On appeal from Board of Trustees of the Public Employees' Retirement System.
Matthews, Ard and Polow. The opinion of the court was delivered by Matthews, P.J.A.D.
This is an appeal from a determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying an application by appellant for membership in PERS.
The facts are undisputed. Appellant, a World War II veteran, has continuously served as an employee of the Legislature since 1958. From 1958 to 1960 he served as Assistant to the Speaker of the General Assembly; from 1961 to 1974 he served as Assistant Secretary to the Senate except for the years 1966 and 1967 during which he served as Secretary of the Senate. In 1974 he was elected Secretary of the Senate and has continued to serve in that position since that time. In each of these positions he received an annual salary in excess of $500 which, pursuant to law, is paid semi-annually. N.J.S.A. 52:11-5.
In May 1977 appellant filed an application for enrollment in the Public Employees' Retirement System. Following an inquiry as to his eligibility for membership in PERS, the Board was advised by the Attorney General that under the governing statutes appellant was eligible for enrollment in the retirement system on the basis of his continuous permanent employment in the Legislature and that, by virtue of his veteran's status, he is mandatorily required to be enrolled retroactive to 1958.
Notwithstanding the legal opinion by the Attorney General, the Board in October 1977 determined that appellant was not eligible for enrollment. This denial was premised upon a regulation promulgated by the Board which requires payment to a public employee in all four calendar quarters as a condition for enrollment in the system. By letter dated February 2, 1978 the Board notified appellant of its decision, indicating that the decision was final and could be appealed to the Appellate Division.
Subsequently, the Attorney General requested the Board to reconsider its decision. The Board was advised that in the Attorney General's judgment there was no arguable basis on which the Board's decision could be defended. Despite the fact that the issue is solely one of statutory interpretation, involving neither a question of fact nor agency policy, the Board denied the Attorney General's request for a reconsideration. On March 9, 1978 a notice of appeal was filed by appellant. By letter dated July 12, 1978 the Attorney General reiterated to the Board that the issue involved was purely one of construction of the governing statutes; that the Attorney General's opinion on the legal issue was patently correct and binding on the Board, and that there was no arguable basis upon which the Board's decision could be defended in court. Accordingly, the Board was advised that the Attorney General would not provide it with legal representation in the courts at public expense and that a motion to intervene in support of the Attorney General's opinion would be filed.
Thereafter, on July 21, 1978 a motion by the Attorney General to intervene on his own behalf as an appellant was filed. On August 1, 1978 the Board voted to retain David I. Fox, Esq.,
On August 7, 1978 the firm of Fox and Fox filed a notice of appeal from the Attorney General's July 12, 1978 decision not to afford representation to the Board. On August 11, 1978 the firm filed a motion in this cause seeking an order from this court allowing it to represent the Board, denying the Attorney General's motion to intervene and ordering that the firm of Fox and Fox be paid by the State for its counsel fees. In effect, we were requested to designate the firm of Fox and Fox as special counsel to the Board. That motion was denied on August 23, 1978. At the same time the Attorney General was granted leave to participate as amicus curiae. We also permitted the individual members of the Board to intervene on their own behalf.*fn1 On September 13, 1978 Fox and Fox filed a motion in the Supreme Court for leave to appeal our order denying their motion for designation as special counsel for the Board at public expense. That motion was denied on January 30, 1979.
There can be no question that a refusal of a state agency to abide by a valid state law is a fundamental concern of the Attorney General both in his capacity and responsibility as
adviser to the agency and in his capacity and responsibility as protector of the public. Since the efforts of the Attorney General informally to convince the Board to abide by the statutory scheme and grant appellant's mandatory enrollment have met with not only unacceptance but defiance, the Attorney General has appeared "to preserve his function and responsibility and to protect the public from arbitrary and illegal action."
Respondents have raised in several preliminary arguments the contention that this case is not ...