January 20, 2011
IN THE MATTER OF ANTHONY AMBROSE.
On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-10-33938.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2010
Before Judges Payne, Baxter and Koblitz.
Appellant Anthony Ambrose appeals from a December 15, 2009, final administrative determination denying his request to waive re-enrollment in the Police and Fireman's Retirement System (PFRS), requiring him to resume making monthly pension contributions and terminating the $6,685.58 monthly benefits he had been receiving since he retired on July 1, 2006, at the age of forty-seven.*fn1 Initially after retirement he appropriately collected his PFRS pension while working as Office of Emergency Management Coordinator and Undersheriff of Essex County. Neither position is covered by PFRS. He was appointed Chief of Investigators (Chief) for the Essex County Prosecutor in January 2008.
Appellant argues that the Board of Trustees of the PFRS (Board) acted in an arbitrary, capricious and unreasonable manner when it denied appellant's request to waive re-enrollment because: (1) his current position is not permanent; (2) the Board's decision is inconsistent with a prior Board decision allowing a retired Jersey City police officer to collect his pension while serving as Chief of the Jersey City Police Department (Police Chief); (3) he does not meet eligibility criteria for re-enrollment; and (4) his two-year break in service before his current appointment eliminates the need for him to re-enroll. After reviewing the record in light of the contentions advanced on appeal, we affirm.
After working for more than a year as Chief, the Division of Pension and Benefits (Division) required appellant to re-enroll in PFRS. Appellant notified the Division that he disagreed with its decision, making the same arguments he raises on appeal. Ultimately, the Board agreed with the Division, denying appellant's request to waive re-enrollment in PFRS, reasoning in a final administrative decision that because he retired from a PFRS-covered position as police director and was hired in a PFRS-covered position as Chief, he must participate in PFRS.
An appellate court will not upset the ultimate determination of an agency unless the agency's action is arbitrary or unreasonable, or it violates legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also H.K. v. Div. of Med. Assistance, 379 N.J. Super. 321, 327 (App. Div. 2005). On appeal, the role of the reviewing court is limited to three inquiries:
(1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [Ibid. (quoting Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)).]
Although not binding, the appellate court should give "great weight" and "ordinarily . . . defer" to an administrative agency's "interpretation of its own enabling statute and of its own regulations," unless the appellate court finds them "plainly unreasonable" or "contrary to statutory authorization." Pressler & Verniero, Current N.J. Court Rules, comment 3.4.1 on R. 2:10-2 (2011). The appellate court, however, is not bound by an agency's statutory interpretation as "the construction of law is a judicial, not an executive function." In re Eligibility of Certain Assistant Union Cnty. Prosecutors, 301 N.J. Super. 551, 561 (App. Div. 1997).
Appellant argues in Point I of his brief that he is not currently eligible to enroll in PFRS according to the Division's Administration Manual (Manual) which states, "[e]nrollment in PFRS is limited to full-time, permanent firefighters and police officers who hold an approved job title or whose position has been approved by the Board of Trustees of the Police and Firemen's Retirement System." Appellant argues that the Board improperly disregarded the temporary nature of his appointed and unclassified position as Chief in determining that he must re-enroll in PFRS pursuant to N.J.S.A. 43:16A-15.3. In support of his argument, appellant claims that because he serves at the pleasure of the Prosecutor and can be removed or demoted at any time without cause pursuant to N.J.S.A. 2A:157-10.1, his position is not that of a "permanent" PFRS-covered title, as defined by N.J.S.A. 43:16A-1(2)(a) and N.J.S.A. 52:17B-67. Appellant argues that he is not a "policeman" as defined in these statutes. He argues also that even if he does fit within statutory definitions of a "policeman," he would not be required to re-enroll because his appointment as Chief is at-will, unclassified and thus not a "permanent appointment." To decide the merits of appellant's argument we must review and interpret the pertinent statutes.
"The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). A court should "ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." Ibid.; see also Soto v. Scaringelli, 189 N.J. 558, 569 (2007). When reviewing two separate but related statutes, "the goal is to harmonize the statutes in light of their purposes." Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 79-80 (2006). Ultimately, a court's role when analyzing a statute is to give effect to the Legislature's intent as evidenced by the "language of [the] statute, the policy behind it, concepts of reasonableness and legislative history." Johnson Mach. Co. v. Manville Sales Corp., 248 N.J. Super. 285, 303-04 (App. Div. 1991) (citing Monmouth Cnty. v. Wissell, 68 N.J. 35 (1975)).
According to the Division's website, appellant's current title of "County Investigators, Chief," an unclassified civil service position, was deemed eligible for PFRS on July 20, 1998, and it is undisputed that his prior title as police director was PFRS-covered. Division of Pensions and Benefits, PFRS Eligible Titles as of March 2009, http://www.nj.gov/treasury/pensions/ epbam/pensions/enrollments/pfrstitle.htm (last visited January 11, 2011).
Consistent with the Board's interpretation, N.J.S.A. 43:16A-1(2)(a) provides two alternative definitions of "policeman." Pursuant to N.J.S.A. 43:16A-1(2)(a), the meaning of "policeman" when determining eligibility for PFRS is either:
[A] permanent, full-time employee of a law enforcement unit . . . whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State . . . . [or]
[A]n administrative or supervisory employee of a law enforcement unit or the State whose duties include general or direct supervision of employees engaged in investigation, apprehension or detention activities or training responsibly for these employees and a requirement for engagement in investigation, apprehension or detention activities if necessary, and who is authorized to carry a firearm while in the actual performance of his official duties and has police powers.
If appellant meets either statutory definition of "policeman," he is eligible for PFRS, Eligibility Criteria for Assistant Prosecutors, supra, 301 N.J. Super. at 554. N.J.S.A. 43:16A-15.3, which governs re-employment of a retiree, cancellation of benefits and re-enrollment in PFRS, provides:
If a former member of the retirement system who has been granted a retirement allowance for any cause other than disability, becomes employed again in a position which makes him eligible to be a member of the retirement system, his retirement allowance and the right to any death benefit as a result of his former membership, shall be canceled until he again retires.
Therefore, the provision in the Manual that appellant cites, which limits PFRS eligibility to full-time permanent policemen, does not make appellant ineligible for PFRS.
Moreover, N.J.S.A. 16A-1.2(b), governing enrollment, provides that:
A person employed in a position on or after the effective date of a determination by the board of trustees that the position is covered by the retirement system is required to enroll in the retirement system as a condition of employment, provided the person is otherwise eligible for membership by meeting the appointment, age and health requirements prescribed for all members.
Appellant meets the second definition of "policeman," under the definitional statute N.J.S.A. 43:16A-1(2)(a). Based on his appointment as Chief, appellant is eligible for PFRS, and is required to re-enroll based on N.J.S.A. 43:16A-1.2(b), the enrollment statute, and N.J.S.A. 43:16A-15.3, the re-employment statute.
Appellant argues in Point II of his brief that the Board's determination was arbitrary, capricious and unreasonable because the Board did not articulate why appellant's circumstances were different from those of the Police Chief, who also served at the pleasure of his employer, and who the Board allowed to waive re-enrollment in PFRS pursuant to the Faulkner Act. N.J.S.A. 40:69A-60.7. Appellant contends that even if his position is covered by PFRS, his circumstances require the Board to make an exception and allow him to continue to collect his retirement allowance from PFRS, just as the Police Chief did. Appellant argues that the distinctions drawn by the Board were invalid.
The Board found that the Police Chief's appointment by an elected rather than an appointed official put the Police Chief in a less secure position. The Board reasoned that appellant's appointment by an appointed prosecutor is not as likely to involve political considerations and is more likely to result in the selection of an individual who will remain in the position for a longer period of time.
Moreover, the Board's decision to make an exception in the Police Chief's situation does not require it to do the same for appellant even if he was in the same situation as the Police Chief. We voice no opinion with regard to the correctness of the Board's waiver of the Police Chief's re-enrollment. The Board is free to enforce a strict re-enrollment policy, especially in difficult financial times.
Appellant argues in Point III of his brief that his particular circumstances require the Board to make an exception to the requirement that he re-enroll in PFRS based on equitable grounds, claiming that he left gainful employment as an undersheriff based on a reasonable, good-faith belief that he would be able to continue collecting his PFRS benefits as Chief.
Appellant certified that his position "has historically been held by those individuals who have not been required to enroll in PFRS," yet he does not name the individuals nor provide any proof that these predecessors who did not re-enroll were eligible for re-enrollment. If they had not previously retired from a PFRS-covered position, were over the age of sixty-five and therefore ineligible to re-enroll, or were appointed before July 20, 1998, when Chief became a PFRS-covered title, they would not have been required to re-enroll.
"Equitable estoppel is rarely invoked against a government entity, although it will be applied in 'appropriate circumstances unless the application would prejudice essential governmental functions.'" Sellers v. Bd. of Trs., 399 N.J. Super. 51, 58 (App. Div. 2008) (quoting Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)) (internal quotation marks and citation omitted). "The essential elements of equitable estoppel are a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). Appellant's mistaken belief that he would not have to re-enroll in PFRS was contrary to the information published on the Division's website and not based on any communications from the Division or the Essex County Prosecutor.
Appellant presents case law where we applied principles of equitable estoppel to Board actions. First, appellant cites Sellers, supra, 399 N.J. Super. at 51, where we applied equitable principles and permitted a firefighter to enroll in PFRS despite being above the maximum age for initial enrollment, in part because he left a previous job to take this position and also because the principles of the age requirement would not be thwarted if Sellers were permitted to enroll in PFRS. The Board had also adopted the practice of waiving the age-requirement on a case-by-case basis based on changes in federal age discrimination law. Id. at 55. Moreover, Sellers' employer also relied on a good faith belief that Sellers would be permitted to enroll in PFRS. Id. at 57-58.
Appellant also cites Hemsey v. Board of Trustees, 198 N.J. 215, 217, 218 (2009), for the proposition that courts may apply principles of equitable estoppel for Board actions. The Court in Hemsey found that a retired firefighter's re-enrollment in PFRS was not mandatory "because there was insufficient credible evidence to conclude that he exercised administrative or supervisory duties over police officers or firefighters," in his post-retirement positions. 198 N.J. 215, 217-18 (2009). This is not the situation here, as appellant concedes that he performs supervisory and administrative duties as Chief.
Appellant also argues that the Board's determination was unreasonable based on our decision in Kossup v. Board of Trustees, 372 N.J. Super. 468 (App. Div. 2004), where we reversed the Board's decision requiring Kossup, a retired fire chief, to re-enroll in PFRS because he accepted a civilian fire director position after he reached the mandatory retirement age of sixty-five, so statutorily he was not required to re-enroll. Our decision in Kossup is not relevant here because appellant accepted his position as Chief when he was forty-nine years old.
Appellant's decision to ignore the plain wording of the Division's website and rely instead on the history of former Chiefs, who may have been in different statutory positions, was not reasonable. If he relied on the unreleased decision in the Police Chief's case, such reliance was also misplaced because that matter involved somewhat different circumstances and does not represent binding authority. Appellant certified that if he is required to re-enroll in PFRS, he "will be forced to resign" from his position as Chief. Such a decision is understandable. He had sufficient information prior to accepting the job, however, to understand the risk he ran of not being permitted to receive a $80,226.96 PFRS pension while performing a high-level management job covered by PFRS.
The Board members have a fiduciary responsibility to all PFRS members and must act in the best interest of the pension system, not an individual applicant. Mount v. Trs. of the Pub. Employees' Ret. Sys., 133 N.J. Super. 72, 86 (App. Div. 1975). The Board may legitimately consider concerns regarding the availability of pension funds for its members when making a determination about waiving a re-enrollment requirement.
Finally, appellant argues in Point IV of his brief that the Board erred in not applying N.J.S.A. 43:16A-3.1, which he claims makes him ineligible for PFRS because he retired as police director more than six months before being appointed as Chief. N.J.S.A. 43:16A-3.1, however, does not pertain to appellant's situation because it is applicable when the individual's post-retirement position is not a PFRS-covered title, but where the individual has supervisory or administrative duties over PFRS-covered employees. Appellant's current position as Chief is covered by PFRS, and thus the fact that he was appointed more than six months after his retirement is irrelevant.
Appellant's re-enrollment is governed by N.J.S.A. 43:16A-15.3, which requires re-enrollment when a retired PFRS member becomes employed in another PFRS position, because both his former position as a police director and current position as Chief are covered by PFRS. The Board did not act in an arbitrary, unreasonable or capricious manner in requiring appellant to re-enroll in PFRS.