On appeal from Board of Trustees, Police and Firemen's Retirement System.
J. H. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The issue is whether respondent, Board of Trustees, erred in denying appellant a cost-free transfer from the Public Employees' Retirement System (PERS) to the more beneficial Police and Firemen's Retirement System (PFRS) under a 1986 regulation intended to remedy prior age discrimination. This is the third case we decide today involving the regulation's application.*fn1
Appellant was born on March 10, 1928. He commenced public employment on April 2, 1962 as a provisional correction officer assigned to the Bordentown Reformatory, and was permanently appointed to this position on October 23, 1962. He was enrolled in PERS on October 29, 1962, at the age of 34. Appellant's job classification was not eligible for membership in PFRS at that time.
Appellant was promoted to head juvenile officer at the Training School for Boys in Skillman on June 2, 1970. He remained in this title until September 15, 1973, when he was provisionally appointed to the position of assistant supervisor of cottage life (ASCL).
On June 1, 1973, L. 1973, c. 156 (Chapter 156) went into effect. Section 4 of this act, which is codified at N.J.S.A. 43:16A-63, provided at that time in pertinent part:
a. An eligible officer who is a member of the [PERS] shall be permitted to transfer his membership in said fund to the [PFRS] of New Jersey by waiving all rights and benefits which would otherwise be provided by the [PERS]. Any such officer will likewise be permitted to continue his membership in the [PERS] by waiving all rights and benefits which would otherwise be provided by the [PFRS]. Such waivers shall be accomplished by filing forms satisfactory to the New Jersey Division of Pensions, which is responsible for the administration of the [PFRS], within 90 days of the effective date of this act. In the absence of the filing of a timely waiver by any eligible officer his pension status shall remain unchanged and his membership shall not be transferred to the [PFRS].
Chapter 156 established PFRS eligibility for the position of head juvenile officer and permitted individuals who were so employed to transfer their membership from PERS to PFRS regardless of their age as long as a waiver form was filed by August 30, 1973. This was the first time that head juvenile officers were eligible to enroll in PFRS. See L. 1973, c. 156, § 1. However, the position of assistant supervisor of cottage life continued to be ineligible for PFRS.
On June 12, 1973, the Assistant Director of the Division of Pensions issued a memorandum addressed to all state employees with police powers holding PFRS eligible job titles. The memorandum summarized Chapter 156, compared PERS with PFRS and was to be distributed by the employers with a PFRS election form. The memorandum directed PFRS-eligible employees to complete the election form indicating whether or not they wished to transfer and to return it to their employers prior to August 30, 1973, the last day on which such an election could be made.
Gary Hilton, who was the Assistant Superintendent of the Skillman Training School for Boys in June 1973, testified that he met with the training school's superintendent between June 10 and June 20, 1973, and they agreed that appellant would assume the position of assistant supervisor of cottage life in an "acting" capacity pending the execution of civil service documents
necessary to provisionally appoint appellant to this position. Hilton and the superintendent intended that appellant would assume the ASCL position on a permanent basis if he passed an examination. Hilton recalled having seen appellant functioning as an ASCL by the end of June or the beginning of July 1973. However, it was not until September 15, 1973, that appellant was officially recorded by the Department of Civil Service as having been provisionally appointed to this position.
Appellant recalled having been informed in June 1973 by his supervisor, Mr. Lindenmeyer, that he was to be moved into the ASCL position. Appellant assumed the ASCL duties at that time. He also testified that he was not aware that his civil service record card did not reflect his service as an ASCL during the summer of 1973.
Appellant recalled that in July 1973 he read the June 1973 memorandum issued by the Division of Pensions which summarized Chapter 156. Although appellant wanted to transfer to PFRS he assumed that he was ineligible because the position of ASCL was not PFRS eligible. Thus, appellant never filed a transfer form. Appellant also testified that because he was performing ASCL duties it had not occurred to him that he still held the title of head juvenile officer and, therefore, was eligible to transfer to PFRS.
Frank Balcavage, Chief, Bureau of Enrollment and Purchases, Division of Pensions, testified that even though appellant was functioning in the capacity of an ASCL during the summer of 1973, he would have been eligible to transfer to PFRS under Chapter 156 because he still held the title of head juvenile officer, a PFRS-eligible position. However, Balcavage explained that appellant would have been required to transfer back into PERS in September 1973 when he officially became a provisional ASCL since this job title was not PFRS eligible.
Appellant was permanently appointed an ASCL on June ...