On appeal from a Final Administrative Determination of the Board of Trustees of the Public Employees' Retirement System.
Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
[226 NJSuper Page 183] Petitioner, the Estate of Ferdinand Hagel, appeals from a determination of the Public Employees' Retirement System (P.E.R.S.) denying death benefits under N.J.S.A. 43:15A-41 and
57. Decedent had served as a part-time adjunct professor of mathematics at Brookdale Community College. Brookdale's academic year was divided into four terms, two long and two short. The two longer terms, fall (September-December) and winter (January-mid-May) were the regular school terms. Spring (mid-May-June) and summer (July-August) were the short terms held during the usual summer vacation period. No adjunct professors were retained for the spring short term, since sufficient regular professors were available at that time. Decedent taught a class at the college in each of the following terms: fall 1983, winter 1984, summer 1984, fall 1984, winter 1985, summer 1985, fall 1985 and winter 1986. At the end of the 1984-1985 regular academic year he was required to join the P.E.R.S. and did so. This membership continued through the date of his death.
In May 1986, at the end of the winter 1986 term, the mathematics team leader, Professor Schmid, recommended decedent to continue to teach courses in the summer 1986 term to be conducted during July and August. In mid-June, however, decedent telephoned Professor Schmid to inform him that he was ill and unable to teach the summer course. As found by the administrative law judge, "Professor Schmid told decedent that he hoped he would make a speedy recovery and that he (Schmid) would hold open the fall courses for decedent in anticipation of decedent's return to active teaching." Although this finding is supported by the record, the State Board noted merely that "Schmid told Hagel he would keep him in mind for the Fall 1986 term."
While the decision to hire faculty is vested in the Board of Trustees of the college, the administrative law judge determined that the practice had been for the Board to accept "the hiring recommendation of the heads of the various departments." The judge noted specifically that decedent had been hired on Professor Schmid's recommendation, that decedent was very reliable and had routinely been appointed and reappointed, and that Schmid had no doubt that but for decedent's
illness and death, decedent would still be teaching at the college. The State Board, however, stated that the official
approval process was repeated each semester for all adjunct faculty members and all approvals were subject to sufficient enrollment to justify offering the course the adjunct was approved to teach. . . . At no time was Hagel guaranteed a class to teach.
There is no basis in the record to find that continued employment was as problematic as found by the State Board. Professor Schmid's testimony permits no other conclusion but that the job was available to decedent if his health permitted him to teach.
Hagel died August 10, 1986, and upon plaintiff's application for death benefits, defendant denied the benefits pursuant to N.J.S.A. 43:15A-108a. That statute reads:
For the purpose of sections [ N.J.S.A. 43:15A-41c, 49e and 57], a member of the Public Employees' Retirement System shall be deemed to be an active member . . . (2) for a period of no more than 2 years while on official leave of absence without pay if satisfactory evidence is presented to the retirement system that such leave of absence without pay is due to the member's personal illness. . . .
Under the referenced sections, death benefits are payable only to active members. Rogers v. State, 125 N.J. Super. 516 (App.Div.), aff'd o.b. 64 N.J. 40 (1973).
The administrative law judge correctly determined that petitioner was not on "official leave," since this leave was granted only to full-time staff of the college. He found, however, that petitioner had been given a de facto leave of absence, and the death benefits were thus properly payable. The State Board declined to accept the judge's recommended decision.*fn1 The State Board determined that at the end of each
teaching assignment petitioner had no right to the next assignment unless a new contract had been tendered. The Board found that during any hiatus decedent could have protected his rights by exercising the death benefit conversion privilege by which private insurance could have been secured to cover the disputed benefits. See N.J.S.A. 43:15A-93.
We determine, however, that there are two separate bases under which petitioner should have been paid the death benefits. First, given the nature of his job and the short, regularly-occurring breaks between periods of reasonably expected continued employment, decedent was still an active member at the time of his death; and, second, decedent was still covered by the death benefits policy under its conversion terms.
The administrative law judge approached his analysis in the spirit of the benchmark case of Geller v. Dept. of Treasury, 53 N.J. 591 (1969). There the Supreme Court recognized that the pension laws were remedial social legislation to be "liberally construed and administered in favor of the persons intended to be benefited thereby." 53 N.J. at 598. The administrative law judge further properly noted the line of cases granting to the governing boards of the various pension systems discretion in appropriate circumstances to waive specific time limitations.
We perceive in the State Board's opinion, however, a measure of rigid interpretation unrelated to the practical reality of the case before it. Decedent had taught semester after semester for years, and was told by the professor who supervised his program that a course would be held open for him in the fall semester. The fact that decedent did not teach during the usual summer vacation ...