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In the Matter of Anthony Ambrose.

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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).

I

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, ...


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