August 17, 2007
DONNA CAPRIO, APPELLANT,
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.
On appeal from a Final Notice of Administrative Action, Board of Trustees, Police and Firemen's Retirement System, PFRS-77148.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Yannotti and C.L. Miniman.
Donna Caprio appeals from a Final Notice of Administrative Action by the Board of Trustees (the Board), Police and Firemen's Retirement System (PFRS), denying her application to purchase service credit for the period starting November 12, 1993, and ending November 27, 1994. We affirm.
The facts were undisputed, obviating any need for referral to the Office of Administrative Law. Caprio applied for employment as a Sheriff's Officer with Monmouth County in 1993. Her name was removed from the eligible list based on a psychiatric evaluation. Caprio appealed her removal from the list to the Merit System Board (MSB). She alleged that the evaluation was discriminatory toward women. On September 12, 1994, the MSB issued a final administrative determination and found that the County had not met its burden of proving that Caprio was mentally unfit to effectively perform the duties of a Sheriff's Officer and, therefore, ordered that her name to be restored to the eligible list. Her permanent appointment date was fixed at November 12, 1993, but the MSB did not order an immediate appointment with full back pay. Caprio was hired as a Sheriff's Officer on November 28, 1994, and was enrolled in PFRS on December 1, 1994.
More than a decade later, Caprio sought to purchase service credit with PFRS for the period November 12, 1993, to November 27, 1994. The Division of Pensions and Benefits (the Division) submitted a request to the Monmouth County Hall of Records to obtain Caprio's employment history for the period in question.
The County confirmed that Caprio had not been on its payroll prior to November 28, 1994. The Division issued a denial letter to Caprio on January 5, 2006. Caprio did not respond to three subsequent requests for proof that she had received compensation from Monmouth County prior to her actual hire date. However, Caprio wrote on January 27, 2006, to Micki Billick, Supervisor, Division of Pensions and Benefits, indicating that her hire date was changed with the Department of Personnel but not with Monmouth County. Billick responded on February 2, 2006, indicating that although her date of hire had been changed, she was not physically employed for the period in question nor did she contribute to Social Security during that period. Caprio's application was denied and she appealed the denial to the Board.
On July 18, 2006, the Board issued its Final Administrative Determination. Relying on N.J.S.A. 43:16A-4 and N.J.A.C. 17:4-4.8, the Board concluded that Caprio was not eligible to purchase service credit because she had neither been awarded any back pay for the period in question nor had she rendered actual service. The Board stated, "The fact that the Department of Personnel restored Ms. Caprio to the eligible list for Sheriff's Officer, Monmouth County and changed her permanent appointment date to November 12, 1993, does not alter [the reality] that she did not render actual service and was not awarded back pay for this time period." Accordingly, the Board denied Caprio's appeal.
We begin our consideration of this appeal by restating applicable legal principles. The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Asst. & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
Caprio does not suggest that the action of the Board was constitutionally offensive; neither does she argue a violation of express or implied legislative policies. Furthermore, she does not dispute the sufficiency of the evidence to support the findings on which the agency based its action. Rather, she argues that the Board acted unreasonably in that it viewed her situation too narrowly because the action of the MSB should be seen as an attempt to restore her to the position she should have been given effective November 12, 1993, even though it did not award back pay. Thus, she contends that "[i]n the same manner that her appointment date was restated, her pension status under PFRS should be adjusted."
N.J.S.A. 43:16A-4 governs purchase of prior service credit. It provides:
Only service as a policeman or fireman paid for by an employer, which was rendered by a member since that member's enrollment, or since that member's last enrollment in case of a break in service, plus service, if any, covered by a prior service liability, shall be considered as creditable service for the purposes of this act. A member may purchase credit for temporary service as a policeman or fireman, or as the holder of a title which, following the termination of that temporary service, became covered by the provisions of P.L. 1944, c. 255 (C. 43:16A-1 et seq.), if that temporary service shall have resulted, without interruption, in a valid permanent or probational appointment as a policeman or fireman or to a position, the title of which became covered by the retirement system following the member's appointment thereto. The purchase shall be made in the same manner and be subject to the same terms and conditions provided for the purchase of previous membership service by section 1 of P.L. 1973, c. 63 (C. 43:16A-11.4). [Ibid. (emphasis added).]
N.J.A.C. 17:4-4.8 allows members to purchase service credit in situations where the member did not render actual service to the employer.
(a) A member shall receive service credit toward retirement for any month or biweekly pay period for which a full normal deduction is received by the Retirement System.
(b) A member who appeals the suspension or termination of the member's employment and who, by award or settlement, becomes entitled to back pay for all or a portion of that employment for the period of such suspension or termination shall receive service credit for the period covered by the award or settlement provided a full normal pension contribution is received from the member or deducted from the value of the award. The amount of the pension contribution will be determined by the provisions of the award or settlement. . . .
(c) In no case shall service or salary credit be given if the award of back pay, before mitigation, is less than the value of the normal pension contributions due. If a member waives an award of back pay, then the member cannot receive service or salary credit for the period of the award. [Ibid. (emphasis added).]
Here, it is undisputed that Caprio did not perform any actual service and did not receive any back pay. The fact that the MSB gave her service credit, presumably for seniority or other purposes within the scope of the MSB's authority, cannot be determinative of an entitlement to purchase PFRS service credit. The right to do so is clearly and unambiguously set forth in statute and regulation and does not permit purchase of service credits on these facts. Enforcing N.J.S.A. 43:16A-4 and N.J.A.C. 17:4-4.8 according to their terms cannot be found to be unreasonable. Indeed, the Board was constrained by statute to deny the application.
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