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Simon v. Board of Trustees

Decided: May 10, 1989.

WILLIAM J. SIMON, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT



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.

D'annunzio

[233 NJSuper Page 187] 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

Petitioner, William J. Simon, was a Camden County Freeholder from January 1973 until January 1980, when he became Sheriff of Camden County. He enrolled in the Public Employees' Retirement System (PERS) in May 1973 and continued as a PERS member when he became sheriff. Before 1984, county sheriffs were eligible to join PERS only. By amendment to N.J.S.A. 43:16A-1 effective January 9, 1984, "county sheriff" was added to the list of employees eligible to join the Police and Firemen's Retirement System (PFRS). L. 1983, c. 439, ยง 1.

In the same amendment the Legislature changed the PFRS law to permit an incumbent county sheriff to transfer from PERS to PFRS under some circumstances. The two new sections read as follows:

No county sheriff shall qualify for membership in the Police and Firemen's Retirement System of New Jersey pursuant to this amendatory and supplementary act if he has reached the age of 37 years on the date of his application for membership. In calculating his age for purposes of eligibility for membership, a person may subtract the time spent in active service in any branch of the United States military service. [ N.J.S.A. 43:16A-3.6]

Any officer eligible to become a member pursuant to the amendatory provisions of this act who is enrolled in the Public Employees' Retirement System (P.L.1954, c. 84, C. 43:15A-1 et seq.) or any county pension fund established under Title 43 of the Revised Statutes shall be permitted to transfer membership from the aforesaid system or fund to the Police and Firemen's Retirement System of New Jersey in accordance with the provisions of P.L.1973, c. 156 (C. 43:16A-62 et seq.) and upon a lump sum payment into the Police and Firemen's Retirement System annuity savings fund of the amount of the difference between the contribution which was paid as a member of the Public Employees' Retirement System or county pension fund and the contribution that would have been required if he had been a member of the Police and Firemen's Retirement System since the date of last enrolling in the Public Employees' Retirement System or a county pension fund. In addition, the employee shall be liable for any payment to the retirement system that the employer would have been required to make on behalf of the member for the purchase of such

credit; this payment may be made in regular monthly installments or in a lump sum, as the employee may elect, and pursuant to rules and regulations as may be promulgated by the Division of Pensions.

Whenever in P.L.1973, c. 156 a period of time is set which is to be calculated from the effective date of said act, such time shall be calculated from the effective date of this amendatory and supplementary act for the purposes hereof. [ N.J.S.A. 43:16A-3.7]

As stated in N.J.S.A. 43:16A-3.7, this special category of transfer for county sheriffs was to be carried out under L. 1973, c. 156, the pertinent provision of which is codified at N.J.S.A. 43:16A-63. That section requires such a transferee to waive his rights and benefits under PERS by filing a waiver within 90 days of the date of that act (June 1, 1973). Absent such a timely waiver, "his pension status shall remain unchanged and his membership shall not be transferred to the Police and Firemen's Retirement System." N.J.S.A. 43:16A-63a.

By the last paragraph of N.J.S.A. 43:16A-3.7, the 90-day time limit of N.J.S.A. 43:16A-63a was incorporated into N.J.S.A. 43:16A-3.7, such that any transfer requests (with waiver) had to be filed within 90 days of January 9, 1984, or by April 9, 1984.

Thus, the 1984 amendments permitted incumbent county sheriffs to transfer from PERS to PFRS if three conditions were met: (1) the applicant was under 37 years old (after military service was subtracted); (2) the applicant paid to PFRS the sum stipulated in N.J.S.A. 43:16A-3.7; and (3) the application was filed by April 9, 1984.

On some unspecified date in early 1984,*fn2 petitioner applied for a transfer from PERS to PFRS, citing N.J.S.A. 43:16A-3.6 & -3.7. Having been born on July 14, 1946, petitioner was 37 years old at the time he applied. Hence he failed to meet the

under-37 age limit of N.J.S.A. 43:16A-3.6. But apparently petitioner took advantage of the military-service reduction allowed by that statute, thereby becoming age-eligible. Of the 21 incumbent county sheriffs, appellant was the only one age-eligible for transfer.

By letter of July 9, 1984 the Division of Pensions notified petitioner that the cost of his transfer, pursuant to the formula of N.J.S.A. 43:16A-3.7, would be $54,313.71, $11,642.71 of which would have to be paid in full within 30 days. Based on the high cost of transfer, ...


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