On appeal from Final Administrative Action of the Merit System Board.
Pressler, Dreier and Kleiner. The opinion of the court was delivered by Pressler, P.J.A.D.
Under N.J.S.A. 40A:14-127, a person over the age of 35 is not eligible for appointment as a member of a local police department. N.J.S.A. 40A:14-127.1, first enacted by L. 1979, c. 461, modified that rule by permitting appointment of a person over 35 who had previously served as a police officer provided that at the time of appointment that person's actual age subtracted by the number of years of the prior service not exceed 35. The question of first impression raised by this appeal is whether the modified-age provision of N.J.S.A. 40A:14-127.1 applies to persons whose prior police service was not in this state. We hold that it does and therefore reverse the contrary decision of the Merit System Board.
The factual context in which the question is presented is not in dispute. Appellant Frank P. Lucas, Jr., whose thirty-fifth birthday was on February 26, 1987, applied to sit for a police officer examination with an announced closing date of February 13, 1988. He was admitted to and successfully completed the examination, was appointed as a police officer by the City of Newark, and entered the Police Academy for training in March 1991. Pursuant to the subsequent determinations by the New Jersey Department of Personnel and the Division of Pensions, Police and Firemen's Retirement System (PFRS), the Acting Police Director of the Newark Police Department dismissed appellant from the Police Academy in June 1991 on the ground that his age on the closing
date of the examination rendered him both ineligible for appointment pursuant to N.J.S.A. 40A:14-127 and ineligible for mandatory enrollment in PFRS as required by N.J.S.A. 43:16A-3. According to the record, Lucas was nevertheless retained in employment status and permitted to complete his training pending his appeal to the Merit System Board.
On appeal to the Board, Lucas relied on the fact that he had served as a municipal police officer in the police departments of Virginia Gardens, Florida, and Miami Springs, Florida, between July 1979 and December 1982. He contended that deduction of that two-and-a-half-year period from his age of 36 on the date of the closing of the examination made him eligible for appointment under N.J.S.A. 40A:14-127.1. The Merit System Board, for reasons we discuss hereafter, affirmed the local action, concluding that N.J.S.A. 40A:14-127.1 applies only to persons previously enrolled in PFRS and hence must perforce exclude persons whose prior police service was out of state since such persons could not, by definition, have been prior PFRS enrollees.
Explanation of our reasons for disagreeing with the Merit System Board's holding requires a foray into the legislative history of N.J.S.A. 40A:14-127.1 to -127.3 (the Act). As originally introduced in February 1979, section 1 of Senate No. 3127, ultimately enacted as N.J.S.A. 40A:14-127.1 by L. 1979, c. 461, § 1, read as follows:
Notwithstanding the provisions of any other law to the contrary, any former municipal policeman who has separated from service voluntarily, and not by removal for cause on charges of misconduct or delinquency, shall be deemed to meet the maximum age requirement for appointment established by N.J.S. 40A:14-127, if his actual age, less the number of years of his previous service as a policeman, would meet the maximum age requirement established by said section.
Section 2 of the original Senate Bill, enacted as N.J.S.A. 40A:14-127.2, provided that a person appointed under section 1 was not exempt from the general appointment qualifications prescribed by N.J.S.A. 40A:14-122. Section 3 of the original Senate Bill, enacted as N.J.S.A. 40A:14-127.3, provided as follows:
The Board of Trustees of the Police and Firemen's Retirement System of New Jersey shall accept as a member of the retirement system any policeman otherwise eligible for membership appointed pursuant to this act, provided that he shall contribute to the retirement ...