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In re O'Reilly

June 9, 2008

IN THE MATTER OF THOMAS J. O'REILLY.


On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, Docket No. 2-10-216024.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2008

Before Judges Wefing, Parker and Koblitz.

Petitioner Thomas J. O'Reilly appeals from a final administrative order from the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying his application for enhanced retirement benefits under the Prosecutors Part of PERS, N.J.S.A. 43:15A-155 to -161.

Petitioner has held a number of positions within the Attorney General's Office since 1978 when he was initially appointed to the Department of Law and Public Safety (Department), Division of Criminal Justice (DCJ), in the Attorney General's Office. On July 1, 2002, petitioner filed for early retirement, effective July 1, 2003. In a letter dated July 15, 2002, he requested enrollment in the Prosecutors Part and outlined his responsibilities in his various positions since 1978.

The "Prosecutors Part" of PERS was created in January 2002 when the Legislature enacted N.J.S.A. 43:15A-155 to -161 to enhance the retirement benefits for employees in DCJ. These employees are defined as "prosecutors" under N.J.S.A. 43:15A-155. Benefits available under the statute are similar to those available to members of the Police and Firemen's Retirement System (PFRS). See N.J.S.A. 43:16A-1 to -68 (for benefits under PFRS).

N.J.S.A. 43:15A-155, referred to as Chapter 366, defines those eligible to receive benefits under the Prosecutors Part as follows:

(1) a county prosecutor, first assistant prosecutor or assistant prosecutor as defined in [N.J.S.A. 16A:158-1 et seq.]; (2) the Director of the Division of Criminal Justice in the Department of Law and Public Safety; (3) an assistant director, deputy director, assistant attorney general or deputy attorney general in that department and assigned to that division pursuant to [N.J.S.A. 52:17B-97 et seq.]; or (4) a criminal investigator in the Division of Criminal Justice in the Department of Law and Public Safety who is not eligible for enrollment in [PFRS].

In February 2003, then-Attorney General Peter Harvey advised the Division of Pensions and Benefits (Division) of his initial determination of the employees eligible for a Prosecutors Part pension, including petitioner who was then serving in the title of Senior Executive Service III in the Attorney General's Office. Attorney General Harvey specifically stated his criteria for inclusion of employees in the Prosecutors Part, even though they may not currently be assigned to DCJ:

The employee is detached from his/her assignment in the Division of Criminal Justice to another division or office within the Department of Law and Public Safety and performs law enforcement functions on behalf of the Attorney General under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97, et seq. Additionally, the employee, prior to being detached from the Division of Criminal Justice, must have been eligible for enrollment in the Prosecutors Part [p]ension according to P.L. 2001, Chapter 366.

Defendant requested enrollment in the Prosecutors Part on July 15, 2002, two weeks after he initially filed for early retirement. On September 18, 2002, the Board approved petitioner's early retirement without indicating whether it was under the Prosecutors Part. On June 17, 2003, two weeks before his scheduled early retirement on July 1, petitioner extended his retirement date to June 30, 2004.

On September 22, 2003, the Division notified petitioner that he was eligible for Prosecutors Part benefits. The notice stated:

The Division of Pensions and Benefits has identified you as a Prosecutors Part member.

As such, we have updated your PERS account to reflect Prosecutors Part service credit, as of June 30, 2003, totaling 29 years, 6 months. Please note that this figure only reflects your service in the Prosecutors Part.

On April 23, 2004, petitioner extended his retirement date to June 30, 2005. On July 21, 2004, the Division reiterated its approval for petitioner's retirement in the Prosecutors Part.

Between 2004 and 2006, petitioner extended his retirement eight times. Each time it was approved by the Board. His last request for an extension, which expressly stated it was for the Prosecutors Part, was on August 15, ...


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