Halpern, Matthews and Bischoff. The opinion of the court was delivered by Halpern, P.J.A.D. Matthews, J.A.D. (concurring).
This is an appeal by John M. Deegan, Joseph B. Stapleton, John W. McLaughlin and Angelo Bevacqua, four of the five Hudson County Pension Commissioners (Commission), from judgments of conviction entered on a jury verdict finding them guilty of (a) conspiracy to pervert the due administration of the pension laws (N.J.S.A. 43:10-1 et seq. and N.J.S.A. 2A:98-1 and 2), (b) unlawfully assisting a public official, John J. Kenny, in obtaining county funds by granting him an illegal pension (N.J.S.A. 2A:135-3), and (c) misconduct in office (N.J.S.A. 2A:85-1). The fifth Commissioner, Frank L. De Marco, who was jointly tried with appellants and was convicted only of misconduct in office, has not appealed. The Commission's examining physician, Dr. Francis E. Rieman, who was charged only with conspiracy, was acquitted by the jury. Rieman was the only defendant who testified at the trial.
The original indictment contained 84 counts. As the result of a pretrial conference, appellants were tried only on 27 counts, namely: count 1 which charged conspiracy; count 84 which charged misconduct in office in that appellants failed to observe statutory standards for the award of disability pensions, failed to ascertain whether an applicant's disability claim was work-connected when he had worked for less than 20 years, illegally reinstated members who had withdrawn from the pension fund, and illegally gave pensions to 25 persons named in counts 2 through 83 of the original indictment; and 25 counts which charged unlawful assistance to named public officials in obtaining illegal pensions. Appellants' pretrial motions for dismissal of the indictment were denied. Their applications for leave to appeal from such denial were denied by this court.
We turn first to review the trial court's refusal to dismiss the indictment because the primary thrust of this appeal, as asserted by appellants, depends upon the disposition of this issue which is entwined with the charge of misconduct in office. Appellants argued in the trial court, as they do here, that they "did not violate any duties and there was no evidence presented to the grand jury to support the return of the indictment * * *."
Count 84 of the indictment, which charged appellants with misconduct in office, alleged:
1. At all times between the 20th day of February, 1968 and the 20th day of May, 1971, in thep lace and jurisdiction aforesaid, JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO did hold public office and did act as members of the County Employees' Pension Commission of the County of Hudson, and as such were charged by law with the proper and faithful control and management of the County Employees' Pension Fund of the County of Hudson and of the retirement of employee members of the said Pension Fund in accordance with the laws of the State of New Jersey and the provisions of R.S. 43:10-1, et seq.
2. On Divers dates between the 20th day of February, 1968 and the 20th day of May, 1971, in the place and jurisdiction aforesaid, the said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission, in violation of their duties, willfully and unlawfully did approve and award a total of at least $392,946.00 in annual disability pensions to at least 100 employees of the County of Hudson without having observed the standards for, and without having made proper and faithful inquiry into the facts necessary to make, the determination of disability which the said defendants were required to make according to law, to wit, R.S. 43:10-3 and R.S. 43:10-4.
3. On divers dates between the 20th day of February, 1968 and the 20th day of May, 1971, in the place and jurisdiction aforesaid, the said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission, in violation of their duties, willfully and unlawfully did approve and award a total of at least $237,215.00 in annual disability pensions to at least 68 employees of the County of Hudson, each of the said employees having at the time of his respective award
less than 20 years' service with the County, the said defendants willfully and unlawfully having failed to observe the standards imposed by law for the awarding of disability pensions to such employees, to wit, R.S. 43:10-4, and having failed to determine whether the alleged disabilities of the said employees arose out of and in the course of service with the County of Hudson.
4. On divers dates between the 20th day of February, 1968 and the 20th day of May, 1971, in the place and jurisdiction aforesaid, said JOHN M. DEEGAN, JOSEPH B. STAPLETON, JOHN W. MC LAUGHLIN, ANGELO BEVACQUA and FRANK L. DE MARCO, holding public office as members of the said Pension Commission, in violation of their duties, willfully and unlawfully did reinstate as members of the said Pension Fund divers persons who had previously withdrawn from the said Pension Fund, said reinstatements being contrary to the provisions of R.S. 43:10-1, et seq.
5. The Grand Jurors aforesaid repeat the allegations of Counts Two through Eighty-three and make the same a part hereof as though fully set forth herein.
ALL of the foregoing being contrary to the provisions of N.J.S. 2A:85-1, against the peace of this State, the government and the dignity of the same.
As hereinafter discussed, we hold that the 84th count properly charged appellants with misconduct in office under N.J.S.A. 2A:85-1 because they were charged with unlawful behavior in relation to their official duties intrusted to them by virtue of their public office as pension commissioners. State v. Cohen, 32 N.J. 1, 8 (1960); 1 Burdick, Law of Crime § 272 at 388 (1946).
Whether a statutory duty is imposed upon a public officer is a legal issue. The factual issues relating to employees who received pensions, their ages, length of service, amount of pensions awarded, and other related factual matters are not in dispute. What is in issue, in connection with the misconduct in office charge, is appellants' contention that they were not charged by statute, directly or indirectly, with the legal duty (a) to determine whether an employee was qualified to receive a pension because of a physical disability, (b) to determine whether an alleged disability was work-connected, and (c) to prohibit the reinstatement of previously withdrawn pension employees. Therefore, they argue
they violated no statutory duty upon which an indictment, or their convictions, could be founded. We disagree.
The Commission came into being under the provisions of N.J.S.A. 43:10-1 et seq. Hudson being a first-class county, the Commission was comprised of five members selected in accordance with N.J.S.A. 43:10-10. With respect to eligibility by county employees for pensions, three classifications are made:
43:10-2. Retirement for service and age
An employee of a county of the first class who shall have served in the county's employ for a period of twenty years and reached sixty years of age, shall, upon his own application, be retired on half pay.
43:10-3. Retirement for service and disability
An employee of a county of the first class who shall have served in the county's employ for a period of twenty years and shall have been found, as hereinafter provided, to be physically unfit for further service, shall, whether or not he has reached sixty years of age, upon written application to the pension commission, be retired on half pay.
43:10-4. Retirement for disability, injury or disease; examination; determination by commission
A county employee who shall have received a permanent disability by reason of injury, accident or sickness, incurred at any time in the service, which permanently incapacitates him, shall, upon the certificate of a physician designated for that purpose by the pension commission, be retired on half pay.
When a county employee desires to retire by reason of injury or disease, he shall apply in writing to the pension commission for retirement. Thereupon, the pension commission shall call to its aid a regularly licensed and practicing surgeon or physician and the person making the application may likewise call to his aid a regularly licensed and practicing surgeon or physician. The president of the pension commission may administer oaths to any persons called before the commission regarding the matter. If the two surgeons or physicians so called fail to agree upon the physical condition of the applicant, the pension commission may call a third and disinterested, licensed and practicing physician or surgeon and the determination of a majority of them, they having been first duly sworn, shall be reduced to writing and signed by them. The commission shall decide, by resolution, whether the applicant is entitled to the benefits of this article and shall consider the physicians' or surgeons' determination in reaching its decision. [As amended, L. 1947, c. 129, p. 601, § 1]
To determine the legal issues presented, it is essential to outline the uncontroverted facts as to how employees applied
for pensions and how they were processed by appellants. In addition, the relevant facts pertaining to the John J. Kenny pension will be discussed separately since appellants were convicted ...