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Goldstein v. Board of Trustees

July 6, 2009

PAMELA S. GOLDSTEIN, APPELLANT,
v.
THE BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT.



On appeal from a Final Determination of the Board of Trustees, Teachers' Pension And Annuity Fund.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Parrillo and Messano.

Appellant, Pamela S. Goldstein, appeals from the final administrative determination of the Board of Trustees, Teachers' Pension and Annuity Fund (Board) denying her request to have her retirement date approved retroactive to October 1, 2005, the month after she turned sixty, from the approved effective date of September 1, 2007. We affirm.

Goldstein commenced employment as a teacher with the Livingston Board of Education (BOE) on October 1, 1986, and became enrolled in the Teachers' Pension and Annuity Fund (TPAF) on that same date. She terminated employment with the Livingston BOE on June 30, 1993, and no further contributions were made to her TPAF retirement account, which, at that time, reflected only six years and nine months of service credit. Goldstein never returned to active employment in New Jersey, but did continue to work as a teacher in New York where she had relocated. Because a member who leaves public service in New Jersey before age 60 is not entitled to a retirement benefit unless she has a minimum of ten years of service credit in the system, N.J.S.A. 18A:66-36, on November 1, 1993, Goldstein purchased six years of service credit from out-of-state service as a teacher in New York between July 1, 1966 and June 20, 1972. With this purchase, Goldstein's TPAF account became "vested," and, therefore, she was entitled to apply for a deferred retirement which would become payable upon reaching age 60. N.J.S.A. 18A:66-36.

In fact, prior to her purchase of additional service credit, on October 18, 1993, Goldstein inquired of the Division of Pensions (Division) client service office whether she could collect pensions from both New York and New Jersey. The next day, Division counseling staff responded by letter, informing Goldstein that if she retired and was working out of state, she was entitled to continue to receive a pension check, but cautioned that if she collected from New Jersey, she may not be eligible to join the New York system. The letter also informed Goldstein that if she remained in the New Jersey system long enough, she could become eligible to receive a pension at age 60 or prior to age 60 with 25 years of service.

Goldstein's next inquiry concerning her TPAF account was on October 10, 1999, when she sent an e-mail to the Office of the Governor requesting a "statement" of her TPAF account. This inquiry was referred to the Division, and, on October 19, 1999, the assistant director of client services, William Kale, responded by letter providing Goldstein a summary of her account and explaining that a "personal benefits statement" is only sent to contributing members of the public pension plans. Significant for present purposes, Kale also informed Goldstein that members with ten years or more of service could apply for a deferred retirement benefit:

Members who have terminated employment with ten or more years of service credit can file for a deferred retirement benefit. Benefits, calculated using the same formula as for a Service Retirement, are payable the first of the month following the month of the member's 60th birthday. The application must be filed prior to the effective retirement date. [emphasis added.]

Kale also enclosed a Retirement Application form, informed Goldstein that the application must be filed before the retirement date, noted that more information was available on the Division's internet site, and requested that she contact him if she had further questions.

Goldstein's next communication with the Division was not until August 21, 2006,*fn1 when she submitted, online, a Request for a Deferred Retirement Estimate with a proposed retirement date of October 1, 2006. In reply, on October 6, 2006, the Division issued an estimate based on a service retirement, N.J.S.A. 18A:66-43(a), because Goldstein was over age 60 and no longer eligible for a deferred retirement under N.J.S.A. 18A:66-36. However, despite her eligibility for a service retirement, Goldstein did not file a retirement application at that time, but, instead, waited about one year when, on August 6, 2007, she electronically filed an application for Retirement Allowance with a September 1, 2007 effective date, two years beyond her sixtieth birthday. On August 7, 2007, the Division acknowledged receipt of the application, and, in November, the Board approved the retirement effective September 1, 2007, as Goldstein requested.

Because she would have been eligible for retirement benefits sooner if she had applied for retirement earlier, on November 30, 2007, Goldstein appealed the effective date of her retirement requesting that the retirement be made effective retroactive to October 1, 2005, the month after which she turned age 60, claiming she was unaware that retirement benefits could commence at age 60. On December 7, 2007, the Chief of the Division's Retirement Bureau denied Goldstein's request for a retroactive retirement date and forwarded the appeal to the Board. After considering Goldstein's argument and reviewing the record, the Board denied Goldstein's request on February 7, 2008, determining that a retirement could not be made effective to October 1, 2005. Goldstein appealed the Board's determination and requested a hearing in the Office of Administrative Law (OAL). The Board again considered the matter on March 6, 2008, determined that there was no dispute of material fact and issued a final agency determination dated April 4, 2008.

In its final decision, the Board found that N.J.S.A. 18A:66-36 requires that, to obtain a deferred retirement benefit, the member must exercise the option at least 30 days before she attains normal retirement age of 60 and communicate the election to the retirement system, in writing, stating at what time subsequent to her eligibility she desires to be retired. Also, applicable regulations require that applications for retirement be made on forms required by TPAF and filed with the Division on or before the requested retirement date. N.J.A.C. 17:3-6.1(a); N.J.A.C. 17:3-6.3(c). Consequently, because Goldstein failed to apply for a retirement benefit before reaching age 60 and had not filed a retirement application until August 6, 2007, the earliest possible retirement date was September 1, 2007. As for Goldstein's claim of not knowing that she could begin receiving benefits at age 60, the Board found that Goldstein was advised by the Division on more than one occasion about her eligibility for deferred retirement at age 60. Finding no basis to permit a retroactive retirement date under these facts, the Board reaffirmed that Goldstein's retirement was effective September 1, 2007. Also finding no disputed facts, the Board denied her request for a hearing in the OAL. This appeal follows.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a ...


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