On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, Division of Pensions and Benefits, Docket No. 739634.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
Joseph Manzella appeals from the March 22, 2007 final decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), which denied his application for deferred retirement. The Board determined that he was disqualified from eligibility for deferred retirement because he had been removed for cause from his positions as Tax Collector, Finance Officer and Town Administrator with the Township of Rochelle Park (Township). We affirm.
On January 1, 1987, Manzella established membership in PERS and continued as a member of PERS until he was involuntarily terminated from his employment with the Township on October 19, 2005. Specifically, on May 20, 2005, Manzella was charged by the Bergen County Prosecutor's Office with theft by deception after he submitted a fraudulent financial voucher to the Township for attending a seminar that he did not attend. On October 19, 2005, Manzella pled guilty to theft by deception as a disorderly persons offense.*fn1 That same day, the Township adopted Resolution No. 2005-106, which converted Manzella's suspension into a formal termination of his employment. The resolution specifically provided that the termination was "in accordance with the provisions of N.J.S.A. 2C:51-2, which requires the forfeiture of public office for any person convicted of a criminal offense involving or touching said public office." The resolution was effective immediately.
On January 20, 2006, Manzella was sentenced to a one-year term of probation. In accordance with the provisions of N.J.S.A. 2C:51-2, which required him to forfeit public office because his conviction for theft by deception touched upon his public position, Manzella executed a consent order to forfeit public office. He signed that consent order on July 3, 2006.
After he was sentenced on March 13, 2006, Manzella filed an application for a deferred retirement allowance*fn2 with PERS to be effective July 1, 2007. On December 20, 2006, the PERS Board determined that because Manzella had been removed for cause, the provisions of N.J.S.A. 43:15A-38 barred him from receiving the benefit of a deferred retirement. The Board did, however, permit Manzella to withdraw the contributory share of his accumulated pension contributions. Manzella filed an appeal from the Board's December 20, 2006 determination and requested a hearing before the Office of Administrative Law (OAL). On February 21, 2007, the Board denied Manzella's request for an OAL hearing, determining that there were no issues of material fact that required a hearing. The Board also reiterated its earlier conclusion that N.J.S.A. 43:15A-38 was clear and unambiguous, and precluded granting Manzella the deferred retirement that he sought.
On appeal, Manzella contends that: 1) a recent amendment to N.J.S.A. 43:1-3, which limits forfeiture of retirement benefits only to those instances where the amount of the theft exceeds $10,000, must be applied retroactively; 2) the provisions of N.J.S.A. 43:15A-38 must be read in pari materia with other pension legislation; 3) the Board erred by failing to apply the criteria articulated in Uricoli v. Board of Trustees, Police & Firemen's Retirement System, 91 N.J. 62 (1982); 4) the Board was prohibited from denying his deferred retirement application because he was convicted of "a mere disorderly persons offense"; and 5) he was not removed for cause.
We review Manzella's contentions in accordance with our scope of review. An appellate court will not upset the ultimate determination of an administrative agency unless the agency's determination was arbitrary, capricious or unreasonable, or the agency's decision violates express or implied legislative policies. Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963).
We are satisfied that the Board correctly determined that Manzella's application for deferred retirement was barred by N.J.S.A. 43:15A-38. That statute provides in pertinent part:
Should a member of the Public Employees' Retirement System, after having completed 10 years of service, be separated voluntarily or involuntarily from the service, before reaching service retirement age, and not by removal for cause on charges ...