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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ascertain that they will meet the eligibility requirements in the PFRS.
The Board noted that, although it had previously recognized reasonable reliance arguments in granting waivers, since 2002 it could no longer entertain such arguments due to the passage of time.
On June 10, 2005, appellant appealed the Board's determination of May 16, 2005, and requested additional time to appeal the Board's decision in order to seek further documentation regarding the case-by-case analysis of several other applicants. On August 3, 2005, the Division's Assistant Director provided appellant's counsel with the files of each of the individuals requested, and on September 15, 2005, appellant requested that the Board reconsider its previous determination that appellant was overage and could not be enrolled in the PFRS. On October 18, 2005, the Board informed appellant it had voted during the October 2005 meeting to reaffirm its earlier decision.
In a letter dated October 20, 2005, the Division, to which appellant had applied pursuant to the recommendation of the Board, denied appellant entry into the retirement system for public employees, PERS. The Division determined the provisions of N.J.S.A. 40A:14-44 do not apply because the City of Asbury Park is strictly a paid fire department.*fn1
Thereafter, on November 15, 2005, the Board issued its Final Decision. The Final Decision reiterated the denial of appellant's request to enroll in the PFRS, stating:
Subsequent to the [decisions of other PFRS applicants], the Board has held since 2002 that the employer or the employee may no longer make a reasonable reliance argument due to passage of time. . . . The enforcement of the maximum hiring age in the PFRS has been in effect since February 25, 1997, which is over seven and one half years from the date that Mr. Disbrow was hired.
Based on the length of time that has gone by, the Board can no longer find any legitimate equitable factors that would warrant an exception in Mr. Disbrow's case.
On appeal, appellant contends that the Board's decision to stop granting waivers of the age requirement for enrollment in PFRS is arbitrary, capricious and unreasonable. He emphasizes that the Board has given waivers in the past, and failed to identify any facts and circumstances that make his situation different from those police officers and firefighters who have been waived into PFRS. We agree, and order that the matter be remanded for a case-by-case analysis.
The Board has the "inherent power to waive de minimis violations of objective standards." SMB Assocs. v. New Jersey Dep't of Envtl. Prot., 264 N.J. Super. 38, 59 (App. Div.), aff'd, 137 N.J. 58 (1994). A memo from the Attorney General's Office on May 3, 2000, advised the Board that "reasonable reliance" was a factor supporting a decision not to force the firing of an employee whose hiring was an innocent error. The memo advised the Board that it had the power to grant PFRS membership, notwithstanding the maximum hiring age for applicants, if satisfied that the failure to comply with the age limits was not unreasonable and that the particular equities in the applicant's personal situation mitigated against the loss of employment.
There is nothing in the record to suggest that either the City of Asbury Park or appellant was on notice that the Board would no longer consider, on a case-by-case basis, requests to waive the age requirement for enrollment in PFRS after 2002. Therefore, it was arbitrary for the Board to refuse to consider the merits of appellant's application solely because of the passage of time. The May 3, 2000 memo from the Attorney General's Office confirms the Board's power to waive the maximum age requirement for entry into the PFRS. There is evidence that at least eleven people had been waived into the PFRS between 1998 and 2002, thus demonstrating that the Board did in fact exercise this power. None of the paperwork on the eleven overage hires included in the record gives any indication as to how the Board made the decision to waive the age requirement or that their circumstances differed materially from appellant's circumstances.
Indeed, from the limited information we have on the eleven men and women who were overage hires admitted to PFRS, there seems to be little difference between their circumstances and those of appellant. For example, Suzanne Gardner, who was thirty-five years and two months old at the closing date of the examination, was admitted to PFRS. The Board based its decision on Gardner's "unique circumstances" and some correspondence; this correspondence highlights Gardner's twelve-year dream of becoming a firefighter and her departure from her previous work in reliance on her offer to join the New Brunswick Fire Department. Similarly, appellant left his prior position in his family business, and also turned down a job offer with Verizon for $85,000 a year, in order to pursue his lifelong dream of becoming a full-time paid firefighter. In addition, appellant had eighteen years of volunteer firefighting experience, thus demonstrating his great desire to become a full-time firefighter.
Reviewing the records of the eleven overage hires, it seems their arguments generally related to fairness and reasonable reliance. Those same arguments hold true for appellant, who reasonably relied on the City's offer of employment and believed he was eligible for employment as a firefighter and PFRS enrollment. It would appear to be inequitable to deny appellant entry, and thus terminate his employment, without the Board explaining how and why appellant was denied a waiver. We are mindful of the limited scope of our review. In re Taylor, 158 N.J. 644, 656-57 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We, nevertheless, direct that the Board engage in a thorough analysis of appellant's circumstances, rather than summarily dismissing appellant's application.
"[W]ith respect to public entities, equitable considerations are relevant in evaluating the propriety of conduct taken after substantial reliance by those whose interests are affected by subsequent actions." Skulski v. Nolan, 68 N.J. 179, 198 (1975). See also Summer Cottagers' Ass'n v. Cape May, 19 N.J. 493, 504 (1955) (noting that an act induced by the conduct of another may work an estoppel to avoid wrong or injury resulting from reasonable reliance upon such conduct). In Skulski, the Court applied equitable considerations, taking into account: (1) the applicant's subjective good faith belief that he was entitled to benefits; (2) the extent of the applicant's change of position in reliance on the initial pension grant; and (3) the extent to which the applicant's reliance has foreclosed alternate opportunities for pension benefits. Skulski, supra, 68 N.J. at 199-201.
In this case, appellant clearly relied on the City and State's determination that he was an eligible firefighter. Appellant participated fully in the pre-employment process, including an application, interview, a background check, medical examination, psychiatric examination, and written examination. Pursuant to other requirements for becoming a firefighter with the City, appellant attended a sixteen-week emergency medical technician training course. He naturally assumed that he would receive the same pension and retirement benefits as his fellow firefighters. Appellant left his job with his family's business, and declined a job offer where he could have made $85,000 a year, in order to fulfill a lifelong dream to become a full-time paid firefighter. He is the sole wage-earner for his wife and two children, one of whom has Down's Syndrome. Appellant's reasonable reliance presents a prima facie case for an equitable waiver and the Board must engage in a case-by-case analysis to explain why no waiver should be given.
This court is obligated to "strike down any arbitrary action or administrative abuse which undermines procedural 'fairness' in the administrative process." O'Neal v. New Jersey State Parole Bd., 149 N.J. Super. 174, 186 (App. Div. 1977). Here, the Board failed to engage in any analysis of how appellant's circumstances compared with those who were waived into PFRS. Firefighter Disbrow has been employed by the City since September 1, 2004, and the Board should have engaged in a case-by-case analysis before denying his application for a waiver.
Reversed and remanded for further proceedings consistent with this opinion.