On appeal from the Merit System Board.
Michels, Havey and Conley. The opinion of the court was delivered by Michels, P.J.A.D.
Appellant Lester M. Ayars (Ayars) appeals from a final administrative action of the Merit System Board of the State of New Jersey, Department of Personnel (Board) that upheld the action of the appointing authority, respondent New Jersey Department of Corrections (Department), removing him from his position as a Senior Correction Officer at the Bayside State Prison pursuant to the provisions of N.J.S.A. 2C:51-2. At issue is the constitutionality of the forfeiture provisions of N.J.S.A. 2C:51-2.
Ayars was convicted of (1) two counts of failure to file a Gross Income Tax Return with intent to evade the tax, a fourth degree crime, in violation of N.J.S.A. 54A:9-15(a) and (2) failure to file a Gross Income Tax Return with intent to defraud the State or to evade or avoid the tax, a third degree crime, in
violation of N.J.S.A. 54:52-8. As a result of his convictions, Ayars was served with a Preliminary Notice of Disciplinary Action suspending him from his position on the administrative charges of (1) conviction of a crime in violation of N.J.A.C. 4A:2-2.3(5), (2) conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(6), and (3) forfeiture of public office for conviction of a third degree crime or higher in violation of N.J.S.A. 2C:51-2 and Department of Corrections Personnel Bulletin 84-17C Personal Conduct # 18. After a departmental hearing, the charges were upheld and the penalty of removal was recommended. Thereafter, Ayars was served with a Final Notice of Disciplinary Action, removing him from his employment. Ayars appealed to the Board pursuant to N.J.A.C. 4A:2-1.1. The Board referred the matter to the Office of Administrative Law for a de novo hearing before an Administrative Law Judge. Prior to the hearing date, the Department moved for a summary decision on the ground that Ayars forfeited his public employment pursuant to the forfeiture provisions of N.J.S.A. 2C:51-2. This statute, in pertinent part, provides:
a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:
(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
b. The forfeiture set forth in subsection a. shall take effect:
(1) Upon finding of guilt by the trier of fact or a plea of guilty, if the court so orders; or
(2) Upon sentencing unless the court for good cause shown, orders a stay of such forfeiture. If the conviction be reversed, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.
c. In addition to the punishment prescribed for the offense, and the forfeiture set forth in 2C:51-2a., any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.
The Administrative Law Judge held that since Ayars was convicted of third degree crimes, N.J.S.A. 2C:51-2 applied, and since the sentencing court did not stay the forfeiture, Ayars forfeited his position as a Senior Correction Officer. The Board agreed and affirmed the removal of Ayars. Ayars appealed, contending that subjecting him to a second prosecution and additional punishment for the same offense after conviction violated the Double Jeopardy Clause and the prohibition against bills of attainder. We disagree and affirm the action of the Board.
The Double Jeopardy Clause of the Constitution reads: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V. The United States Supreme Court has held many times that "the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1900, 104 L. Ed. 2d 487, 496 (1989). In Halper, the Supreme Court determined, "whether and under what circumstances a civil penalty may ...