IN THE MATTER OF THOMAS J. EVANS, ETC. (DIVISION OF PENSIONS AND BENEFITS)

NOT FOR PUBLICATION WITHOUT THE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-2698-16T3
IN THE MATTER OF
THOMAS J. EVANS
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM ENROLLMENT ELIGIBILITY.
_______________________________
Argued April 23, 2018 – Decided July 24, 2018
Before Judges Fasciale and Sumners.
On appeal from the New Jersey Department of
Treasury, Division of Pensions and Benefits.
Michael A. Casale argued the cause for
appellant Thomas J. Evans.
Nicholas L. DePaolo, Deputy Attorney General,
argued the cause for respondent Board of
Trustees, Public Employees' Retirement System
(Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Nicholas L. DePaolo, on the
brief).
PER CURIAM
Thomas J. Evans, a Nutley Township (the Township) elected
official, appeals the final agency decision of the Board of
Trustees (Board), Public Employees' Retirement System (PERS), that
he is ineligible to enroll in its pension system because he was
not enrolled – despite his request to a Township employee to do
so – prior to a change in the law that prevented his enrollment.
Evans contends that the error in not enrolling him should be
rectified by the Board through the correction of error statute,
N.J.S.A. 43:15A-54. Because the Board failed to address Evans'
argument that the error should be corrected, we remand.
We briefly summarize the essential facts in the record before
the Board. Evans was elected as a Commissioner for the Township
in 2003, and has been continuously re-elected through the time
period relevant to this appeal. With his election, he had the
option to enroll in PERS under N.J.S.A. 43:15A-7 because he was
not a military veteran.1 Evans contended he exercised that option
by asking the Township payroll clerk to enroll him. He further
contended that, after noticing he had not received any information
from PERS regarding his pension, he inquired with the payroll
clerk, who reportedly claimed she would look into the situation.
However, Evans later discovered that he had not been enrolled.
On two occasions in 2009, the Township electronically
submitted Evans' application for PERS' enrollment; however, it was
rejected because of reform legislation, Chapter 92, P.L. 2007.
1
N.J.S.A. 43:15A-7 made it mandatory for PERS enrollment of an
elected official who qualified as a military veteran.
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Under the new law, elected officials who had not been enrolled in
PERS prior to July 1, 2007, were ineligible to enroll.2 N.J.S.A.
43:15A-7(d).
It was not until four years later that Evans followed up with
PERS by writing an October 24, 2013 letter to the agency detailing
how the former payroll clerk had mistakenly failed to satisfy his
request to enroll him in PERS. Two months later, the Acting
Director, Divisions of Pensions and Benefits, wrote to a State
assemblyman in response to his inquiry regarding Evans'
eligibility to enroll in PERS; explaining that Evans was not
eligible because he failed to enroll prior to the July 1, 2007
effective date of the new law, which no longer allowed PERS
enrollment "to any previously elected official who had not
exercised his or her option to enroll in the [PERS] retirement
system."3
After corresponding with the Governor's Counsel and the Board
Secretary, the Township's Attorney, on September 2, 2016,
2
Moreover, the enrolled elected official had to be continuously
elected and enrolled after July 1, 2007 to remain in PERS.
N.J.S.A. 43:15A-7(d).
3
Under the new legislation, the Defined Contribution Retirement
Program was created for eligible public officials who had not been
enrolled in PERS prior to July 1, 2007, or if enrolled before that
date, failed to maintain continuous membership thereafter.
N.J.S.A. 43:15C-2.
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forwarded the Board Secretary affidavits from Evans and three
other Township officials concerning Evans' efforts to enroll in
PERS. No affidavit was submitted from the aforementioned payroll
clerk because she passed away in 2009. In Evans' affidavit, he
requested that the Board consider correcting the Township's error
in not enrolling him "consistent with the [Board's] authority
established in the [c]orrection of [e]rrors [s]tatute, N.J.S.A.
43:8A-21." The statute provides:
Any person who shall knowingly make any false
statement or shall falsify or permit to be
falsified any record or records of the pension
fund in any attempt to defraud such pension
fund as a result of such act shall be guilty
of a misdemeanor and shall be punishable
therefor under the laws of the State of New
Jersey. Should any change or error in the
records result in any member or person
receiving from the pension fund more or less
than he would have been entitled to receive
had the records been correct, the board of
trustees shall correct such error, and as far
as practicable, shall adjust the payments in
such manner that the actuarial equivalent of
the benefit to which such member or
beneficiary was correctly entitled shall be
paid.
[N.J.S.A. 43:8A-21.]
At its meeting on September 21, the Board considered the
affidavits, but determined that Evans was not eligible to enroll
in PERS because no enrollment application was submitted for him.
In the Board Secretary's September 22 letter to Evans summarizing
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the Board's decision, there was no mention that the Board
considered but rejected application of the correction of errors
statute to enroll him into PERS. The Board's meeting minutes
reflecting its decision also made no mention of the statute.
Evans appealed the Board's decision; contending the Board did
not address whether he should be eligible to enroll under "the
[c]orrection of [e]rrors [s]tatute, N.J.S.A. 43:8A-21" and
requested a hearing before the Office of Administrative Law (OAL).
The Board, finding the appeal was solely a question of law,
declined to transmit the matter to the OAL as a contested hearing,
and denied the appeal for the same reasons expressed in the minutes
of the September 21 Board meeting and in the Board Secretary's
September 22 letter. Again, there was no consideration of
enrolling Evans into PERS retroactively based upon a correction
of the payroll clerk's alleged error.
Before us, Evans contends that the Board should have enrolled
him nun pro tunc because even though the pension reform legislation
that makes it ineligible for him to enroll in PERS after July 1,
2007, a different correction of errors statute, N.J.S.A. 43:15A-
54, should have been applied to alleviate the payroll clerk's
failure to enroll him three years before the effective date of the
pension reform. Evans no longer relies upon N.J.S.A. 43:8A-21 as
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a basis to gain enrollment in PERS as he previously did before the
Board. N.J.S.A. 43:15A-54 provides:
If any change or error results in an employee
or beneficiary receiving from the retirement
system more or less than he would have been
entitled to receive, then on discovery of the
error, the retirement system shall correct it
and, so far as practicable, adjust the
payments in such a manner that the actuarial
equivalent of the benefit to which he was
correctly entitled shall be paid.
The application of any member for prior
service credit or credit for all previous
service shall be approved if the employer, for
whom the service was rendered stipulates, in
writing, to the retirement system that the
information necessary for the award of such
credit was not presented to the employee and
agrees to make the necessary additional
contribution to the contingent reserve fund
and the employee makes the required
contributions, if any.
[N.J.S.A. 43:15A-54.]
Evans cites the long-standing decision in Burkhart v. Pub.
Emps. Ret. Sys., State, Dep't of Treasury, 158 N.J. Super. 414,
421 (App. Div. 1978), which involved the calculation of the
petitioners' costs to purchase credit for missed time of PERS
enrollment, where this court held "N.J.S.A. 43:15A-54 was adopted
. . . as a provision for the correction of errors, both as to the
amount of pension benefits and the inclusion of members erroneously
excluded by prior oversights." He further relies upon Cavalieri
v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 539
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(App. Div. 2004) (quoting Burkhart, 158 N.J. at 423), where we
ruled that "[t]he statute 'should be liberally construed and
administered in favor of the persons intended to be benefited
thereby.'"
Our role in reviewing the decision of an administrative agency
is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We accord
a strong presumption of reasonableness to an agency's exercise of
its statutorily delegated responsibility, City of Newark v. Nat.
Res. Council, 82 N.J. 530, 539 (1980), and defer to its fact
finding, Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We
will not upset the determination of an administrative agency absent
a showing that it was arbitrary, capricious, or unreasonable; that
it lacked fair support in the evidence; or that it violated
legislative policies. Lavezzi v. State, 219 N.J. 163, 171 (2014);
Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Here, we are unable to determine whether the Board violated
its legislative policies because it failed to address Evans'
contention that the payroll clerk's error – which is seemingly
accepted by the Board given its focus on the conclusion that no
enrollment application for Evans was submitted and that there was
no disputed fact requiring a contested hearing – in not enrolling
him into PERS should be corrected retroactively by the Board. We
are mindful that Evans now cites N.J.S.A. 43:15A-54 and its
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interpretation in Burkhart, and not N.J.S.A. 43:8A-21 as he did
before the Board. Nevertheless, Evans made the Board fully aware
that he was seeking relief under a correction of error theory. In
fact, after the Board's initial rejection of his request to be
enrolled in PERS, he appealed to the Board arguing that the Board
failed to "dispute" his argument that the payroll clerk's error
should be corrected under N.J.S.A. 43:8A-21 to effectuate his
enrollment. The Board is obligated to interpret and apply statutes
under its purview; it should have considered the applicability of
N.J.S.A. 43:8A-21, as well as N.J.S.A. 43:15A-54 given the factual
circumstances presented by Evans' enrollment request.
Accordingly, we are constrained to remand this matter to the
Board to fully consider and state its conclusions regarding these
legal issues. We leave it to the Board's discretion to allow any
additional legal arguments to be raised. Of course, we take no
position as to whether Evans is entitled to enrollment in PERS
under either correction of error statute discussed herein.
Reversed and remanded. We do not retain jurisdiction.
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