they meet its
criteria.
Thus, we read N.J.S.A. 43:16A-3(1) to include as members of
PFRS all qualified persons who fall within the definition of
"policeman" and "fireman" in N.J.S.A. 43:16A-1(2), whether they
are employed by the State, county, municipality, or fire
18 A-5504-12T1
district in a township. This reading prevents from being
surplusage the language in N.J.S.A. 43:16A-1(2) including State
officers within those definitions.
Moreover, our reading does not render redundant the quoted
language in N.J.S.A. 43:16A-3(1), because it differentiates its
two subsections. N.J.S.A. 43:16A-3(1) makes PFRS membership
available in "a county or municipality or fire district located
in a township" where a pension for policemen and firemen had
been established "prior to the date [the PFRS] act takes
effect," whereas N.J.S.A. 43:16A-3(2) makes PFRS membership
available in "any county, municipality or political subdivision
thereof" where the PFRS act subsequently becomes effective
pursuant to a referendum.
"'When interpreting different statutory provisions, we are
obligated to make every effort to harmonize them, even if they
are in apparent conflict.'" St. Peter's Univ. Hosp. v. Lacy,
185 N.J. 1, 14 (2005) (quoting In re Gray-Sadler, 164 N.J. 468,
485 (2000) (finding one statute's instruction to provide a
benefit qualified by a proviso in another statute)). We have
"'an affirmative duty to reconcile them, so as to give effect to
both expressions of the lawmakers' will.'" Ibid. (citation
omitted).
19 A-5504-12T1
Here, for more than seventy years, it has been the purpose
of the PFRS Act to restrict membership to a person becoming a
"policeman" or "fireman" when they are youthful, and currently
"not over 35 years." N.J.S.A. 43:16A-3(1). The Legislature has
been constant in enforcing that rule, with only brief exceptions
when it allowed short windows for transfer when PFRS was
extended to new classes of employees under the 1973, 1989, and
1993 supplementary acts.
The obvious reasons for restricting the age of enrollment
were reiterated by the Legislature in its 1989 amendment, which
incorporated State corrections officers into the current
definition of "policeman." The Legislature's "acknowledged
purpose [was] to restrict eligibility and to reserve to the
young and the fit active roles in police and firefighter
activities." Prosecutors, supra, 301 N.J. Super. at 560
(upholding the exclusion of assistant county prosecutors from
PFRS).
The Legislature's purpose is achieved by reading the
Legislature's acts and amendments as making eligible for PFRS
only those persons who become State corrections officers when
they are not over thirty-five. As Judge Carchman observed, the
Legislature imposed this requirement to encourage persons to
become State corrections officers when they have "'a level of
20 A-5504-12T1
physical attributes [and energy] which [are] found,
statistically speaking, among younger members.'" Id. at 559
(quoting Hearing on S. 2602 Before the Assembly State Gov't
Comm., 203rd Legis., 2d Sess., at 18 (Feb. 6, 1989) (Statement
of Douglas Forrester, Director, Div. of Pensions)). Thus
encouraging persons to start their career as State corrections
officers earlier also serves "to 'facilitate' early retirement
and 'turnover within the system.'" Id. at 560 (same). See
N.J.S.A. 43:16A-5 (permitting PFRS members to retire at age
fifty-five if they have twenty or more years of service). 7
Finally, by restricting PFRS benefits to those who become State
corrections officers earlier in life, it restricts eligibility,
thus both "'protect[ing] the public'" fiscally and "giv[ing]
better benefits" to those persons who begin their service at a
younger age. Id. at 559-60 (same).
Plaintiffs argue that municipal firefighters and police
officers cannot be hired if they are "over 35 years of age,"
N.J.S.A. 40A:14-12, -127, and that they have more vigorous jobs
than corrections officers, who can be hired without such an age
restriction. However, those arguments support refusing to make
all corrections officers eligible for PFRS, and restricting PFRS
7
Plaintiffs note PFRS members are not required to retire until
they turn sixty-five. N.J.S.A. 43:16A-5(1). That does not
alter the legislative purpose to encourage earlier retirement.
21 A-5504-12T1
eligibility to those persons who become corrections officers at
a young age, bringing to the position the youthful vitality for
which PFRS's higher benefits provide compensation, and
encouraging the early retirement and turnover that PFRS seeks to
elicit. Moreover, the Legislature can chose to limit PFRS
eligibility even if it does not preclude the hiring of older
persons.
Finally, plaintiffs argue that excluding from PFRS those
persons who become State corrections officers when over thirty-
five is contrary to the requirement that a "policeman" or
"fireman" become a member of PFRS "as a condition of his
employment." N.J.S.A. 42:16A-3(1). However, the Legislature
qualified that phrase in N.J.S.A. 42:16A-3(1) with the proviso
that "his age at becoming such full-time policeman or fireman is
not over 35 years." Ibid. The Legislature similarly qualified
the "condition of his employment" phrase in N.J.S.A. 43:16A-
1.2(b) and -63(b) with the proviso that "the person is otherwise
eligible for membership by meeting the . . . age" requirements.
Ibid. As we stated in Allen, a person who becomes a State
corrections officer after age thirty-five, "[a]lthough job-
22 A-5504-12T1
eligible, [is] not age eligible" for PFRS. Allen, supra, 233
N.J. Super. at 208.8
V.
"Our construction of the statute is also supported by the
long-standing administrative practice and interpretation of the
Division of Pensions." Prosecutors, supra, 301 N.J. Super. at
561. For more than four decades, the PFRS Board's regulation
interpreting these statutes has provided that all applicants for
PFRS membership must be no older than thirty-five. N.J.A.C.
17:4-2.5(a). The Board's longstanding regulation that
applicants "must be appointed to an eligible title on or prior
to their 35th birthday," ibid., adopts the interpretation which
best fits the statutory history, language, and purpose, as set
forth above. The Board's interpretation particularly accords
with the Legislature's directions in the 1975 and 1989
amendments that a person in a position covered by PFRS is
eligible for PFRS only if the person meets the "age"
requirements prescribed "for all members." N.J.S.A. 43:16A-
1.2(b); N.J.S.A. 43:16A-63(b).
8
Because we find persons who become State corrections officers
over age thirty-five are statutorily ineligible for membership
in PFRS, we need not address defendants' argument that this
interpretation is also supported by consideration of mandatory
retirement ages.
23 A-5504-12T1
"'An administrative agency's interpretation of a statute it
is charged with enforcing is entitled to great weight.'"
Prosecutors, supra, 301 N.J. Super. at 561 (quoting In re Saddle
River, 71 N.J. 14, 24 (1976)); accord In re Freshwater Wetlands
Prot. Act Rules, 180 N.J. 415, 431 (2004). "'[W]e must give
great deference to an agency's interpretation and implementation
of its rules enforcing the statutes for which it is
responsible.'" St. Peter's, supra, 185 N.J. at 13 (quoting In
re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489
(2004)). Such deference has been specifically extended to state
agencies that administer pension statutes. See, e.g.,
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192
N.J. 189, 196 (2007). "This deference comes from the
understanding that a state agency brings experience and
specialized knowledge to its task of administering and
regulating a legislative enactment within its field of
expertise." In re Election Law Enf't Comm'n Advisory Op. No.
01-2008, 201 N.J. 254, 262 (2010) (citing Kasper v. Bd. of Trs.
of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 580-81
(2000)).
Our deference is even greater because the Board has
followed this interpretation for more than four decades. "Such
continued interpretation and practice by the agency which
24 A-5504-12T1
administers a statute is entitled to great weight." Szczepanik
v. State, Dept. of Treasury, Div. of Pensions, Public Emps.'
Ret. Sys., 232 N.J. Super. 491, 504 (App. Div. 1989). Moreover,
"the fact that the Legislature has not acted in response to an
agency's interpretation or practice is 'granted great weight as
evidence of its conformity with the legislative intent.'" Klumb
v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist.,
199 N.J. 14, 24-25 (2009) (citation omitted). Indeed, as Judge
Carchman pointed out, the regulation's age limit "has been
impliedly accepted by the Legislature in its temporary
suspension[s] of the age limit" in 1973, 1989, and 1993. We
give "'great weight'" to "the Legislature's apparent
acquiescence" in, and "longstanding acceptance" of, the Board's
interpretation. Matturri v. Bd. of Trs. of the Judicial Ret.
Sys., 173 N.J. 368, 382 (2002) (citation omitted).
Plaintiffs challenge the validity of the Board's
regulation. However, "regulations promulgated by an agency in
furtherance of a statutory scheme it is charged with enforcing
are presumed to be valid." Election Law Enf't Comm'n, supra,
201 N.J. at 262. "'[T]he agency's interpretation of the
operative law is entitled to prevail, so long as it is not
plainly unreasonable.'" Prosecutors, supra, 301 N.J. Super. at
25 A-5504-12T1
561 (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J.
313, 327 (1984)).
Plaintiffs claim that N.J.A.C. 17:4-2.5(a)'s thirty-five-
year limitation is invalid because it is inconsistent with
N.J.S.A. 43:16A-3.6. That section is part of an amendment
effective in 1984 which added "county sheriff" to the now-
deleted list of titles in N.J.S.A. 43:16A-1, and "permit[ted] an
incumbent county sheriff to transfer from PERS to PFRS under
some circumstances." Simon, supra, 233 N.J. Super. at 188
(citing L. 1983, c. 439). That amendment allowed such a
transfer within ninety days by "[a]ny officer eligible to become
a member pursuant to the amendatory provisions of this act."
N.J.S.A. 43:16A-3.7. One eligibility requirement for such
transfer was that "[n]o county sheriff shall qualify for
membership in [PFRS] pursuant to this amendatory and
supplementary act if he has reached the age of 37 years on the
date of his application for membership." N.J.S.A. 43:16A-3.6.
We have already found that the 1984 amendment only created
"a 37-year entry-age on transferees from PERS during the 90-day
period allowed by N.J.S.A. 43:16A-3.7," and that the "general
35-year entry-age limit on membership for new employees" in
N.J.S.A. 43:16A-3 would govern henceforth. Simon, supra, 233
N.J. Super. at 190. Thus, N.J.S.A. 43:16A-3.6 is just another
26 A-5504-12T1
one-time transfer provision. It provides no basis for
invalidating the otherwise-applicable thirty-five-year limit
under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a).
Therefore, as Judge Carchman ruled, "N.J.A.C. 17:4-2.5 must
be recognized as reasonable and entitled to deference." As
plaintiffs note, "'administrative regulations are not binding on
the courts,'" St. Peter's, supra, 185 N.J. at 15 (citation
omitted), and
the deference afforded regulations does not
go so far as to permit an administrative
agency under the guise of an administrative
interpretation to give a statute any greater
effect than is permitted by the statutory
language. Nor can agency regulations alter
the terms of a legislative enactment or
frustrate the policy embodied in the
statute. If a regulation is plainly at odds
with the statute, the court must set it
aside.
[Lourdes Med. Ctr. of Burlington Cty. v. Bd.
of Review, 197 N.J. 339, 376 (2009)
(citation omitted).]
However, plaintiffs have not carried their "'burden of proving
the rule is at odds with the statute.'" St. Peter's, supra, 185
N.J. at 13 (citation omitted). Indeed, N.J.A.C. 17:4-2.5(a) is
"entirely consistent with the statutory scheme," and precludes
plaintiffs' demand for eligibility under the PFRS Act. Id. at
17. It is plaintiffs' argument, not the regulation, that seeks
27 A-5504-12T1
to "extend [the PFRS] statute to include persons not intended."
See Serv. Armament Co. v. Hyland, 70 N.J. 550, 563 (1976).
VI.
Plaintiffs also contend that the thirty-five-year
limitation violates the Equal Protection Clause of the United
States and New Jersey Constitutions. However, "age is not a
suspect classification under the Equal Protection Clause."
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631,
646, 145 L. Ed. 2d 522, 542 (2000) (citing Gregory v. Ashcroft,
501 U.S. 452, 470, 111 S. Ct. 2395, 2406, 115 L. Ed. 2d 410, 430
(1991)); Boylan v. State, 116 N.J. 236, 250 (1989), cert.
denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778
(1990). "Nor is the right to membership in PFRS rather than in
PERS a fundamental right." Simon, supra, 233 N.J. Super. at
197. Thus, "States may discriminate on the basis of age without
offending the Fourteenth Amendment if the age classification in
question is rationally related to a legitimate state interest."
Kimel, supra, 528 U.S. at 83, 120 S. Ct. at 645, 145 L. Ed. 2d
at 542; In re C.V.S. Pharm. Wayne, 116 N.J. 490, 502 (1989).
As Judge Carchman found, granting increased pension
benefits to persons who become corrections officers when thirty-
five years old or younger has a rational basis. See Boylan,
supra, 116 N.J. at 250-51. We reject plaintiffs' constitutional
28 A-5504-12T1
claims substantially for the reasons set forth in Judge
Carchman's thorough opinion.
Plaintiffs argue that turning thirty-five has not prevented
them from being hired or performing their duties. Nonetheless,
the Legislature could rationally have chosen to encourage
younger persons to become State corrections officers with the
incentive of a more generous pension.
Accordingly, Judge Carchman's grant of summary judgment was
proper, because it is appropriate and constitutional for
N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a) to limit PFRS
eligibility to persons who become State corrections officers
when they are not over thirty-five years old.9
Affirmed.
9
Therefore, we need not address the merits of plaintiffs' claim
that res judicata did not justify the dismissal of thirty-seven
plaintiffs by the Law Division based on their dismissal from the
federal lawsuit. Even if the dismissal by the Law Division was
inappropriate, summary judgment would also have been granted
against those plaintiffs for the reasons set forth above.
29 A-5504-12T1