On appeal from a Final Agency Action by the Director of the Division of Pensions and Benefits, New Jersey Department of the Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Chambers and Kestin.
Claimant, Sheldon Goldstein, appeals from a final decision of the Director of the Division of Pensions and Benefits (Division) that upheld an administrative ruling denying Goldstein's application to resume participation in the Alternate Benefit Program (ABP). We reverse.
None of the critical facts of the matter are in dispute. The factual background as presented by claimant was taken as the basis of the Director's decision.
Claimant is a physician and a recognized specialist in cardiac anesthesiology. He was employed by the University of Medicine and Dentistry of New Jersey--Robert Wood Johnson (UMDNJRWJ) from 1992 until 2004. During that period, he was a participant in the ABP, one of the pension programs available to State employees, described in the Division's five-page handbook for program members as "a defined contribution retirement program for eligible employees of the public institutions of higher education in New Jersey."
According to the handbook:
The program allows members to direct their own retirement accounts while offering portability of accumulated contribution balances. Vested members*fn1 are permitted to allocate and transfer employer and employee contributions to any one or a combination of authorized investment carriers. The variety of investment choices and distribution methods offered by the authorized carriers provide members flexibility in meeting their retirement goals.
Six "investment carriers" are designated to manage the accounts of ABP members. One of them is the Teachers Insurance and Annuity Association/College Retirement Equities Fund (TIAA/CREF), the entity selected by claimant during the twelve-year term. Claimant asserts:
[B]oth during his employment with [UMDNJRWJ] and thereafter, [TIAA/CREF] was the sole point of contact for the administration of his account. He had no dealings with the Division; in fact, every piece of correspondence related to his retirement account came from [TIAA/CREF].
Indeed, the ABP handbook instructs: "For additional information about the investment options available to ABP members, contact the Investment Carriers listed[.]"
Claimant was not employed at UMDNJ-RWJ from 2004 to 2007. Beginning in mid-2007, he made inquiries with TIAA/CREF about transferring funds to an investment manager of his choice, Merrill Lynch, which was not one of the "investment carriers" designated by the ABP. He asserts that never once, during an extended series of conversations with "no fewer than seven TIAA/CREF representatives[,]" was he told that such a transfer of funds would be considered a "retirement," barring him from future participation in the ABP. Several such transfers were effected in September and October, 2007.
Claimant further asserts that, around the same time, he was negotiating for a return to the UMDNJ faculty, and officially resumed employment with UMDNJ on December 24, 2007. In the process of arranging for this resumption of employee status, claimant conferred with a representative of one of the other ABP-approved "investment carriers," learning only then that the previous transfer could bar him from future ABP participation. He communicated with Merrill Lynch immediately, ordering that his recently ...