On appeal from a Final Administrative Decision of the Board of Trustees, Public Employees' Retirement System, Docket No. 2-10-204343.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Payne and Messano.
Petitioner Romeo Cascaes appeals from a final administrative decision of the Board of Trustees, Public Employees' Retirement System (PERS), declaring him ineligible for retirement benefits and requiring the return of benefits paid to date in the amount of $22,323.68. We affirm.
Cascaes became a member of PERS in February 1, 1968, while employed as Data Processing Manager for the Board of Chosen Freeholders of Monmouth County. In January 1, 1972, he acquired dual membership in PERS when he enrolled as a Township Committeeman for the Township of Freehold, an elective position that he kept until appointed to fill the position of Acting Freehold Township Clerk in or around December 1, 1976. Cascaes was elected to the position of Township Clerk in the general election of 1977 and reelected in 1980 for the term commencing on January 1, 1981 and ending on December 31, 1983.
By statute effective January 6, 1982, the Legislature enacted N.J.S.A. 40A:9-133.1, which transformed the office of municipal clerk*fn1 into an appointed one with the goal of enhancing professionalism. It provided:
a. The provisions of any other law to the contrary notwithstanding, commencing on the effective date of P.L.1981, c.394, all municipal clerks shall hold office by virtue of appointment pursuant to the provisions of N.J.S. 40A:9-133, except as otherwise provided in this section.
b. All municipal clerks holding office on the effective date of P.L.1981, c.394 shall continue in office until their successors are appointed in the manner provided by N.J.S. 40A:9-133.
See also 40A:9-133(a) (requiring that "[i]n every municipality there shall be a municipal clerk appointed for a three-year term by the governing body of the municipality.").
Cascaes continued to serve in the appointed position of township clerk following the passage of N.J.S.A. 40:A9-133.1. However he never formally received an appointment to that position. Moreover, though no further elections for township clerk were held, Freehold did not revise its ordinance to define the position as appointive until some time after December 2005. In November 1999, Cascaes wrote to the New Jersey Division of Pensions and Benefits to inquire whether he would be eligible for pension benefits if he retired from his employment with Monmouth County while retaining his position as Freehold Township Clerk, which he characterized as an elective one. His letter stated:
I have been the elected Township Clerk of the Township of Freehold since 1977. Currently, I am also the Director of Public Information for the County of Monmouth.
Some years ago, legislation was enacted permitting elected officials to retire from a position with in [sic] the [PERS] and yet at the same time retain their elected positions.
Would you kindly let me know whether I, as the elected Township Clerk, fall under this exemption should I decide to retire from my ...