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Mastro v. Board of Trustees

Decided: July 23, 1993.

J. ALBERT MASTRO, APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT



On appeal from Board of Trustess, Public Employees' Retirement System.

Antell, Skillman and Villanueva. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This appeal requires us to apply the section of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-10(c), which provides that an initial decision of an Administrative Law Judge (ALJ) shall be "deemed adopted" if the agency fails to issue a final decision in a timely manner.

Appellant is a sixty-eight year old member of the New Jersey Bar who was employed as the municipal court Judge in Bernards and Passaic Townships and as the attorney for the Warren Township Sewerage Authority, the Tewksbury Township Planning Board and the Borough of Bernardsville. Appellant has been continuously enrolled in the Public Employees' Retirement System (PERS) since the 1960's, sometime after he became a municipal employee. While employed as the municipal court Judge in Bernards and Passaic, appellant was paid solely on a salaried basis, from which pension deductions were made. While employed by Bernardsville and the Warren Township Sewerage Authority, appellant was paid both a salary, which was pension qualified, and vouchered fees billed at an hourly rate, from which no pension deduction was made. While employed by the Tewksbury Township Planning Board from January 1, 1973 to January 1, 1987, appellant was paid solely on a vouchered basis, but effective January 1, 1987, he received a pension-qualified salary and also continued to bill on a vouchered basis for additional services.

The Warren Township Sewerage Authority terminated appellant's employment in September 1988, at which time he decided to retire. After representatives of the Division of Pensions advised appellant that he could continue after retirement to perform legal services for his former municipal employers on a non-salaried basis, appellant tendered his resignations from his remaining public positions and filed an application to retire on a veterans' retirement pension. The Board of Trustees of the Public Employees' Retirement System (the Board) approved appellant's application and he commenced receiving retirement benefits as of January 1, 1989.

Around the time of his retirement, appellant arranged to continue providing certain legal services for Bernardsville and the Tewksbury Planning Board. These arrangements involved submitting vouchers to the municipal agencies for actual services performed rather than receiving a regular salary. As a result, appellant was no longer covered by medical insurance and the municipal agencies did not make deductions for income tax, social security or unemployment compensation.

The Board subsequently concluded that appellant was still employed by Bernardsville and Tewksbury. Consequently, on April 26, 1989, the Board invalidated appellant's retirement, canceled his retirement benefits, and ordered him to refund all benefits paid to that date.

Following appellant's request for a hearing, the matter was transferred to the Office of Administrative Law as a contested case. On February 24, 1992, the ALJ issued an initial decision which concluded that appellant had not continued his employment relationship with Bernardsville and Tewksbury subsequent to his retirement and that the Board had erred in invalidating his retirement. The Board acknowledged receipt of the ALJ's decision on the same day it was issued.

On April 15, 1992, more than 45 days after receiving the ALJ's initial decision, the Board voted to reaffirm its original decision that appellant's retirement was invalid because he was still employed by Bernardsville and Tewksbury. The Board's decision was communicated to appellant by a pro forma letter dated April 23, 1992, which was not accompanied by findings of fact or Conclusions of law. Appellant filed a timely notice of appeal with this court. More than three months later, the Board issued its findings of fact and Conclusions of law.

N.J.S.A. 52:14B-10(c) provides in pertinent part:

A recommended report and decision . . . shall be filed . . . with the agency in such form that it may be adopted as the decision in the case and delivered or mailed, to the parties of record with an indication of the date of receipt by the agency head . . . . The head of the agency, upon a review of the record submitted by the administrative law Judge, shall adopt, reject or modify the recommended report

and decision no later than 45 days after receipt of such recommendations. Unless the head of the agency modifies or rejects the report within such period, the decision of the administrative law Judge shall be deemed adopted as the final decision of the head of the agency. . . . For good cause shown, upon certification by the director and the agency head, the time limits established herein may be subject to extension.

The Director of the Office of Administrative Law has implemented this section of the APA by adoption of N.J.A.C. 1:1-18.6 to ...


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