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Frost v. Board of Trustees

April 13, 2009

TINA M. FROST, APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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