On appeal from the Board of Trustees of Teachers' Pension and Annuity Fund.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[188 NJSuper Page 489] Petitioner John J. Buono appeals from a determination of respondent Board of Trustees of the Teachers' Pension and Annuity Fund (hereinafter "Trustees") denying petitioner's request that respondent reconsider its prior determination of March 9, 1978 that petitioner's public service had been "dishonorable." By reason of the decision of March 9, 1978 he had become ineligible for an ordinary disability retirement benefit from the Teachers' Pension and Annuity Fund (hereinafter "Fund").
The procedural history and factual background of this matter are not complicated. In April 1976 petitioner, formerly a social worker employed by three boards of education and thus a member of the Fund, filed an application for ordinary disability retirement benefits. An investigation of his application by the Trustees revealed that he had been indicted on January 5, 1976 in Monmouth County for various sexual offenses, including solicitation for prostitution, conspiracy to solicit for prostitution, carnal abuse, impairing the morals of a minor and contributing to the delinquency of a minor. In accordance with procedures then followed, the Trustees suspended processing of petitioner's application until disposition of the criminal charges. Petitioner and his attorney were so advised by letter dated September 20, 1976. They made no objection to the procedure being followed. On November 17, 1977 at a jury trial petitioner was found guilty of all the aforesaid offenses and on February 17, 1978 he was sentenced to concurrent sentences of not less than two nor more than three years on the counts of solicitation for prostitution, conspiracy to solicit for prostitution and impairing the morals of a minor. The remaining two counts were merged into the count for impairing the morals of a minor.
As a result of these convictions petitioner's service was deemed dishonorable by the Trustees. Thus, petitioner was not entitled to ordinary disability benefits from the Fund. On March 13, 1978 petitioner and his attorney were given written notice of this determination and were advised that petitioner was entitled to a return of his pension contributions. The notice further indicated that if they disagreed with the determination they could request a formal hearing. On April 5, 1978 petitioner filed an application for withdrawal of his contributions. He also stated that he was not appealing the decision of the Trustees. Petitioner was subsequently refunded $3,833.23 in contributions and $594.34 interest.
On August 4, 1980 this court decided Masse v. Public Employees' Retirement System, 175 N.J. Super. 325 (App.Div.1980). We
there held that a public employee's conviction for a crime of moral turpitude unrelated to his employment would not be cause to deny him his pension. On July 27, 1981 the Supreme Court, on a further appeal in Masse, 87 N.J. 252 (1981), and in Procaccino v. Public Employees' Retirement System, 87 N.J. 265 (1981), held that a public employee's misconduct involving moral turpitude, unrelated to his public employment, does not result in automatic forfeiture of his public pension rights.*fn1 No decision was made as to the applicability of the new rule to cases in which the pension had already been denied.
As a consequence of the Supreme Court decision in Masse, petitioner on August 26, 1981 sent a written request to the Trustees asking them to reinstate his application for a disability benefit. He indicated that he had withdrawn his contributions from the Fund because of the duress of his personal circumstances emanating from his incarceration. He further stated that his conviction was for offenses unrelated to his employment,*fn2 a contention the Trustees did not address. The Trustees referred his request to the Attorney General for advice. On September 15, 1981 petitioner's attorney submitted a written opinion to the New Jersey Education Association in which he concluded that petitioner was entitled to his pension. On October 29, 1981 a copy of this opinion was forwarded to the Trustees.
By letter of April 19, 1982 the Trustees wrote petitioner that on April 1, 1982 they had concluded that petitioner's case was closed because he was no longer a member of the Fund.
On April 22, 1982 the Attorney General gave written advice to the Trustees in response to their request. He advised them ...