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Marzarella v. Ocean County Board of Chosen Freeholders

March 20, 2008

SAMUEL J. MARZARELLA, PLAINTIFF-APPELLANT,
v.
OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS, OCEAN COUNTY PROSECUTOR'S OFFICE, AND E. DAVID MILLARD, DEFENDANTS-RESPONDENTS, AND BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5216-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges Lintner and Sabatino.

This negligence case, brought against several public entities and a public employee, arises out of a delay in the rehiring of plaintiff as an assistant county prosecutor. As a result of the delay, plaintiff missed the opportunity to be eligible for certain enhanced pension benefits. The Law Division granted defendants summary judgment pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Plaintiff appeals, and we affirm.

Plaintiff, Samuel J. Marzarella, was admitted to the New Jersey bar in 1985. From September 1985 through December 1991, plaintiff served as an assistant prosecutor in the Ocean County Prosecutor's Office ("the Prosecutor's Office"). Following those six years as a prosecutor, plaintiff engaged in the private practice of law, initially as a solo practitioner and then with a small law firm that he joined in 2000. Plaintiff also has taught for several years at Ocean County College.

In 2001 plaintiff became interested in rejoining the Prosecutor's Office. Toward that end, plaintiff was interviewed on June 27, 2001 by E. David Millard, who was then the Ocean County Prosecutor.*fn1 At the end of the interview, Millard told plaintiff that he wanted to rehire him as an assistant prosecutor. Plaintiff told Millard on the spot that he would accept that position.

According to plaintiff's complaint, he was not specifically advised during his job interview that his rehiring was subject to a vacancy arising in the Prosecutor's Office, or, alternatively, subject to the Ocean County Board of Chosen Freeholders ("the Freeholders") approving the creation of a new Drug Court program in Ocean County and funding additional prosecutor slots for that program. Although defendants have not admitted these contentions, we accept them as true for purposes of the appeal of summary judgment dismissing plaintiff's claims. See R. 4:46-2.

The following week, plaintiff resigned from his law firm, in anticipation of resuming his career as a prosecutor. Plaintiff also submitted to background checks required for his reappointment. Plaintiff met with Millard again on July 31, 2001, and they discussed a swearing-in ceremony tentatively contemplated for August or September 2001.

As part of the paperwork needed to rehire plaintiff, Millard signed and transmitted a personnel action request form to the County's employee relations office. The form, which is undated, reflects that plaintiff was to be rehired as a supervising assistant prosecutor, at a requested salary of $68,582. The form specified a requested effective date of appointment of October 15, 2001.*fn2 The section of the form calling for a specification of whether the appointment was to replace a departing employee, or to fill a new position approved in the budget, was left blank.

For reasons that are not entirely clear from the record, plaintiff's rehiring stalled for several months.*fn3 Meanwhile, in early January 2002, Millard resigned as County Prosecutor to assume his judicial duties. Millard's successor, Prosecutor Thomas Kelaher, signed and submitted a new personnel action form for plaintiff on January 28, 2002. This form, unlike the preceding form signed by Millard, specified that plaintiff would be a new hire resulting from the creation of the Drug Court. The form listed a salary of $70,500, slightly higher than the salary reflected on the original personnel form. The form requested an effective hire date of March 25, 2002. Plaintiff accordingly was sworn in as an assistant prosecutor on March 25, 2002.

In the meantime, the Legislature coincidentally enacted a statutory amendment on January 7, 2002, L. 2001, c. 366, creating a new Prosecutors Part within the Public Employees' Retirement System ("PERS"). See N.J.S.A. 43:15A-155 to -161. The amended statute, which became effective on the same date it was enacted, enhances the pension benefits of certain law enforcement personnel statewide, including prosecutors and assistant prosecutors, above the regular benefits provided to PERS retirees.

Plaintiff has sought to take advantage of the amended statute by attempting to transfer his accrued thirteen-and-a-half years in the PERS system, arising from his prior government service as an assistant prosecutor and college instructor, to the new Prosecutors Part program. To date, however, plaintiff has been unsuccessful in doing so, by virtue of regulations adopted by the State Division of Pensions on June 21, 2004, N.J.A.C. 17:2-8.1 to -8.16 (amended in part 2007). The regulations limit eligibility for the transfer of accrued time in the PERS system to the Prosecutors Part to persons who were employed in prosecutor's offices or other specified law enforcement titles as of January 7, 2002, the date that the legislation was enacted. Because plaintiff was not employed as an assistant prosecutor on that date, the Division of Pensions has denied his request to transfer his prior time.*fn4

On September 13, 2004, plaintiff served a tort claims notice on Millard, the Prosecutor's Office, the Freeholders and the State of New Jersey, alleging that the delay in his rehiring caused him to lose the opportunity to transfer his years of prior PERS service and thereby receive an enhanced pension in the Prosecutors Part. Thereafter, on July 3, 2006, plaintiff filed a complaint in the Law Division against the Freeholders, the Prosecutors' Office, Millard (collectively, "the County defendants"), the PERS Board of Trustees, and unspecified fictitious defendants. The complaint, as amended, alleges that the County defendants unreasonably delayed in effectuating his appointment and swearing-in ceremony, ...


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