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Hemsey v. Board of Trustees

May 14, 2007

ABRAHAM HEMSEY, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.
DENNIS M. KEENAN, A-2117-05T3 PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from a Final Determination of the Board of Trustees, Police and Firemen's Retirement System, PFRS#3-10-22627 and PFRS#3-10-22451.

The opinion of the court was delivered by: S.L. Reisner, J.A.D

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 12, 2007

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

Dennis M. Keenan and Abraham Hemsey appeal from unfavorable final decisions of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS). Because the decisions were based on the same hearing record and concern related legal issues, we have consolidated their appeals for purposes of this opinion.

Based on our decision in Kossup v. Board of Trustees, Police & Firemen's Retirement System, 372 N.J. Super. 468 (App. Div. 2004), we affirm the Board's decision that Keenan was required to re-enroll in PFRS when he retired as Trenton's Fire Chief on May 31, 1998, and on the next day was re-hired as Trenton's Public Safety Director. However, we conclude that the Board was estopped from requiring Keenan to repay approximately $450,000 in pension benefits that he received prior to the Board's decision, because the undisputed record evidence establishes that Keenan accepted the Public Safety Director position in good faith reliance on advice from the Division of Pensions that he could do so without affecting his PFRS pension.

We affirm the Board's decision in Hemsey's case, because Hemsey, who retired as a police officer on October 1, 1998, was re-hired three months later as a "consultant" performing substantially the same functions that he had been performing before he retired. We agree with the Board that Hemsey served as an employee under the contract, and that Hemsey did not produce sufficient evidence to support a claim of estoppel.

I.

Keenan appeals from a Board decision dated November 15, 2005, requiring him to re-enroll in PFRS and repay approximately $450,000 in pension benefits. Keenan retired from the PFRS-covered position of Fire Chief for the City of Trenton on May 31, 1998, but he was appointed on June 1, 1998, to the position of Trenton Public Safety Director.*fn1 On July 12, 1999, Keenan was appointed as Fire Director, after the Public Safety Director position was abolished by referendum.

In Kossup, supra, 372 N.J. Super. at 473-74, we recognized that in order to benefit police and firefighters, the Legislature enacted N.J.S.A. 43:16A-3.1, which allows such employees to maintain their very valuable membership in PFRS when they accept promotions to certain civilian positions such as public safety director or fire director.*fn2 See also Jordan v. Harvey, 381 N.J. Super. 112, 118-19 (App. Div. 2005). The civilian positions are ordinarily covered by a different pension system with less-generous retirement benefits. However, N.J.S.A. 43:16A-3.1 gives these positions a "hybrid" status whereby a PFRS member who accepts such a position within six months after leaving a regular PFRS-covered job can remain in PFRS while serving in the civilian position. Kossup, supra, 372 N.J.Super. at 476-77.

In addition to construing section 3.1, Kossup addressed N.J.S.A. 43:16A-15.3, which prevents "double dipping" by requiring a PFRS member who retires and then obtains new employment in a PFRS-covered position to re-enroll in PFRS.*fn3

Kossup, supra, 372 N.J. Super. at 477-78. In Kossup we recognized that ordinarily an employee who retires from a PFRS-covered position and within six months of retirement takes a civilian police or fire director position, would be required to re-enroll in PFRS. Ibid. Kossup, however, was not subject to this requirement because he had reached the mandatory retirement age of sixty-five and, therefore, could not re-enroll in PFRS when he accepted a civilian director position. Id. at 478. Hence, we concluded that, for Kossup, the civilian director position was not a PFRS-covered position and he did not have to rescind his retirement and re-enroll in PFRS pursuant to N.J.S.A. 43:16A-15.3. Kossup, supra, 372 N.J. Super. at 478.

Unlike Kossup, Keenan retired voluntarily before reaching age sixty-five and he thus was still eligible to re-enroll in PFRS when, on the same day his retirement allowance commenced, he accepted the civilian position of Public Safety Director. We find no merit in Keenan's contention that the director job was not the type of position to which N.J.S.A. 43:16A-3.1 would apply. See Kossup, supra, 372 N.J. Super. at 474-75; Jordan, supra, 381 N.J. Super. at 118-19. See also Sponsor's Statement to S. 579 (enacted as L. 2000, c. 166) (acknowledging that "under current law" N.J.S.A. 43:16A-3.1 applied to public safety director positions).

There is substantial credible evidence in the record to support the Board's conclusion that the Public Safety Director "had supervisory and administrative authority over police and fire personnel that included the ability to appoint the police and fire chiefs as well as conduct the major disciplinary hearings for police and fire personnel." See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). See also N.J.S.A. 43:16A-3.1. Keenan conceded that the Director's duties also included setting "policy that applied to all three divisions" of the department namely "police, fire and communications." Therefore, the Board correctly concluded that for Keenan the position was a PFRS-covered position under N.J.S.A. 43:16A-3.1, and N.J.S.A. 43:16A-15.3 required Keenan to re-enroll in PFRS. There is no dispute that the Fire Director position that Keenan accepted in July 1999, was also the type of administrative or supervisory job to which N.J.S.A. 43:16A-3.1 would apply. See Kossup, supra, 372 N.J. Super. at 476-78.

While we agree with the Board that Keenan was required to re-enroll in PFRS, we part company with the Board on the requirement that Keenan repay approximately $450,000 in retirement benefits he had already received. While mindful of the limited scope of our review of an agency's factual findings, we do not simply rubber-stamp those findings, and our review of the agency's legal conclusions is considerably less deferential. See id. at 472-73; Fairweather v. Pub. Employees' Ret. Sys., 373 N.J. Super. 288, 295 (App. Div. 2004). In this case, we conclude that the Board's factual ...


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