CHRISTOPHER LYNCH VS. BOARD OF TRUSTEES (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-2586-17T1
CHRISTOPHER LYNCH,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
Argued June 4, 2019 – Decided June 25, 2019
Before Judges Messano and Rose.
On appeal from the Board of Trustees, Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-88180.
Samuel J. Halpern argued the cause for appellant.
Amy Chung, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Porter Ross Strickler,
Deputy Attorney General, on the brief.)
PER CURIAM
Christopher Lynch appeals from a January 9, 2018 final decision of the
Board of Trustees (Board) of the Police and Firemen's Retirement System
(PFRS), imposing a total forfeiture of his pension service and salary credit due
to misconduct, and concluding Lynch was ineligible to apply for accidental
disability retirement benefits (ADRB) because the terms of a settlement
agreement with his employer prohibited his return to work. We affirm.
I.
We commence our review with a discussion of the governing legal
principles to give context to the Board's decision, recognizing "[o]ur review of
administrative agency action is limited." Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts presume the
validity of the "administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For those reasons,
we will not overturn an agency decision "unless there is a clear showing that it
is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." Stein v. Dep't of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div.
2019) (quoting J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017)). Nor will
we overturn an agency decision merely because we would have come to a
A-2586-17T1
2
different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). We are not,
however, bound by the "agency's interpretation of a statute or its determination
of a strictly legal issue." Richardson v. Bd. of Trs., Police & Firemen's Ret.
Sys., 192 N.J. 189, 196 (2007).
A public employee must provide "honorable service" to receive pension
or retirement benefits. N.J.S.A. 43:1-3(a); N.J.A.C. 17:1-6.1(a); see also
Corvelli v. Bd. of Trs., Police & Firemen's Ret. Sys., 130 N.J. 539, 550 (1992)
(noting all of New Jersey's public pension statutes have an implied requirement
of honorable service, and forfeiture can be ordered for employees who violate
that requirement). The Board is authorized to order forfeiture, in who le or in
part, "for misconduct occurring during the member's public service which
renders the member's service or part thereof dishonorable." N.J.S.A. 43:1 -3(b);
N.J.A.C. 17:1-6.1(a), (c). Ordinarily, to require forfeiture of the portion of a
member's pension that accrued prior to the criminal activity, the Board must find
that the misconduct was related to the member's service. Masse v. Bd. of Trs.,
Pub. Emps.' Ret. Sys., 87 N.J. 252, 263 (1981). Nevertheless, forfeiture is not
limited to misconduct resulting in a criminal conviction. Corvelli, 130 N.J. at
552. Rather, "[t]he term 'honorable service' . . . is sufficiently generic to
A-2586-17T1
3
encompass a broad range of misconduct bearing on the forfeiture decision,
including but not limited to criminal conviction." Ibid.Forfeiture of a public employee's pension is governed by the factors
enumerated by our Supreme Court in Uricoli v. Police & Firemen's Retirement
System, 91 N.J. 62, 77-78 (1982), and codified in N.J.S.A. 43:1-3(c):
(1) the member's length of service; (2) the basis for
retirement; (3) the extent to which the member's
pension has vested; (4) the duties of the particular
member; (5) the member's public employment history
and record covered under the retirement system; (6) any
other public employment or service; (7) the nature of
the misconduct or crime, including the gravity or
substantiality of the offense, whether it was a single or
multiple offense and whether it was continuing or
isolated; (8) the relationship between the misconduct
and the member's public duties; (9) the quality of moral
turpitude or the degree of guilt or culpability, including
the member's motives and reasons, personal gain and
similar considerations; (10) the availability and
adequacy of other penal sanctions; and (11) other
personal circumstances relating to the member which
bear upon the justness of forfeiture [(statutory or
Uricoli factors)].
Of particular relevance here, the Board may attribute more weight to factors
seven, eight, and nine, when applicable. See Corvelli, 130 N.J. at 552-53(holding total pension forfeiture "was justified by . . . application of Uricoli
factors seven, eight, and nine").
A-2586-17T1
4
II.
Applying those legal standards to the present case, we turn to the pertinent
facts and procedural history, which are largely undisputed. Lynch was hired by
the Sussex County (County) Sheriff's Office (SCSO) as a corrections officer,
and established membership in the PFRS in 1999. During the course of his
employment, Lynch received several commendations and achievements. He
was promoted to sergeant in 2008, and then to lieutenant in 2011.
In February 2015, however, the SCSO issued a Preliminary Notice of
Disciplinary Action (PNDA) charging Lynch with violations of various
administrative rules, including failure to perform his duties. The charges
stemmed from an internal affairs investigation of an inmate's possession of a
cell phone, contrary to the jail's regulations. As the commanding officer on
duty, Lynch failed to ensure the inmate was properly searched when he was
readmitted to the jail from a hospital. Lynch also failed to take appropriate
action after receiving conflicting reports about the inmate's claim he had a
catheter.
In April 2015, another internal affairs investigation revealed Lynch had
purchased steroids for personal use from a corrections officer. Lynch apparently
knew about the officer's use and distribution of illegal narcotics for more than
A-2586-17T1
5
one year. Following a positive drug test, the SCSO issued a PNDA to Lynch
charging him with various administrative violations, including failure to
perform his duties, insubordination, and conduct unbecoming a public
employee. Lynch was suspended without pay.
In June 2015, Lynch filed an application for ADRB regarding an assault
that occurred five months earlier by an inmate who was a known prostitute.
During the course of his attempt to restrain the inmate, she bit Lynch's hand,
drawing blood. Lynch claimed he suffered from "a great deal of stress and
anxiety" as a result, fearing he might have contracted a communicable disease
from the inmate. The following month, Lynch filed an amended ADRB
application, contending he sustained injuries during a previous assault in
October 2014, and witnessed an assault of his officer in July 2013.
In August 2015, Lynch, the County, and the SCSO executed a settlement
agreement. Among other things, the County and the SCSO agreed to withdraw
the disciplinary charges. In exchange, Lynch agreed to irrevocably resign from
the SCSO as of August 10, 2015, and to "be barred from future law enforcement
employment in the State of New Jersey." The settlement agreement also
acknowledged that Lynch "intend[ed] to apply for a disability pension."
A-2586-17T1
6
On March 21, 2016, the Board reviewed the administrative charg es filed
against Lynch and determined his public service had been dishonorable. The
Board issued an initial decision ordering a total forfeiture of Lynch's service and
salary credit earned in his fifteen years and nine months of public employment.
The Board also determined Lynch's application for ADRB was rendered "moot
because his total service and salary credit [we]re forfeited." The Board denied
petitioner's ensuing application for reconsideration but approved his request for
a hearing, and the matter was transmitted to the Office of Administrative Law
for a hearing before an Administrative Law Judge (ALJ).
At the hearing, the Board presented the testimony of the SCSO Internal
Affairs Investigator John Schanstra, who conducted both investigations, an d
Lynch testified in his own behalf. Notably, Lynch admitted he purchased
steroids from the corrections officer on "two or three" occasions for a few
months prior to March 2015. Contrary to his statement to Schanstra, Lynch
claimed he "just became aware of [the officer's drug-dealing] role a couple of
months before" the investigation commenced. Lynch said the January 2015
assault by the female inmate triggered his steroid use.
The ALJ also considered documentary evidence, including the internal
affairs reports, the PNDAs, the settlement agreement, and Lynch's applications
A-2586-17T1
7
for ADRB. Thereafter, the ALJ issued an initial decision, evaluating the
statutory factors and ultimately modified the Board's decision.
Regarding the cell phone incident, the ALJ found "while Lynch's conduct
may have been negligent, perhaps even grossly negligent or reckless . . . [his]
conduct was not dishonorable or the type of conduct contemplated by the
forfeiture statute." Although the ALJ acknowledged the disciplinary charges
had been settled, she also "observed that the SCSO sought a forty-five day
suspension." Thus, the ALJ reasoned "even if Lynch's conduct had been
dishonorable, any forfeiture in excess of the penalty sought by the appointing
authority would be excessive." Accordingly, the ALJ recommended no
forfeiture for the cell phone incident.
Turning to the steroids incident, the ALJ found "there [wa]s no question
of Lynch's guilt and culpability." The ALJ elaborated:
[Lynch] admitted to knowing about [the officer's]
illegal activity; he admitted to the purchase and use of
illegal steroids, including one transaction in the parking
garage of the Sussex County Jail; and he tested positive
for illegal steroids. Lynch's stated reason for the use of
illegal steroids was that it was a lapse in judgment as a
result of the January 2015 assault, whereby he was
humiliated and made to feel inferior in front of his staff.
While that and the October 2014 assault may otherwise
have been plausible reasons, it is noted that Lynch's
knowledge of [the officer]'s illegal activity and his
failure to take action predated both the January 2015
A-2586-17T1
8
and October 2014 assaults. Further, by his own
admission, Lynch did not report [the officer] because
Lynch was using illegal steroids himself.
However, the ALJ concluded "Lynch's conduct was not so dishonorable
as to require total forfeiture of all pension benefits." Rather, the ALJ
recommended a partial forfeiture, commencing January 1, 2014, i.e., the date on
which she deemed Lynch first became aware of the officer's drug distribution.
The Board issued a final decision dated January 9, 2018. Although the
Board accepted the ALJ's factual findings, it rejected the ALJ's legal
conclusions, finding her analysis of the statutory factors was incorre ct. The
Board then considered the statutory factors. Citing Corvelli, 130 N.J. at 552-
53, the Board afforded "considerable weight" to statutory factors seven ("the
nature of the misconduct"), eight ("the relationship between the misconduct and
. . . Lynch's position as a [c]orrections [l]ieutenant"), and nine ("Lynch's
motives").
Regarding the cell phone incident, the Board cited the testimony of
Schanstra, emphasizing an inmate's possession of a cell phone is "a threat to the
safety of the jail . . . it could be used to call others or take photographs or
schematics of safety and security measures." Accordingly, the Board found
Lynch's inactions "endangered the entire jail population." The Board thus
A-2586-17T1
9
concluded, the "egregious nature" of this charge, alone, "warrant[ed] a total
forfeiture."
Further, the Board determined Lynch's involvement with illegal steroids
represented "serious and significant episodes of misconduct" and his failure to
take any action against the officer, were both "directly related" to his job as a
corrections lieutenant. Finding those "incidents reveal[ed] a complete
dereliction of duty," the Board concluded total forfeiture was warranted.
Because Lynch could not return to work under the terms of his settlement
agreement,1 the Board also concluded Lynch did not leave work due to a
disabling medical condition. Accordingly, the Board determined Lynch was not
eligible for ADRB.
On appeal, Lynch raises the following points for our consideration:
POINT I
THE PFRS BOARD'S IMPOSITION OF TOTAL
FORFEITURE OF LYNCH'S PENSION SERVICE
WAS WHOLLY UNWARRANTED UNDER A FAIR
AND BALANCED APPLICATION OF THE
[ELEVEN-]FACTOR URICOLI TEST.
1
See N.J.S.A. 43:16A-8(2) (requiring beneficiaries who retire on disability
benefits to return to duty after their disability "has vanished or has materially
diminished").
A-2586-17T1
10
POINT II
THE BOARD IS BARRED FROM RAISING THE
SEPARATION OF SERVICE RULE TO
DISQUALIFY LYNCH BECAUSE THIS ISSUE WAS
NOT RAISED BELOW AND IS IN ANY EVENT
INAPPLICABLE BECAUSE N.J.A.C. 17:1-6.4 WAS
NOT PROMULGATED UNTIL WELL AFTER THE
DISCIPLINARY CHARGES WERE MADE AND
THE SETTLEMENT WAS EXECUTED.
POINT III
THE BOARD IS NOT BARRED BY THE
SETTLEMENT AGREEMENT BETWEEN LYNCH
AND HIS EMPLOYER FROM ANY RETURN TO
WORK ORDER.
Regarding Lynch's first point, we note at the outset that Lynch does not
dispute the Board's findings regarding each statutory factor, nor does he cite any
binding authority to support his argument. Rather, Lynch references his nearly
sixteen years of service, claiming "[a]ll service rendered prior to January 1, 2014
was deemed untainted and honorable" by the ALJ. Conversely, the Board cites
one of its prior decisions, "impos[ing] a total forfeiture of over [twenty] years
of service credit on a correction officer who was convicted of conspiring to bring
a cell phone into a prison." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
587 (1988) (recognizing a reviewing court should give "due regard also to the
agency's expertise where such expertise is a pertinent factor").
A-2586-17T1
11
Having reviewed the record, we are convinced there is sufficient credible
evidence in the record to support the Board's evaluation of the statutory factors
and its decision that a total forfeiture of Lynch's public service and salary credit
was warranted under the circumstances. See J.B., 229 N.J. at 43. The Board's
decision was based on two separate incidents, both of which clearly constituted
a breach of honorable public service. See N.J.S.A. 43:1-3(b). Those incidents,
together, dispel Lynch's argument that he "acted impulsively in a moment of
weakness and vulnerability." Rather, the record supports the Board's
determination that, under the circumstances of both incidents, Lynch's service
was dishonorable and related to his duties as a high-ranking lieutenant. See
Masse, 87 N.J. at 263.
Turning to Lynch's remaining points, we agree that his separation from
service was not raised by the Board in its initial decision and, as such, it was not
considered by the ALJ. Nonetheless, because we find the Board's decision
imposing a total forfeiture of Lynch's service and salary credit was warranted,
his application for ADRB was rendered moot. Therefore, we need not consider
the arguments raised in his remaining points. 2
2
Pursuant to Rule 2:6-11(d), the Board filed a supplemental letter brief, citing
our recent decision in Cardinale v. Board of Trustees, Police & Firemen's
A-2586-17T1
12
To the extent we have not specifically addressed Lynch's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in our written opinion. R. 2:11-3(e)(1)(E). Pursuant to our "limited" standard
of review, Russo, 206 N.J. at 27, we affirm substantially for the reasons
expressed in the Board's final decision, which "is supported by sufficient
credible evidence on the record as a whole." R. 2:11-3(e)(1)(D).
Affirmed.
Retirement System, 458 N.J. Super 260 (App. Div. 2019). In Cardinale, we
determined a PFRS member's irrevocable resignation from employment "renders
the individual ineligible for ordinary disability benefits." Id. at 262. As we
stated, however, the Board's initial decision does not mention Lynch's inability
to return to work.
A-2586-17T1
13