On appeal from the Board of Trustees, Public Employees' Retirement System.
Petrella, R.s. Cohen and Kestin. The opinion of the court was delivered by Kestin, J.s.c., (temporarily assigned).
The opinion of the court was delivered by
KESTIN, J.S.C., (temporarily assigned).
From 1971 until his retirement in 1988, petitioner (Chapel) was employed by the Fort Lee Board of Education as Supervisor
of Buildings and Grounds. In 1974, the Board of Education also appointed Chapel as Clerk of the Works for several construction projects. He was paid additionally for this position.*fn1
With one brief hiatus in 1979, Chapel continued to discharge these further duties along with his responsibilities as Supervisor of Buildings and Grounds until his retirement. In 1982 the "Clerk of the Works" title was changed to "Construction Consultant".
Throughout the period in which Chapel functioned as Supervisor of Buildings and Grounds and as Clerk of the Works/Construction Consultant, he was paid separately for each position with the customary deductions for taxes, social security and state disability reflected in each paycheck. Pension deductions, however, were taken only from his paychecks as Supervisor of Buildings and Grounds.
About a year before his retirement, Chapel was advised by an employee of the Division of Pensions that the Board of Education should have been deducting pension contributions from his salary as Clerk of the Works/Construction Consultant as well as from his salary as Supervisor of Buildings and Grounds. Chapel then requested corrective action by the Board of Education, i.e., that pension deductions be taken from his salary as Construction Consultant. No such action was taken.
Shortly after his retirement, Chapel formally requested the Public Employees' Retirement System (PERS) to include in the base for computing his retirement benefits the compensation he had received as Clerk of the Works/Construction Consultant. This request was denied and Chapel demanded a hearing under the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Office of Administrative Law Act, N.J.S.A. 52:14F-1 et seq.
A contested case hearing was held before Administrative Law Judge Reiner who concluded that Chapel's service as Clerk of the Works/Construction Consultant was pension-eligible and that, under N.J.S.A. 43:15A-7.1b, the Board of Education was responsible for one-half of Chapel's contribution. Judge Reiner's initial decision was filed on December 7, 1990.
In a letter to Chapel's attorney captioned "Final Administrative Determination", dated January 17, 1991, the PERS Board of Trustees "rejected the recommendation of the Administrative Law Judge and affirmed the denial of salary received as construction consultant and clerk of the works to be used toward pension calculation." This document noted further that "[t]he Board has directed the Secretary to draw up findings of fact and Conclusions of law consistent with its decision which will be presented to the Board at its meeting for Discussion and review. The next meeting of the Board will be on February 20, 1991." On February 22, another letter was sent. It was similar in form to the January 17 letter except that it noted the receipt of cross-exceptions by Chapel's attorney dated ...