On certification to the Superior Court, Appellate Division.
For Affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J.
We granted certification, 127 N.J. 562, 606 A.2d 373 (1992), to review the Appellate Division's determination, in an unreported opinion, upholding a denial of age- and service-retirement benefits for George Corvelli. (Because Corvelli died during the pendency of his appeal from the decision of the Board of Trustees of the Police and Firemen's Retirement System (Board), the Appellate Division substituted his adult son Claude as petitioner for the pension benefits. As used in this opinion, "petitioner" refers to George Corvelli.)
The court below agreed with the Board's Conclusion that petitioner's conviction for weapons theft and his associated misconduct in office spanning two-and-a-half years demonstrated dishonorable service calling for a total forfeiture of his pension under Uricoli v. Board of Trustees , 91 N.J. 62, 449 A.2d 1267 (1982). Mindful of the limited scope of appellate review of an administrative agency's final decision, we agree with the Appellate Division that the Board's decision was neither arbitrary and capricious nor unsupported by substantial credible evidence. See Public Serv. Elec. & Gas Co. v. New Jersey Dep't of Envtl. Protection , 101 N.J. 95, 103, 501 A.2d 125 (1985). We therefore affirm.
In September 1955, George Corvelli began his career of public service as a patrolman with the Borough of Ridgefield. On that date, Corvelli enrolled in the Police and Fireman's Retirement System. He rose through the ranks of the department, becoming a sergeant in September 1969 and Chief of Police in December 1978.
The Borough's Mayor and Council suspended petitioner from his employment in April 1985, when a Bergen County grand jury indicted him on charges of official misconduct and third-degree theft of a weapon. A jury convicted Corvelli on April 25, 1986. After merging the convictions the trial court sentenced
Corvelli to three years probation, 500 hours of community service (later vacated), and ordered payment of $2525 in fines and penalties. Following that conviction Corvelli forfeited his office, as required by N.J.S.A. 2C:51-2. The Appellate Division affirmed the convictions in an unreported opinion, and we denied certification, 111 N.J. 622, 546 A.2d 539 (1988).
In April 1986 Corvelli applied for special retirement from the Police and Fireman's Retirement System under N.J.S.A. 43:16A-11.1. When the Board denied the application, Corvelli initiated an administrative appeal of the Board's initial decision. The Administrative Law Judge (ALJ) concluded that Corvelli should forfeit so much of his pension as represented contributions made after June 10, 1982, the date of his criminal conduct. In recommending partial forfeiture, the ALJ relied in part on the detailed account of Corvelli's misconduct in the Appellate Division's opinion affirming the criminal conviction. In that opinion, which had been admitted as a joint exhibit in the record before the ALJ, the Appellate Division described Corvelli as a "martinet" who had become displeased with one of his patrolmen, John Bogovich. Describing the background circumstances at some length, the opinion continues (references in the opinion to "defendant" are to Corvelli):
The reason for defendant's displeasure is not entirely clear from the record, but it appears to have started when, contrary to defendant's advice, Bogovich testified against the Borough for a fellow police officer. The origin of defendant's displeasure is less important than its effect.
Defendant punished Bogovich by assigning him indefinitely to foot patrol in a park from 2:00 a.m. to 10:00 a.m. That assignment lasted two and a half years until defendant was suspended as a result of charges against him in this action. The assignment not only was physically burdensome but also disrupted Bogovich's family life and deprived him of the opportunity to moonlight, a common practice in the department. The assignment also carried a stigma because no one else in the department, including officers who were given Bogovich's assignments on his days off, was required to patrol the park on foot. Nor was anyone else involuntarily assigned to the same duty every working day. Bogovich did not accept the assignment passively. A chronic complainer by nature, he complained of the assignment to the governing body. He also brought civil actions against defendant, including one in which he demanded $12,000,000 damages. He freely disparaged defendant. Bogovich's protests had no effect, except perhaps to prolong his onerous assignment.
Defendant decided to inflict further punishment on Bogovich by committing the crime of which he was convicted. He is charged with surreptitiously stealing a police shotgun when it was in Bogovich's possession and then falsely accusing Bogovich of carelessness in allowing the gun to be stolen. Defendant enlisted as an accomplice Ronald Weick, a patrolman who was defendant's friend and to whom defendant had shown special favor on the job.
On the night in question, Bogovich was on duty in the park, but on this occasion he had been given a patrol car with which to make his rounds. Officers using that car were issued a shotgun, which they were supposed to keep locked in a rack inside the car. However, the rack rarely was used because it was difficult to close and sometimes popped open when the car struck a bump. Instead, officers stored the gun under the seat. Knowing that Bogovich probably would store the gun under the seat, defendant decided that he would take the gun from the car when Bogovich was on a coffee break.
Defendant telephoned Weick, who was then on desk duty, and told him to report that he was sick so that another officer would take his place at the desk. Defendant then arranged with Weick to pick him up behind the police station. With Weick as a passenger, defendant drove around the Borough in his private station wagon waiting for Bogovich to stop at a coffee shop. After a while Bogovich parked his patrol car near a coffee shop and went in. Defendant parked nearby. While Bogovich was in the shop, Weick, at defendant's direction, entered the locked patrol car with a key that defendant had furnished, removed the shotgun from under the seat, returned to the station wagon and gave the gun to defendant, who later destroyed it. When Bogovich could not find the gun at the end of his tour, he reported it stolen. Defendant suspended him for five days, the maximum sanction available to defendant, for not keeping the shotgun locked in the rack, and recommended to the governing body that it impose a more severe sanction.
Weick, Corvelli's partner in crime, had disclosed the theft of Bogovich's weapon in order to gain a favorable plea in connection with a related offense.
In deciding in favor of partial forfeiture the ALJ applied the eleven-factor balancing test that we created in Uricoli, supra , to resolve the problem of "what constitutes dishonorable service justifying the forfeiture of earned pension benefits." 91 N.J. at 77, 449 A.2d 1267. We there held that the following factors should be considered and balanced:
(1) the employee's length of service; (2) the basis for retirement, i.e., age, service, disability, etc.; (3) the extent to which the employee's pension has vested; (4) the duties of the particular employment; (5) the employee's public employment history and record; (6) the employee's other public employment and service; (7) the nature of the misconduct or crime, including the gravity of substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated; (8) the relationship between the misconduct
and the employee's public duties; (9) the quality of moral turpitude or the degree of guilt or culpability, including the employee's motives and reasons, personal gain, and the like; (10) the availability and adequacy of other penal sanctions; and (11) other personal circumstances relating to the ...