May 29, 2009
IN THE MATTER OF THOMAS J. CARROLL.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 5, 2009
Before Judges Collester and Grall.
Thomas J. Carroll appeals from a final administrative determination of the Board of Trustees of the Public Employees' Retirement System. Substantially for the reasons stated by the Board in its written determination dated February 22, 2008, we affirm.
Carroll is as an Assistant Prosecutor in the office of the Hudson County Prosecutor. He was first hired in November 1985 and enrolled in the Public Employees' Retirement System (PERS) effective April 1, 1986. In October 1989, however, he resigned and withdrew his pension contributions. Approximately two years later, Carroll was rehired and returned to work as an Assistant Prosecutor in Hudson County. On January 1, 1992, he was again enrolled in PERS.
Effective January 7, 2002, Chapter 366 of the Laws of 2001, N.J.S.A. 43:15A-155 to -161, established a "Prosecutors Part" within PERS. Retirement benefits available to eligible members of the Prosecutors Part are more generous than benefits available to other members of PERS.
Carroll, who was still serving as an Assistant Prosecutor in Hudson County on the effective date, qualified for membership in the Prosecutors Part. In December 2002, Carroll applied to purchase service credit for the forty-eight months he had worked in the 1980s. The Division of Pensions gave Carroll a price, which he paid in April 2003. The Division acknowledged receipt of his payment and informed him that the service credits would be added to his PERS account, not his Prosecutors Part account. In response to Carroll's objection, the Division denied relief on the ground that "the law does not allow the purchase of prior service credit to be credited to the Prosecutors Part" of PERS. In October 2007, Carroll filed an administrative appeal with the Board seeking reversal of the Division's action or, in the alternative, refund of his payment. The Board denied both requests.
Carroll presents two issues on appeal:
I. N.J.A.C. 17:2-8.6 IS FACIALLY INVALID BECAUSE IT IS INCONSISTENT WITH N.J.S.A. 43:15A-156, THEREBY RENDERING THE BOARD'S FINAL ADMINISTRATIVE DETERMINATION AS ARBITRARY, UNREASONABLE AND ILLEGAL.
II. EVEN IF THIS COURT WERE TO REJECT THE FACIAL CHALLENGE TO N.J.A.C. 17:2-8.6, CARROLL MUST PREVAIL ON AN "AS APPLIED" CHALLENGE.
In pertinent part, N.J.S.A. 43:15A-156 provides:
a. . . . Any service credit which has been established in the Public Employees' Retirement System by a prosecutor prior to the effective date of this act shall be established in the Prosecutors Part without further assessment of cost to the prosecutor; provided, however, any service credit which has been established in the Public Employees' Retirement System by a member of the retirement system in any position prior to service as a county prosecutor, nominated and appointed pursuant to Article VII, Section II, paragraph 1 of the New Jersey Constitution, shall be established in the Prosecutors Part without further assessment of cost to the prosecutor.
b. All outstanding obligations, such as loans, purchases and other arrearage, shall be satisfied by a prosecutor as previously scheduled for payment to the Public Employees' Retirement System.
In pertinent part, N.J.A.C. 17:2-8.6 provides:
(a) Any active member of the Prosecutors Part may make an optional purchase of service as authorized by N.J.A.C. 17:2-5.5.
(b) Any purchase requested after January 7, 2002 shall be credited as regular PERS service in the calculation . . . .
The statute permits the Board to credit the account of a member of the Prosecutors Part with prior service that "ha[d] been established in [PERS] prior to" January 7, 2002. The regulation addresses the crediting of service purchased after January 7, 2002 and provides that service credits established after that date will be credited to PERS, not the Prosecutors Part. There is no inconsistency.
Carroll had a right to purchase credits for his forty-eight months of service in the 1980s when he returned to work in the prosecutor's office in the 1990s, but until he purchased those forty-eight months of service the time was not counted toward, or "established" as time counted toward, his retirement benefit. N.J.S.A. 43:15A-8b. Carroll's purchase was made after January 7, 2002, however, and will not count towards his years of service in the Prosecutors Part. N.J.S.A. 43:15A-156a. Carroll contends that because he rendered the forty-eight months of service at issue as an assistant prosecutor and has a statutory right to purchase that credit, the Board's regulation cannot be applied to him. He fails to recognize that he was permitted to purchase the credit for that service. It was added to his PERS account and will count towards his eligibility for medical benefits. N.J.S.A. 40A:10-23; N.J.A.C. 17:2-8.8. The argument lacks sufficient merit to warrant any additional discussion. R. 2:11-3(e)(1)(E).
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