On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Justices Pashman, Schreiber, Handler and Pollock. For affirmance -- Chief Justice Wilentz and Justices Clifford and O'Hern. The judgment of the Court was delivered by Handler, J. Pashman, J., concurring. Schreiber, J., concurring. O'Hern, J., dissenting. Chief Justice Wilentz and Justice Clifford join in this opinion. Pashman and Schreiber, JJ., concurring in the result.
Roger F. Eyers was the plumbing inspector for the Township of Parsippany-Troy Hills for 38 years, first on a part-time basis and, beginning about 1965, on a full-time basis. He was enrolled in the Public Employees' Retirement System (PERS) effective January 1, 1955. At the end of 1975, he applied for regular service retirement at the age of 69. His application was granted by PERS, and he began receiving about $442 per month beginning in February 1976.
Eyers was indicted in 1978 on one count of misconduct in office and three counts of taking money unlawfully. The indictment alleged that between April 1974 and June 1975 he had accepted money in return for concealing plumbing violations. In May 1978, a jury convicted him of all four counts. The trial court merged the misconduct count into the three counts for taking money unlawfully and sentenced Eyers to a one-year suspended jail term, two years' probation, and a $3,000 fine.
Even before his actual conviction, PERS notified Eyers that it was considering the suspension of his pension payments and that he had the right to a hearing on that issue. A hearing scheduled for October 1978 was postponed because Eyers was ill with cancer. He died on May 9, 1979, before the hearing ever took place.
Blanche T. Eyers, the petitioner in this case, is the 75-year-old widow of Roger Eyers. They had been married since 1950 and she still lives in the same five-room house that she and her husband had owned throughout their marriage. They had no children. She has not worked since her marriage and was, during its entirety, dependent on her husband. In January 1980, she was receiving Social Security benefits of about $432 per month. She was also receiving dividends from several bank investments, but the record does not indicate the amount of these dividends. Her husband's estate had not yet been settled, but she had received life insurance payments of $2,500. She owns her house free of any mortgage and also owns a 1970 automobile in good condition. She stated that she had managed to pay all her bills and was not experiencing financial problems. She is covered by Medicare and additional health insurance and was not under the care of a doctor for any illnesses. The most important need Mrs. Eyers expressed was for financial security against serious illness in her old age.
Under the Option 2 type of retirement plan selected by her husband, see N.J.S.A. 43:15A-50, Mrs. Eyers, as the designated beneficiary, would receive a one-time insurance benefit of about $2,362 and an annual survivorship benefit of about $5,300. At its meeting in June 1979, the Board of Trustees of PERS determined that no benefits were due Mrs. Eyers because of her husband's dishonorable service.
A hearing was held in January 1980 before an Administrative Law Judge. The judge concluded that although Roger Eyers' service had been dishonorable because of his conviction, his widow should not be deprived of the survivor benefits. The Board of Trustees of PERS rejected the ALJ's recommendation. It ruled that since Roger Eyers had not met the prerequisite of honorable service, his designated beneficiary, Blanche Eyers, had no survivorship rights.
On appeal, the Appellate Division affirmed, holding that the implicit requirement of honorable service continues for the
duration of public employment. Because of his conviction for job-related crimes committed while still a public employee, Roger Eyers would not have been entitled to a pension. Therefore, his designated beneficiary could not claim survivorship benefits from nonexistent rights of the public employee. We granted the widow's petition for certification. 87 N.J. 363 (1981).
We held in Uricoli v. The Board of Trustees, Police and Firemen's Retirement Systems, 91 N.J. 62 (1982), also decided today, that where an employee commits a wrongful act while in public service, even if related to his public employment, forfeiture of all pension benefits is not automatically mandated unless the governing statute so provides. Rather, a balancing approach is necessary to determine whether there should be a forfeiture. We further explained the appropriate guidelines and standards to be used in making the requisite determination. 91 N.J. at 77-78.
If we were required to address only the question of whether Eyers' pension benefits payable directly to him were subject to forfeiture for his misconduct, it is arguable that his conduct was dishonorable to a degree that justifies the loss of his pension. Applying the Uricoli balancing test, the mitigating factors are that Eyers had compiled almost 35 years of seemingly unblemished public service and that his misconduct occurred at the end of his career. He was fully retired on service grounds and was receiving full service retirement benefits. The misconduct consisted of a series of offenses which, if considered separately, were not substantial. Furthermore, although subsequently convicted of a crime, he died before he could obtain a hearing before the pension board to address his right to continue to receive pension benefits. Countervailing considerations are that he was convicted of several offenses that were directly related to the performance of his official duties. These ...