On appeal from a Final Administrative Determination of the State of New Jersey Department of the Treasury, Division of Pensions, Public Employee Retirement System.
Petrella, O'Brien and Stern. The opinion of the court was delivered by Petrella, P.J.A.D.
[238 NJSuper Page 71] Petitioner-appellant Charles C. Widdis appeals from a final determination of the Board of Trustees (Board) of the Public Employees Retirement System (P.E.R.S.) which declared that he had forfeited certain pension benefits. The Board rejected the initial decision of the Administrative Law Judge (ALJ) which would have only partially forfeited deferred retirement benefits relating to Widdis's service with Howell Township. Although the Board accepted and adopted the findings of fact of the ALJ, it modified his conclusion that Widdis was entitled to deferred retirement benefits under N.J.S.A. 43:15A-38(b) on the basis of service rendered to the Borough of Atlantic Highlands from January 1, 1964 to January 1, 1978 and to Howell Township from January 1, 1961 to June 1, 1980. In modifying that recommendation the Board determined that retirement benefits would only be paid to Widdis based upon his employment with the Borough of Atlantic Highlands. All retirement benefits from his positions with Howell Township and Long Branch*fn1 were held subject to forfeiture under the statute.
Widdis argues on appeal that P.E.R.S. improperly interpreted N.J.S.A. 43:15A-38 as requiring a forfeiture of pension rights with respect to his Howell Township employment, despite his subsequent conviction of a crime.
The facts were stipulated at the hearing before the ALJ. Widdis was born on December 5, 1924. On January 1, 1961 he was appointed township engineer for Howell Township and was successively reappointed each year thereafter until 1981 when he was appointed for three years. He resigned his position on August 26, 1981. Widdis also served as building inspector and zoning officer in Howell Township. During this period Widdis was also employed by the Borough of Atlantic Highlands as borough engineer from January 1, 1964 until January 1, 1978 when he was not reappointed. On July 1, 1974 Widdis became city engineer for the City of Long Branch when he was appointed for a four year term and subsequently reappointed for another four years in 1978. His employment with Long Branch terminated when he was not reappointed in 1982.
Widdis was compulsorily enrolled in P.E.R.S. on April 1, 1966 with a retroactive enrollment date of May 1, 1961. On October 6, 1972 he completed a purchase of credit for his prior public employment from May 1, 1961 to April 1, 1966 and became a multiple enrollee of P.E.R.S. since he worked in more than one P.E.R.S. position with more than one public employer at the same time. As of June 30, 1982 when he had terminated all his public employment he had 21 years, 3 months of service credit in the fund.
On March 23, 1987 Widdis applied for veteran's retirement benefits. When it was determined by the Board that he was ineligible for veteran's retirement*fn2 under N.J.S.A. 43:15A-61 he withdrew his application and applied for deferred retirement under N.J.S.A. 43:15A-38.
While Widdis was employed by these various public employers he also operated a private practice doing engineering and surveying work for private companies, boards of education, and public organizations with the knowledge of the various townships. Widdis's private office was located in Long Branch. During the course of this business he prepared documents which subsequently came before him for review in his official capacity. See Virginia Construction Corp. v. Fairman, 39 N.J. 61, 64-65, 187 A.2d 1 (1962) (such a practice had been commonplace in the past but was now disapproved).
In August 1981 a newspaper reporter contacted Widdis about certain transactions and statements made at a township public meeting relating to a landfill operated in Howell Township. Certain reports had been filed under Widdis's letterhead with the New Jersey Department of Environmental Protection (DEP) and the Federal Environmental Protection Agency (EPA) which dealt with various surveys conducted by Widdis's private office for a privately operated waste disposal site. Widdis had apparently made surveys of the site at an earlier time, and when the DEP and EPA imposed new regulations for the disposal site, his office was again contacted to do the surveying work. A controversy arose over operations of the landfill and Widdis's name was mentioned in regard to the work his office had done. As a result of an ensuing controversy, the Mayor of Howell Township asked Widdis to resign or be suspended. Widdis was suspended without pay for about two weeks and ultimately resigned. Widdis testified he was never indicted in connection with this incident.
This mixing of private practice and public service led to an investigation and a grand jury indictment (30 counts) on April 23, 1982 charging Widdis with misconduct in office, official misconduct, conspiracy, falsifying records and solicitation which allegedly occurred from December 1977 through November 1981 in Howell Township and Long Branch.
A second indictment in 21 counts was handed up on June 18, 1982 charging Widdis with forgery, falsification of records and knowingly soliciting or agreeing to accept a benefit while serving as a public servant during the period April 1978 through November 1981 in Howell Township and Long Branch.
A third indictment was handed up on July 9, 1982 which contained 12 counts and charged Widdis with misconduct in office, official misconduct and conspiracy during the period December 1977 through April 1981 in Howell Township, Long Branch and Middletown Township.
Widdis entered a not guilty plea to all counts of all indictments. However, on October 5, 1982 he retracted his plea of not guilty to one count of the first indictment which charged him with misconduct in office in Long Branch during 1980 by reviewing in his official capacity a map or plan which he had prepared for a private client. He also retracted his not guilty plea to one count of the third indictment which charged him with official misconduct during the period June 1980 through March 1981 in Howell Township or Middletown Township, or both of them, by reviewing maps, plans or other documents that he had prepared for the application of a private client.
Widdis was sentenced on January 7, 1983 pursuant to a judgment of conviction also entered on that date. He was ordered to pay a $5,000 fine, costs, a $25 Violent Crimes Compensation Board (V.C.C.B.) penalty and $10,000 in restitution to Howell Township and a $5,000 fine, a $25 V.C.C.B. penalty plus $5,000 restitution to Long Branch with respect to the respective convictions based on his plea. All other charges were dismissed. The judge also ordered that Widdis would "forfeit any and all public offices, positions and employment" and "shall be forever disqualified from holding any office or position of honor, trust or profit ...