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Zigmont v. Board of Trustees

Decided: December 17, 1981.

KATHRYN B. ZIGMONT, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT-RESPONDENT



On appeal from the Board of Trustees of the Teachers Pension and Annuity Fund.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

Petitioner Kathryn B. Zigmont appeals from a determination of the Board of Trustees, Teachers' Pension and Annuity Fund (Board), disqualifying her from the purchase of retirement credit for the period from January 1, 1975 to September 1, 1976, when she was on unpaid maternity leave. We reverse.

The facts surrounding this controversy are simple and undisputed. Mrs. Zigmont has been continuously employed by the Union County Regional High School District (District) since 1966 and has been a member of the Teachers' Pension and Retirement Fund (TPAF) since 1965. Shortly before the commencement of her maternity leave at the beginning of 1975, she inquired of a Mrs. Mumford, a District employee, as to whether she could purchase credit for the period of the leave and was erroneously informed that she could not. Mrs. Mumford apparently filled that clerical position whose duties included all of the ministerial liaison functions in respect of TPAF bookkeeping and information transmission. Mrs. Zigmont returned to active service at the start of the 1976-1977 academic year, taking no further action with respect to the purchase of pension credit. Sometime in April, 1979, 2 1/2 years after her return, she attended a teachers meeting at which an employee of the Division of Pensions spoke, and she thereby discovered that she had been misinformed by Mrs. Mumford. She thereupon promptly communicated with the Fund in an effort to make the purchase but was not permitted to do so on the ground that her request was untimely. Ultimately, she appealed to the Board, which afforded her a hearing by an administrative law judge, who recommended the denial of her purchase request because it was made too late. The Board accepted this recommendation and petitioner appeals.

At issue here is the construction of N.J.S.A. 18A:66-8 and the determination of whether it imposes, as the Board concluded, an unrelaxable and mandatory period of one year following return to service for the making of the purchase request. This provision, prior to amendment in 1971, provided first that a teacher on leave of absence granted by the employer or permitted by law was entitled to continue as a member of the retirement system provided he returned to service within five years from the date such leave commenced but that "no credit for retirement purposes shall be allowed except as provided hereinafter in this section." The proviso referred to read in pertinent part as follows:

In computing service for retirement purposes . . . no time during which such teacher was absent on such leave shall be credited unless such absence was for a period of less than three months or unless service was allowed for retirement purposes within one year following his return to service after completion of such leave, both by his employer and by the board of trustees, or unless the period of leave was specifically allowed for retirement purposes by the provisions of any law of this State.

The Teachers' Pension and Annuity Fund Law, N.J.S.A. 18A:66-1, et seq. , was comprehensively amended by L. 1971, c. 121, the Introductory Statement to which explained that its intent was to "liberalize benefits and provide for a uniform and more economical administration." The statement further pointed out that among its major benefit liberalizations was the permitting of "purchase of service when on official leave of absence." Although there is no specific statement of how the service-purchase provision was actually intended to be liberalized, the language of N.J.S.A. 18A:66-8 was then amended to read, in pertinent part as follows:

In computing service, time during which such teacher was absent on an official leave without pay shall be credited if such absence was for a period of (1) less than 3 months or (2) up to a maximum of 2 years if the leave was due to the member's personal illness or maternity and the period of leave is allowed for retirement purposes within 1 year following his return to service after the termination of such leave, or (3) the period of leave was specifically allowed for retirement purposes by the provisions of any law of this State.

It is, of course, the second enumerated proviso above which is here applicable. In construing it the administrative law judge concluded that

. . . the statute in question is clear, unequivocal and unambiguous. The purchase of pension credit for an authorized leave of absence without pay must be effectuated within one year following the return to service after the termination of such leave. There is no room for construction or discretion unless petitioner was caused to change her ...


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