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Marzarella v. Board of Trustees of the Public Employees' Retirement System

April 29, 2010


On appeal from the Board of Trustees of the Public Employees' Retirement System.

Per curiam.


Argued April 14, 2010

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

Samuel Marzarella--an attorney at law of New Jersey since 1986--began his most recent employment as an assistant prosecutor with the Ocean County Prosecutors Office on March 25, 2002. He appeals from a final administrative decision of the Board of Trustees (Board) of the Public Employment Retirement System (PERS), which declined to recognize Marzarella's full prior public service*fn1 credit in the Prosecutors Part of the PERS. Finding neither an equitable basis nor any other principled foundation (such as a constitutional shortcoming) upon which to order a hearing or to overturn the Board's determination, we affirm.


On January 7, 2002, Chapter 366 of the Laws of 2001, codified at N.J.S.A. 43:15A-155 to -161, was approved and became effective immediately. The statute established, for the first time, a separate Prosecutors Part within the PERS with the intention of providing prosecutors enhanced pension benefits. The statute has been amended, effective May 21, 2010, closing the Part to any new participants and only continuing to provide those enrolled as of the effective date of the amendment with the higher pension benefits. See L. 2010, c. 1, § 30.

On June 21, 2004, pursuant to its authority in N.J.S.A. 43:15A-17, the Board promulgated regulations that governed the administration of the Prosecutors Part. See 36 N.J.R. 3068(a)(June 21, 2004). Those regulations disqualified Marzarella's claim for prior public service credits by declaring that: "[a] person who was not employed as a prosecutor on January 7, 2002 is not eligible to have any portion of his or her Public Employees' Retirement System account credited to the Prosecutors Part except as provided under the definition of 'service' in N.J.A.C. 17:2-8.1." N.J.A.C. 17:2-8.4 (emphasis added).

Pursuant to N.J.A.C. 17:2-8.1, the Board established that:

"[s]ervice" as a prosecutor as defined by N.J.S.A. 43:15A-155 shall include service as the following. For members employed as prosecutors on January 7, 2002, service shall also include any Public Employees' Retirement System service credited to a member's account on January 7, 2002.

1. A county prosecutor, first assistant prosecutor, or assistant prosecutor as defined in N.J.S.A. 2A:158-1 et seq. [(Emphasis added).]

Although Marzarella had been offered a full-time assistant prosecutor's position in the Ocean County Prosecutors Office as early as June 27, 2001, he was not administered the required oath*fn2 until March 25, 2002. Marzarella had immediately accepted this job offer in the summer of 2001, and ultimately phased out of his private law practice by July 3, 2001. A document entitled "Personnel Action Request Form (New Employee)," prepared by the Ocean County Prosecutors Office in relation to Marzarella's anticipated joining the office, did not initially reflect an effective date of his employment. Another "Personnel Action Request Form (New Employee)," dated August 29, 2001, contained a crossed-out effective date of October 15, 2001, with a handwritten notation changing that date to November 8, 2001. The form also cryptically indicated that the "[a]additional position was approved in 2001 budget per Nellie 9/4/01." A third "Personnel Action Request Form (New Employee)," dated January 28, 2002, indicated an effective date of March 25, 2002, which was finally fulfilled when Marzarella took the oath on that day and embarked upon his resumed prosecutorial duties.

From the foregoing, it is clear that the administration of the required oath to Marzarella and his commencement of the duties of an assistant prosecutor were delayed for several months. In fact, the record shows that several swearings-in were actually scheduled, but were adjourned for various reasons that are not readily apparent. It is also evident from the record that Marzarella was not actually an assistant prosecutor on the inception date of the newly-minted Prosecutors Part; he joined that part some seventy-seven days later, through no fault of his own.

After several failed informal attempts were made on Marzarella's behalf to implore the Board to add his prior public service credits to his Prosecutor's Part account, Marzarella decided to commence a tort action for damages in the Law Division against several public entities, including the Board, and the former Prosecutor of Ocean County who had initially offered the job. Marzarella and the Board ultimately agreed to a dismissal of all claims against it in the Law Division, with Marzarella still retaining the right "to pursue all administrative remedies available before the Board." In due course, the Law Division dismissed all of Marzarella's ...

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