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T.J.M. v. Board of Trustees of Police and Firemen''s Retirement System

Decided: May 14, 1987.

T.J.M., PETITIONER-APPELLANT,
v.
THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT



On appeal from a Final Administrative Determination of the Board of Trustees of the Police and Firemen's Retirement System.

Furman, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Petitioner-appellant, T.J.M., a Mendham Township police officer, who passed away in August 1986, had appealed the denial of his application for a disability retirement pension by the Board of Trustees of the Police and Firemen's Retirement System ("Board").

On October 18, 1984 a criminal complaint was filed in the Mine Hill Municipal Court charging appellant under N.J.S.A. 2C:14-2a with aggravated sexual assault upon his 17 year old daughter. The complaint alleged that on various days between 1981 and 1984, he performed sexual penetration.

On October 23, 1984 appellant was suspended without pay pending disposition of the criminal case against him. On December 6, 1984 he entered a guilty plea to aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), pursuant to a plea bargain which provided for a maximum term of incarceration of seven years. Appellant was sentenced on April 19, 1985 to an indeterminate seven year term at Avenel.

On January 3, 1985 appellant filed an application for ordinary disability retirement with the Police and Firemen's Retirement System ("PFRS"). By letter dated May 22, 1985 he was informed that the Board had denied his request for retirement benefits. He appealed from the denial and the matter was referred to the Office of Administrative Law. The Administrative Law Judge ("ALJ") conducted an evidentiary hearing on January 2, 1986 and issued his Initial Decision on March 12, 1986 ordering that the May 1985 decision of PFRS be affirmed.

The Board accepted the recommendation and denied appellant's request for ordinary disability benefits on April 29, 1986.

Appellant worked as a police officer during a four year tour of duty in the U.S. Air Force in the late 1960s. He served in Vietnam and after leaving military service he was a patrolman in the Newark Police Department for three years until July 1972 when he became "mentally incapable of performing his required police duties."

On January 15, 1973 appellant began work as a patrolman with Mendham Township. He was employed continuously in that capacity until his suspension without pay on October 23, 1984. He was enrolled in the Public Employees' Retirement System on January 1, 1973 and was an inter-fund transfer to the Police and Firemen's Retirement System on January 1, 1975.

Appellant's history of psychological difficulties dates at least from 1972. Further, he was the victim of an incestuous relationship when a juvenile. The sexual assaults against his daughter took place in his home while he was not on duty.

In its Final Administrative Determination the Board adopted the findings of fact, conclusions of law and recommendations of the ALJ. The ALJ held that Masse v. Public Employees' Retirem. Sys., 87 N.J. 252 (1981) and Procaccino v. Public Employees' Retirem. Sys., 87 N.J. 265 (1981) did not control this case but rather the flexible balancing approach of Uricoli v. Police & Fire. Retirem. Sys., 91 N.J. 62 (1982) governed. He concluded that pension forfeiture was required as factors 7, 8 and 9 of the Uricoli test, 91 N.J. at 78, weighed so heavily in favor of forfeiture that these three factors "far outweigh[ed] the good contained in the other factors."

Masse involved an individual who had been employed as an Assistant Borough Superintendent of Water and Sewers for approximately 14 years until suspended because of his indictment for impairing the morals of a minor and contributing to the ...


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