On appeal from Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-22954.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
Ronald Riccie, formerly employed as an officer of the West New York Police Department, appeals from a final determination of the Board of Trustees of the Police and Firemen's Retirement System. We affirm substantially for the reasons stated by the Board in its written decision of April 20, 2004.
Riccie retired on December 1, 1998. He had twenty-seven years and eight months of service at the time of his retirement, which entitled him to an enhanced pension benefit. In October 2000, however, Riccie entered into a plea agreement in which he acknowledged that while investigating the scene of a fire in January 1996, he and other officers from his police department found $60,000, which they divided and converted to their own use. Riccie was sentenced for the federal crime on February 23, 2001.
On January 24, 2002, the Board considered whether Riccie's pension benefit should be reduced because of his plea of guilty to a federal crime he committed while he was performing his duties as a law enforcement officer. Riccie was represented by an attorney who presented argument and evidence of Riccie's commendable conduct as a police officer. The Board determined that Riccie should forfeit only that portion of his benefit attributable to service after the date of his criminal conduct and denied his subsequent motion for reconsideration. On Riccie's request, the matter was referred to the Office of Administrative Law for a hearing. The Administrative Law Judge (ALJ) determined that the forfeiture ordered by the Board was excessive and recommended that the Board base Riccie's pension benefit on an additional seventeen months of creditable service.
The Board accepted the ALJ's findings of fact but concluded that the ALJ gave too little weight to the gravity of the crime, its relationship to Riccie's public duties and the moral turpitude it demonstrated. Accordingly, the Board affirmed its prior decision and reduced Riccie's creditable service by the thirty-five months of service that followed Riccie's use of his position as a law enforcement officer to commit a crime involving moral turpitude and personal gain.
Riccie argues that the Board's determination results in a forfeiture of his pension benefits that is excessive and inconsistent with N.J.S.A. 43:1-3. The claims lack sufficient merit to warrant more than the following brief comments on his statutory argument. R. 2:11-3(e)(1)(E).
Riccie's statutory claim is based on subsection d of N.J.S.A. 43:1-3. That provision directs calculation of a partial forfeiture based on criminal conduct on the employee's service prior to "the date the misconduct first occurred," unless "termination as of that date would in light of the nature and extent of the misconduct result in an excessive pension or retirement benefit or in an excessive forfeiture . . . ."
N.J.S.A. 43:1-3d. It establishes an exception to the generally applicable formula for calculation of a reduced pension benefit for use in exceptional cases in which application of the formula would lead to either an excessive benefit or an excessive reduction of benefit.
In awarding Riccie a partial forfeiture and selecting the amount of his service that would be credited, the Board noted Riccie's "years of honorable service and that the January 18, 1996 criminal incident was isolated." The Board also noted, however, that Riccie's theft was directly related to his employment and involved both moral turpitude and personal gain. After considering "all the evidence" the Board determined that Riccie's service between January 1, 1996 and December 1, 1998 was "all dishonorable service." As the Attorney General persuasively argued before this court, the Board's conclusion that the forfeiture was not excessive "in light of the nature and extent of the misconduct" and the date of Riccie's misconduct is implicit in the Board's decision.
We reject Riccie's suggestion that the statutory reference to excessive benefits and forfeitures requires the Board to compare the dollar value of the various options in every case. The statutory standard calls for an inquiry like the one the Board undertook in this case, which is to focus on the date, nature and extent of the misconduct. In this case an experienced police officer, whose duty was to enforce the law, committed a crime for personal profit less than three years before his retirement. We see no basis for any argument that forfeiture of less than three of his more than twenty-seven years of service was excessive. This is not a case in which a rookie officer committed a trivial offense during the first week on the job and served honorably for years thereafter, which are circumstances that may well warrant a finding that a forfeiture of service from the date of the crime would be excessive. Nor is it a case in which a veteran officer committed an egregious crime on the last day on the job, which are circumstances that may well warrant a finding that a forfeiture of service based on the date of the crime would result in an excessive benefit.
The Board's determination of this case is consistent with the law, supported by substantial credible evidence in the record, neither arbitrary nor capricious, and entitled to this court's deference. Corvelli v. Bd. of ...