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In re Disbrow

July 18, 2007

IN THE MATTER OF MICHAEL DISBROW.


On appeal from a Final Decision of the Board of Trustees of the Police and Firemen's Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2007

Before Judges Coburn, R. B. Coleman and Gilroy.

Appellant Michael Disbrow appeals from a Board of Trustees of the Police and Firemen's Retirement System Final Administrative Decision (Final Decision) dated November 15, 2005, denying his request for a waiver of age restrictions to allow enrollment in the Police and Firemen's Retirement System (PFRS).

The pertinent statutory provision prescribing eligibility for membership in PFRS states, in part:

[A]ny person becoming a full-time policeman or fireman in a county or municipality or fire district located in a township where, prior to the date this act takes effect, a pension under chapter 16 of Title 43 or article 4 of chapter 10 of Title 43 of the Revised Statutes for policemen or firemen has been established, shall become a member of this retirement system as a condition of his employment; he will be enrolled provided, that his age at becoming such full-time policeman or fireman is not over 35 years or if such person shall have met the requirement at the announced closing date of a civil service examination for such position and was appointed during the existence of the civil service list promulgated as a result of such examination; and further provided, that he shall furnish such evidence of good health at the time of becoming a member as the retirement system shall require. [N.J.S.A. 43:16A-3(1).]

The regulation, N.J.A.C. 17:4-2.5, addressing age restrictions provides, in pertinent part:

(a) Applicants must be appointed to an eligible title on or prior to their 35th birthday.

(b) The age of candidates for positions covered by the Police and Firemen's Retirement System with employers who have adopted the provisions of Title 11A of the New Jersey Statutes (Civil Service) is determined at the announced closing date of the examination offered by the Department of Personnel for those positions. Candidates must not be one day past the date of their 35th birthday on the announced closing date of the examination. Those candidates meeting the age requirements at that time will be considered as having met the age maximum requirement for the duration of the list promulgated as a result of such examination.

Appellant's date of birth is March 28, 1967. He was thirty-five years, five months, and nineteen days of age on September 15, 2002, the closing date for the applicable civil service exam. Although the regulation states that candidates must not be one day past the date of their thirty-fifth birthday on the announced closing date of the examination, appellant's name was placed on an Eligibility List certified by the State. As part of the pre-employment process, appellant participated in an interview, background check, medical examination, and psychiatric examination. On September 1, 2004, he was hired as a full-time paid firefighter by the City of Asbury Park (City). At that time, he left full-time work in his family's business and declined another job opportunity paying $85,000 a year in order to become a firefighter.

Upon starting work, appellant completed an application for enrollment in PFRS and assumed he would be enrolled, however, by letter dated November 29, 2004, the Division of Pensions and Benefits (Division) informed the City that appellant's application could not be processed because he was over the age permitted by statute. The Division advised that appellant should submit an application for the Public Employees Retirement System (PERS), since he was not eligible for PFRS enrollment.

On April 14, 2005, appellant filed an appeal with the PFRS Board, asking that the Board waive the age requirement and allow him to enroll. That request for a waiver was supported by John J. Murphy, Chief of the Fire Department of the City, who wrote to the PFRS Board requesting that the Board waive the age requirement as applied to appellant. In a letter dated May 16, 2005, the Board informed appellant that, at its May 9, 2005 meeting, it found he was statutorily precluded from membership in the PFRS. The letter stated:

While it is unfortunate that Mr. Disbrow accepted employment with the City of Asbury Park, it is the employee's and employer's responsibility to understand the pension laws. The City of Asbury Park should be carefully screening eligible candidates lists to ...


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