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Hill v. Board of Trustees of the Police and Firemen's Retirement System

October 23, 2009

DAVID A. HILL, APPELLANT,
v.
BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.



On appeal from the Board of Trustees of the Police and Firemen's Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Graves, Sabatino, and J.N. Harris.

Former police officer David A. Hill (Hill) applied for an ordinary, and then later an accidental, disability pension from the Police and Firemen's Retirement System (PFRS). The Board of Trustees of the PFRS (Board) decided that Hill was not entitled to collect any type of monthly PFRS benefits because Hill had previously engaged in insurance fraud. Deeming this misconduct serious, the Board held that Hill's entire PFRS service credit, from December 28, 1991 until June 30, 2000, was forfeited. This appeal followed.

Mindful of our constrained scope of appeal, Hemsey v. Bd. of Trustees, Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009), but sensitive that a complete forfeiture of earned pension rights is a drastic remedy that should be avoided unless clearly intended by the Legislature, Uricoli v. Police & Fire Ret. Sys., 91 N.J. 62, 70-73 (1982), we reverse and remand the decision of the Board.

I.

Hill served as a corrections officer and later on as a policeman from December 23, 1991 until June 10, 2000. Accordingly, he was a member of PFRS and entitled to its benefits and emoluments, including a pension, if he qualified. At the end of his public service career, he was employed by the City of Newark Police Department.

On October 20, 1996, Hill - along with another Newark police officer - was engaged in the apprehension of persons suspected of stealing a Jeep. Because of an alleged act of resisting arrest by one of the participants in the theft, Hill asserts that he suffered a fractured wrist. From this seemingly innocuous, albeit potentially disabling injury, Hill claims that he spiraled into several years of intermittent mental illness. Finding himself initially benched from active street duties because of physical limitations connected with the wrist injury, Hill professes that he grew more depressed and was unable to perform his job as police officer in the way that he formerly enjoyed. Hill claims that he eventually began to hear voices that were intrusive and distracting. He endured irrational fears, including the fear of the number 666,*fn1 which just happened to appear in the license plate - LK666V - of his leased 1993 Lexus SC400.

On February 16, 2000, Hill turned his Lexus over to an individual, Rashid, who was a neighborhood acquaintance. On February 17, 2000, Hill's vehicle was found on Governor Street in Newark, having been destroyed by fire. A report of the Newark Fire Department concluded that the cause of the fire was arson.

On February 18, 2000, Hill reported that his Lexus had been stolen and subsequently completed a Newark Fire Department Vehicle Investigation Report. Hill made an insurance claim for the severely damaged vehicle, which resulted in the insurance company paying the leasing company for the loss. Hill received no direct benefit from the insurance proceeds.

On June 8, 2000, Hill gave a voluntary statement to the Newark Police Department's Arson Squad. Hill stated that he gave the vehicle to Rashid to make it seem as if it had disappeared, because the car required costly repairs. Hill was not delinquent in his payments on the four-year lease of the car; the lease was scheduled to end on February 28, 2000.

In short order, Hill was served with a "Complaint Against Personnel" by Director Joseph Santiago, alleging that Hill had violated several police department rules and regulations. Hill was suspended without pay on June 10, 2000. Hill was separately subjected to additional disciplinary action where he was accused of an inability to perform his duties, based upon a fitness-for-duty psychological evaluation performed by Dr. Irving B. Guller of the Institute for Forensic Psychology. Hill's employment with the City of Newark was terminated, as reflected in its Final Notice of Disciplinary Action, effective on January 16, 2001, based upon Guller's work, not the pending misconduct charges relating to Hill's car.

One year later, on January 25, 2002, Hill appeared in the Criminal Part to respond to an accusation that was lodged against him by the Essex County Prosecutor. Although Hill was initially charged with third degree attempted theft by deception contrary to N.J.S.A. 2C:20-4(a), the terms of a plea bargain reduced the offense to a disorderly persons charge. The allocution that was acceptable to the assistant prosecutor and accepted by the court was the following:

Q: Sir, you're charged in one count of this accusation that on February 16th, 2000, you did attempt to commit a theft by deception.

A: Yes, Your Honor.

Q: What did you do?

MR. ROTELLA: (defense counsel): Should I inquire, Judge, ...


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