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Frost v. Board of Trustees


April 13, 2009


On appeal from the Board of Trustees, Public Employees' Retirement System, PERS #2-10-221407.

Per curiam.


Argued January 13, 2009

Before Judges Wefing, Parker and LeWinn.

Tina M. Frost appeals from the September 20, 2007 order of the Board of Trustees (Board) of the New Jersey Public Employees' Retirement System (PERS) denying her application for enhanced pension benefits under the so called "Prosecutors Part" of PERS. For the reasons that follow, we reverse and remand to afford petitioner the opportunity for a plenary hearing before the Office of Administrative Law (OAL).

From early 1988 to May 7, 2000, petitioner was an Assistant Prosecutor in the Middlesex County Prosecutor's Office; her enrollment in PERS was effective February 1, 1988. On May 8, 2000, petitioner transferred to the New Jersey Department of Law and Public Safety (Department), where she was assigned to the Office of State Police Affairs (OSPA) within the Office of the Attorney General; her title was Deputy Attorney General (DAG).

Petitioner's functions within the OSPA involved providing legal counsel and representation to the Division of State Police; training officers on issues in criminal law and procedure; researching criminal law issues on behalf of the OSPA; providing legal advice to members of the Attorney General and State Police Division headquarters; reviewing evidence and charges against individual officers and recommending dispositions, such as disciplinary proceedings or criminal charges; "prosecuting" State Police in disciplinary courts-martial; assisting the State Police recruiting committee in evaluating applicants; and representing OSPA on the search and seizure review board.

On April 16, 2005, petitioner transferred to the Division of Criminal Justice (DCJ). She retained her title of DAG and, according to petitioner, "despite the change in her organizational designation, she continued to perform duties she performed while assigned to [the] OSPA."

Shortly after her transfer to DCJ, petitioner wrote a letter to Frederick J. Beaver, Director of the Division of Pensions and Benefits (DPB), requesting enrollment in and credit under the Prosecutors Part of PERS, which had become effective on January 7, 2002, as opposed to the regular PERS section under which she had been credited up to that point. The DPB determined that petitioner was entitled to enrollment in the Prosecutors Part of PERS effective April 16, 2005, the date of her transfer to DCJ, and not for any earlier period.

Petitioner then sought to have her file transferred to the OAL as a "contested case" regarding the issue of whether all of her PERS service should be credited under the Prosecutors Part. PERS secretary Kathleen Coates advised petitioner that she must first appeal to the Board. Petitioner did so on September 22, 2006, and included an application for an early retirement allowance effective June 1, 2007.

Petitioner received notice that the Board would consider her case at its meeting of May 16, 2007, which she was invited to attend. Petitioner submitted a packet of documents in support of her position and made statements at the meeting.

In a letter dated May 22, 2007, the Board denied petitioner's request for Prosecutors Part retirement benefits for any time prior to April 16, 2005. The Board did, however, approve petitioner's application for early retirement benefits effective June 1, 2007, and petitioner retired on June 6, 2007.

Thereafter, in a letter dated July 6, 2007, petitioner appealed the Board's denial of Prosecutors Part pension benefits, and requested a hearing in the OAL. The Board denied the request, finding no disputed issues of fact warranting a hearing, and so informed petitioner by letter dated August 21, 2007. Petitioner received the Board's final administrative determination on September 20, 2007. This appeal followed.

The Prosecutors Part of PERS which took effect on January 7, 2002, enhanced retirement benefits for public employees statutorily defined as "prosecutors." If a member of PERS was serving as a "prosecutor" on that effective date, all of his/her regular PERS service credit was automatically transferred "retroactively" to the Prosecutors Part. N.J.S.A. 43:15A-156(a).

The statute defines "prosecutor" as

(1) a county prosecutor, first assistant prosecutor or assistant prosecutor as defined in N.J.S 2A: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 the Police and Firemen's Retirement System. [N.J.S.A. 43:15A-155.]

Petitioner fits none of these statutory classifications for the period from May 8, 2000 to April 16, 2005, as she was neither a county prosecutor nor a DAG assigned to DCJ. However, petitioner has asserted, and respondent has not disputed, that her job responsibilities for the OSPA remained unchanged during the entire term of her employment with the Department.

Among the documents petitioner submitted to the Board in 2007 was a letter from former Assistant Attorney General and Director of the OSPA, Martin Cronin, who had hired petitioner in 2000 and "confirm[ed] that [petitioner's] prior employment as an assistant prosecutor was a factor in [his] decision to hire her in the Office of State Police Affairs." Petitioner also submitted a January 6, 2003 memorandum from Assistant Attorney General, Thomas V. Manahan, the then-current director of the OSPA, to Thomas J. O'Reilly, Administrator of the Office of the Attorney General, which stated:

This memo is in response to your request for an analysis of the duties of Deputy Attorneys General ["DAsG"] assigned to [OSPA] regarding potential eligibility for inclusion in the Prosecutors Part Pension.

OSPA [is required to] provide advice to the Division of State Police on issues of constitutional law as it regards criminal practice and procedures. Toward that end, OSPA has been staffed with attorneys with many prior years of prosecutorial experience. The training and experience necessary to conduct review and analysis of cases presented to the Superintendent for referral to discipline or criminal investigation is that which only prosecutors have had. [It is instructive to review the backgrounds of those charged with the responsibility for providing legal advice to the Division from OSPA - virtually all have acted as assistant prosecutors or as DAsG in [DCJ]. . . .] [T]he office has been staffed by five former county Assistant Prosecutors, two former Deputies assigned to [DCJ] and by deputies fully conversant with the management of the New Jersey Division of State Police. Additionally, OSPA Deputies provide training directly to the law enforcement officers of the Division of State Police, review the training materials and methods of law enforcement engaged in by Division of State Police members and conduct compliance overview through the analysis of management performance data . . . .

Approximately 75% of the work of OSPA consists of the prosecution of internal affairs cases against members of the Division and the provision of legal advice to the Superintendent on these matters. For all intents and purposes, the duties of the OSPA for the New Jersey Division of State Police are equivalent to those performed by the Division of Criminal Justice Deputies for all law enforcement entities other than the New Jersey State Police. . . . One-hundred percent of the service provided to the New Jersey State Police by OSPA consists of comprehensive legal advice to the premier and largest statewide law enforcement agency with jurisdiction in every municipality in the state. The law enforcement mission of the New Jersey State Police is self[-]evident. The Deputies of OSPA are responsible for providing legal advice to Troopers on issues which include the securing of search and arrest warrants; the decision to engage in activities such as search and seizures, motor vehicle stops, arrests, and the administration of tests for intoxication and passenger safety. These are the critical operation of the State Police. The daily involvement of OSPA in them is indicative of how OSPA Deputies have been and will continue to be fully engaged in the furtherance of the law enforcement mission of the Department.

The Manahan memorandum to O'Reilly was part of then-Attorney General Peter Harvey's effort to establish criteria for employees of the Department who, although not assigned to DCJ, might otherwise be eligible for the Prosecutors Part benefits.

On June 21, 2004, PERS adopted N.J.A.C. 17:2-8.2 which provided, in pertinent part:

Employees of the Department of Law and Public Safety who are not assigned to [DCJ] shall be eligible for enrollment in the Prosecutors Part provided they satisfy one of the following criteria:

1. The employee is assigned to a unit that has a specific delegation of authority under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., and the employee performs law enforcement functions on behalf of the Attorney General as an assistant attorney general, deputy attorney general or investigator. . . .; or

2. The employee is detached from his or 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 . . . .

On August 30, 2006, however, then-Attorney General Zulima Farber rendered an opinion advising that PERS could not "utilize the criteria devised by Attorney General Harvey and promulgated under N.J.A.C. 17:2-8.2." Attorney General Farber opined that only individuals actually assigned to DCJ or detached from DCJ but performing DCJ functions, would be eligible for the Prosecutors Part benefits, irrespective of PERS' interpretation of the statute as reflected in its adoption of the resolution.

On October 2, 2006, during the course of former Administrator O'Reilly's petition for pension benefits under the Prosecutors Part, the Board accepted the opinion of then-former Attorney General Farber, and determined that N.J.A.C. 17:2-8.2 was inconsistent with the requirements of N.J.S.A. 43:15A-155. Therefore, the Board directed that the regulation be rescinded.*fn1

The Board denied O'Reilly's request for a hearing before the OAL because it considered the material facts to be undisputed.

On June 9, 2008, we reversed and remanded O'Reilly's case for a hearing before the OAL, "to determine . . . whether petitioner detrimentally relied on the opinion of Attorney General Harvey; the then-existing regulation, N.J.A.C. 17:2-8.2; and the Board's [prior] approval of his eligibility for Prosecutors Part benefits in three different years . . . ." In Re O'Reilly, No. A-4275-06 (App. Div. June 9, 2008) (slip. op. at 18). In reversing, we nonetheless noted that we are convinced that the statute, as adopted by the Legislature, excludes petitioner and any other employee of the Attorney General's Office not employed under the titles stated in N.J.S.A. 43:15A-155. It is for the Legislature to amend the statute - retroactively or prospectively - if it chooses to do so. We cannot, however, dispose of petitioner's case on the basis of statutory interpretation alone. There were too many intervening elements - including the Board's adoption of an apparently valid regulation which remained in effect for several years and under which the Board determined petitioner's eligibility for the Prosecutors Part in three separate years.


We recognize that petitioner's case does not present the same kind of "intervening elements" that led to our remand in O'Reilly. Nonetheless, we conclude that a remand is necessary and appropriate, in order to allow petitioner to present her claims in a hearing before the OAL.

Those claims include petitioner's unrefuted assertion that her job responsibilities vis-à-vis the OSPA were identical when she was assigned to the Office of the Attorney General and when she was transferred to DCJ. Moreover, the record reflects that her prior experience as an assistant prosecutor was a significant factor in the Department's decision to hire her in 2002. Furthermore, it has been represented to us that "civilian" (i.e. non-prosecutorial) employees of DCJ are eligible for Prosecutors Part pension benefits notwithstanding that their job titles and responsibilities are wholly clerical or administrative in nature, and involve no direct prosecutorial duties.

We pass no judgment on the ultimate merits of petitioner's case before the OAL. We conclude only that, given the unique circumstances of her particular situation, she should not be deprived of an opportunity to make the fullest case possible to support her position before the OAL.

Reversed and remanded for proceedings in conformance with this opinion.

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