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In the Matter of Barbara Thomas

January 21, 2011

IN THE MATTER OF BARBARA THOMAS, APPELLANT.


On appeal from a Final Determination of the Board of Trustees, Teachers' Pension and Annuity Fund.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010 - Decided Before Judges Wefing and Payne.

Barbara Thomas, a former teacher, appeals from a final decision of the Teachers' Pension and Annuity Fund (TPAF) denying her an ordinary disability pension on the ground that she lacked the requisite ten years of New Jersey service and declining to refer the matter to the Office of Administrative Law for a hearing. On appeal, Thomas concedes that a legal basis for the TPAF's action exists, but she argues that principles of equitable estoppel should have been applied so as to award her the disability pension, and that she was entitled to a hearing in the matter. We affirm.

In 2000, Thomas was hired by the Asbury Park school system. In 2002 and 2003, she purchased from the Division of Pension and Benefits ten years of service credit for out-of-state service. The purchase quotations sent to Thomas on September 19, 2002, October 23, 2002 and March 3, 2003 stated: "This service may not be used to qualify for Disability Retirement."

On September 1, 2003, Thomas accepted a position in Wall Township as a learning consultant. In 2007, Thomas became ill, receiving one month of paid sick leave from September 4, 2007 to October 1, 2007 and unpaid leave thereafter through June 20, 2008. She resigned from her employment, effective July 1, 2008.

On June 16, 2008, Thomas applied for an ordinary disability retirement pension, effective on July 1, 2008, claiming a total permanent disability as the result of a combination of medical conditions. The fact of her disability was attested to by her treating physicians, and it was confirmed by an examining physician retained by the TPAF in a letter dated February 6, 2009. Thomas did not personally contact the TPAF at the time of her application and received no advice from it.

On August 19, 2008, an employer's certification was submitted by Wall Township Public Schools, and on November 14, 2008, that entity confirmed that there was no position in the district that Thomas was able to fill, having been out of work for the entire 2007-2008 school year.

On March 5, 2009, Thomas's application for an ordinary disability pension was approved, but on March 17, 2009, before the payment of any benefits, that approval was rescinded on the ground of insufficient in-state service. The letter of rescission stated:

In order for a member to qualify for . . . ordinary disability benefits, they must have at least 10 or more years of New Jersey service credit in the pension system. A review of your account reveals that the 120 months of out-of-state time you purchased cannot be used to qualify for an ordinary disability retirement. I have enclosed copies of NJAC 17:3-5.5 and NJSA 18A:66-39(b), for your reference.

The letter noted that, at the time, Thomas had seven years and four months of New Jersey service credit. However, it concluded by stating: "With your age and service credit, you do qualify for Deferred retirement benefits, which would become effective July 1, 2012." An application for such benefits was enclosed.

On April 13, 2009, Thomas sought to rescind her resignation and to reinstate her employment "under some mutually agreed upon accommodations." Her request was not granted. On April 21, 2009, the Superintendent of Schools wrote that the district was not in a position to approve Thomas's request because of severe budgetary constraints. The letter noted that, as a consequence, the Board of Education had needed to eliminate twenty-three positions in the 2008-2009 budget year, and sixty positions in the following year in order to comply with the State-mandated four-percent tax cap.

On May 29, 2009, Thomas appealed the decision denying her an ordinary disability pension to the Board of the TPAF. However, her appeal was denied at the Board's meeting of July 2, 2009. Thomas's attorney was informed of that denial in a letter dated July 6, 2009 that addressed Thomas's ineligibility pursuant to statute and administrative regulation as the result of her lack of ten years of New Jersey service. Additionally, the Board denied Thomas's estoppel argument, determining that she had not relied on any Board action in determining to retire.

Thereafter, Thomas requested an administrative hearing. However, by letter dated September 4, 2009, that request was denied. A final administrative determination, dated October 2, 2009, was then issued. In that determination, the Board again rejected Thomas's estoppel argument, stating: "Clearly, Ms. Thomas did not rely upon any action of the Board and/or Division to her detriment." The Board also rejected Thomas's argument that, if the TPAF had acted more promptly, she would have been able to retract her resignation and to withdraw her pension application. In this regard, the Board stated: "[I]t is important to note that at its meeting of March 5, 2009, the TPAF Board determined that Ms. Thomas was totally and permanently incapacitated from the performance of ...


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