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Matter of Eligibility of Certain Assistant Union County Prosecutors to Transfer to PFRS under N.J.S.A. 43:16A-1 et seq.

May 27, 1997


On appeal from Board of Trustees, Police and Firemen's Retirement System.

Approved for Publication May 27, 1997.

Before Judges Baime, P.g. Levy, and Braithwaite. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by


This appeal presents difficult questions having significant financial ramifications on New Jersey public employee pension systems. At issue is whether assistant county prosecutors qualify as "policemen" and are eligible for membership in the Police and Firemen's Retirement System (PFRS). The statutory definition of policeman includes "an administrative or supervisory employee of a law enforcement unit . . . whose duties include general or direct supervision of [persons] engaged in investigation, apprehension, or detention activities or training responsibility" and who also engages in police work when needed. N.J.S.A. 43:16A-1(2)(a). Following a protracted evidentiary hearing, the Board of Trustees of the PFRS concluded that the Legislature did not intend to extend membership to law enforcement positions not engaged in traditional police activities. We agree and affirm the Board's decision essentially for the reasons expressed in its written determination.


In December 1989, then Union County Prosecutor John Stamler petitioned the Division of Pensions and Benefits to authorize the transfer of all Union County Assistant Prosecutors from the Public Employees' Retirement System (PERS) into the PFRS. The petition was prompted by the more generous retirement benefits granted by the PFRS. Under applicable statutes andregulations, a member of PERS who retires at age fifty is entitled to benefits consisting of 36% of his final salary. N.J.S.A. 43:15A-41(b),

-48. In contrast, a member of PFRS who retires with twenty-five years of service at any age receives benefits totalling 65% of his final salary. N.J.S.A. 43:16A-11.1.

The petition remained dormant until June 1992, when Stamler's successor, Andrew Ruotolo, renewed the request for a transfer. After the Board denied the application, the assistant prosecutors remaining in the case, David J. Hancock, Richard P. Rodbart, and Henry W. Jaeger, requested a hearing. The matter was transferred to the Office of Administrative Law as a contested case. The facts were stipulated by the parties. The administrative law Judge rendered an initial decision in which he recommended denying the assistant prosecutors' application. The Board adopted the ALJ's decision. The assistant prosecutors appealed.

In an unpublished opinion, we remanded the matter to the Board for a full evidentiary hearing. We noted that the amendatory legislation enacted in 1989 deleted a list of employment titles which were approved for membership in the PFRS and replaced it with generic criteria for eligibility. N.J.S.A. 43:16A-1(2)(a). We concluded that the Legislature intended the determination of eligibility for membership in PFRS to hinge upon a functional analysis of work duties and requirements rather than reference to a list of descriptive job titles. We added that Hancock, Rodbart, and Jaeger were at the top of the hierarchial administrative structure of the Union County Prosecutor's Office and thus were vested with supervisory responsibilities causing them to have strong links with county and municipal agencies. We stressed that the abbreviated record told us very little about the role of assistant prosecutors in the criminal Justice system. We envisioned that the remand hearing would serve to further develop the record pertaining to the precise manner in which assistant prosecutors conduct their duties, the nature and extent of their interaction with municipal, county, and state police officials, and the impact of their applications on other governmental offices and positions.

Candor requires us to observe that the extensive administrative proceedings that followed our remand order only partially fulfilled our expectations. The significant financial ramifications of including assistant prosecutors in the membership of PFRS were certainly clarified. Twenty-seven additional assistant prosecutors filed an application to transfer from PERS to PFRS, and their request was consolidated with the Hancock group. Union County was permitted to intervene in the consolidated proceedings. Through the testimony of the Director of the Division of Criminal Justice and other county prosecutors, it became apparent that approximately 800 assistant prosecutors and deputy attorneys general would be eligible for membership in PFRS if the statutory scheme were to be read as the assistant prosecutors urged.

Despite the admission of a plethora of organization charts and what fairly can be characterized as tales of derring do by several of the assistant prosecutors, the present record is not entirely informative with respect to the daily activities of the average assistant prosecutor. For example, several assistant prosecutors testified that they commonly participated in raids and arrests of dangerous criminals, and routinely are called to crime scenes where they supervise the collection of evidence. While we decide this case only on the record before us, we add that, as appellate Judges, we read literally thousands of transcripts each year, and it is extremely rare that we see the presence of assistant prosecutors performing these functions. Indeed, while assistant prosecutors are statutorily authorized to carry guns, N.J.S.A. 2C:39-6j, the record indicates that two Union County assistant prosecutors have been granted the right to carry a weapon. But, according to the hearing transcript, these individuals are commonly involved in dangerous investigations and the arrest of hardened and violent criminals. Several law enforcement officers presented by the Attorney General testified that assistant prosecutors rarely appear at crime scenes or make arrests, and that their activities are restricted to providing legal advice to the police, presenting cases to the grand jury and trying matters in court. Despite the conflicting evidence on these critical subjects, the ALJ made no specific findings resolving these issues.

The ALJ's initial decision is somewhat amorphous. The ALJ apparently found that assistant prosecutors routinely supervise police work, but concluded the Legislature did not intend to include them in PFRS. The ALJ thus recommended denial of the request to transfer. The Board disagreed with the ALJ's functional analysis of the duties of assistant prosecutors. Specifically, the Board found that the essential duties of assistant prosecutors are to present cases to grand juries, represent the State at trial and on appeal, and to engage in preparation for these activities. While noting that some assistant prosecutors may be deeply involved in investigations, the Board concluded that they are trained as lawyers, not as police, and that, even in their investigatory role, their primary function is to provide legal advice based upon their professional judgment. The Board observed that all county prosecutors' offices have twin chains of command - one pertaining to assistant prosecutors and the other relating to detectives and investigators. Although in a test of wills, perhaps the command decisions of assistant prosecutors might prevail over the decisions of the investigative staff, the Board added that ...

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