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Hemsey v. Board of Trustees

March 24, 2009

ABRAHAM HEMSEY, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE & FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 524 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this case the Court determines whether the Board of Trustees of the Police and Firemen's Retirement System (Board) properly cancelled the retirement allowance of a retired police officer and required him to re-enroll in the Police and Firemen's Retirement System (PFRS) when he became reemployed by the City of Trenton.

Hemsey was hired as a police officer by the City of Trenton on October 1, 1973, and spent much of his career as a police dispatcher assigned to the Communications Section. Around 1989, the City decided to have civilians handle the entire communications function, but it took a while to fully implement the change. In 1995, the last police dispatchers in the Communications Section were reassigned, leaving only civilians. Hemsey was placed on a special detail to develop a geographic file of addresses in the City to support transition to a computer-aided dispatch system.

On October 1, 1998, Hemsey retired from the Police Department and began receiving retirement benefits from PFRS. At the time of his retirement, Hemsey was a police officer -- patrolman detective by rank. On December 31, 1998, Hemsey and the City entered into an agreement entitled a "consulting contract." The agreement provided that Hemsey was to work under the direction of the Trenton Police Department Commanding Officer and a Fire Captain and would receive and record emergency calls for police, fire, and ambulance service. In addition, Hemsey's duties included monitoring transmission of alarms and dispatching personnel and equipment to proper locations, as well as training subordinate employees in the operation of the system.

In 1999, the Communications Section was transferred to the purview of the City's Department of Administration, and the position of Director of Communications was created. On July 12, 1999, more than nine months after his retirement from the police force, Hemsey was appointed to the civilian position of Director of Communications. In that position, he prepared the budget, established policies, and controlled discipline.

Sometime in 2001, the Division of Pensions and Benefits (Division) requested information from the City regarding Hemsey's employment. After reviewing the requested information, the Division informed the City by letter dated November 28, 2001, that Hemsey could continue to work in his position and receive his retirement benefits. On March 20, 2002, however, the Division notified the City that it had received a second inquiry regarding Hemsey's employment, and requested additional information. In July 2002, Hemsey appeared before the Board to answer questions regarding his employment status. He also provided written responses to the Board's inquiry. The Board informed Hemsey on October 22, 2002, that he was required to re-enroll in PFRS under N.J.S.A. 43:16A-15.3 because he was performing essentially the same PFRS job duties after retirement as he did prior to retirement. The Board cancelled Hemsey's retirement allowance retroactive to January 1, 1999, and required him to repay the benefits he had received.

Hemsey appealed, and the matter was heard as a contested case in the Office of Administrative Law. At the hearing before an Administrative Law Judge (ALJ), Hemsey testified that he did not supervise or exercise administrative duties over any police or fire personnel at any time after he retired in October 1998. Leonard Cipriano, a Trenton police officer and President of Trenton PBA Local 11, testified that two officers had told him that in the absence of their immediate supervisor, they believed they were under the command of Hemsey. These detectives, however, both testified and contradicted Cipriano's testimony. In part, they testified that Hemsey never supervised them. The ALJ concluded that the Board properly determined Hemsey was required to re-enroll in PFRS. The judge found that the written employment contract required Hemsey to evaluate and work with police and fire personnel and to train all subordinate employees.

The Board issued its final administrative decision in November 2005, agreeing with the ALJ that Hemsey was in a supervisory position over other PFRS personnel assigned to the Communications Center. Consequently, the Board cancelled Hemsey's retirement benefits, required him to re-enroll in PFRS, and ordered him to pay back most of the benefits he had received.

Hemsey appealed, and the Appellate Division affirmed in a published opinion. Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 393 N.J. Super. 524 (2008). The panel found sufficient credible evidence to support the Board's determination that both of Hemsey's post-retirement positions were covered by PFRS. The Supreme Court granted Hemsey's petition for certification. 196 N.J. 85 (2008).

HELD: It was error for the Board to cancel Hemsey's PFRS retirement benefits and to require him to re-enroll in PFRS. Hemsey did not satisfy the statutory requirements for mandatory re-enrollment because there was insufficient credible evidence to conclude that he exercised administrative or supervisory duties over police officers or firefighters.

1. To protect against a retired PFRS member receiving retirement benefits at the same time he or she is receiving a salary from a PFRS-covered position, N.J.S.A. 43:16A-15.3 provides in part that if a former member "becomes employed again in a position which makes him eligible to be a member of the retirement system," his retirement allowance is cancelled and he is to be reenrolled in the system. As it concerns this matter, a position is eligible for inclusion in PFRS if it satisfies the requirements of N.J.S.A. 43:26A-3.1. That section sets forth four requirements that an employee must establish to be eligible as a PFRS member: (1) current service with a law enforcement unit or firefighting unit; (2) in an appointive capacity; (3) with administrative or supervisory duties over police officers or firefighters; and (4) service as a member of that or any law enforcement or firefighting unit less than six months prior to any appointment. (pp. 11-14)

2. Hemsey's principal argument is that his position did not provide him with the statutorily required administrative or supervisory duties over police officers or firefighters to require him to re-enroll in PFRS. The evidence that Hemsey performed supervisory or administrative duties over police officers or firefighters is sparse at best. Cipriano's testimony, based on information he claimed to have received from two other police officers, was not substantiated by other evidence. The Board did not rely on that testimony, but instead looked to the language of Hemsey's contract. The Board focused on the provisions that authorized Hemsey to "evaluate and work with" a group of police and fire communication personnel, and to be responsible for "operating and training all subordinate employees." Apart from these contractual provisions, there was no evidence to suggest that Hemsey assigned work to any police officers or firefighters or that he evaluated or trained them. Simply stated, the Court concludes that there was insufficient credible evidence to support a finding that Hemsey's work as a Communications Section consultant satisfied the requirement of service in an administrative or supervisory capacity over police officers or firefighters. Additionally, Hemsey's appointment as civilian Director of Communications on July 12, 1999, was more than six months after his retirement as a police officer, and therefore did not satisfy the statutory mandate that an individual receiving PFRS-benefits must be rehired within six months of retirement to be eligible for re-enrollment. (pp. 14-18)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Board for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued November 17, 2008

In this case we determine whether the Board of Trustees of the Police and Firemen's Retirement System (Board) properly cancelled the retirement allowance of a retired police officer and required him to re-enroll in the Police and Firemen's Retirement System (PFRS) when he became reemployed, first as a civilian consultant to the City of Trenton's (City's) Communications Section and later, as Director of the Communications Section. The Board determined that the employee performed essentially the same duties as a consultant as he did prior to his retirement. As a result, it required him to re-enroll in PFRS and repay the benefits he had received. The Appellate Division affirmed. We disagree and hold that the employee did not satisfy the statutory ...


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