On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Docket No. 3-85159.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sabatino.
Daniel Coughlin, a former senior corrections officer, appeals a final decision of the Board of Trustees ("the Board") of the Police and Firemen's Retirement System ("PFRS"). In its decision, the Board required the total forfeiture of appellant's service credit time, thereby making him ineligible for a disability pension to which he otherwise would have been entitled, because of his off-duty conduct in providing a female acquaintance with a narcotic pain medication that had previously been prescribed to him. In imposing such total forfeiture, the Board rejected a contrary determination made by an administrative law judge ("ALJ") after the ALJ heard testimony from Coughlin and considered other proofs.
For the reasons detailed more fully in this opinion, we reverse the Board's decision, mainly because the Board misapplied N.J.S.A. 43:1-3(c)(8) in concluding, on the particular facts of this case, that appellant's off-duty conduct sufficiently related to his duties as a corrections officer to warrant the sanction of total forfeiture.
These are the pertinent facts as they were developed in the administrative proceedings. Many of these facts were agreed upon by the parties through a joint stipulation presented to the ALJ.
In March 1998, appellant was appointed as a corrections officer at the Adult Diagnostic and Treatment Center in Middlesex County. His duties involved maintaining order and safety within the institution. Appellant had no other public employment. He enrolled in the PFRS at the same time that his appointment as a corrections officer began.
According to his testimony before the ALJ, appellant has suffered from numerous medical problems, including sarcoidosis (a breathing disorder), lumbar disc disease, and arthritis in his hips. For these ailments, he was prescribed multiple medications, which included the painkiller Oxycontin, a controlled dangerous substance ("CDS").
As described by appellant, the Oxycontin was affecting his breathing and he was advised to discontinue taking the drug. However, because appellant had developed a dependency upon Oxycontin, his physician prescribed him Suboxone, a narcotic medication for the treatment of opioid dependence, in an effort to suppress appellant's withdrawal symptoms and to wean him off Oxycontin. The prescription for Suboxone was written on January 15, 2004.
The key event that led to the Board's total forfeiture of appellant's PFRS service time occurred on January 21, 2004, six days after appellant had been prescribed Suboxone and had stopped taking Oxycontin. On that date, a Rutherford police detective observed appellant passing Oxycontin to an adult female, Anna Siderias, in a store parking lot. The detective had been conducting surveillance at the parking lot based upon a tip the police received from a confidential informant. The detective observed appellant get out of his vehicle and get into Siderias's vehicle. According to the detective's police report, after appellant and Siderias conversed for about twenty minutes, the detective saw appellant open a prescription bottle and pour a green tablet out into his hand. Appellant then handed the tablet, which was later identified as Oxycontin, to Siderias. After Siderias bit the tablet, the detective saw appellant hand Siderias a second tablet, which also was later confirmed to be Oxycontin. Siderias then handed appellant thirty dollars in cash. At that point, the detective, with the assistance of other patrol units, arrested appellant. The officers confiscated from appellant's pockets, among other things, two prescription bottles containing Oxycontin and the money given to him by Siderias.
In his testimony before the ALJ, appellant attempted to explain his conduct in giving Siderias the Oxycontin in the parking lot. He contended that his judgment was clouded at the time he gave the pills to Siderias, who herself was addicted to Oxycontin. According to appellant's testimony, he first became acquainted with Siderias in or about October 2003. The following month, November 2003, Siderias, who had been given appellant's number by a mutual acquaintance, called him. She told appellant that she needed Oxycontin. As a result of her entreaty, appellant gave her "a couple" of his Oxycontin pills. Later that month, Siderias contacted him again. Appellant then met with her but did not provide her with any pills. He recalled loaning her $80 instead, hoping that she would leave him alone. A week or so later, in early December 2003, Siderias called appellant and told him she was ready to repay him. The two then met, and Siderias gave appellant a check for $80. According to appellant, he did not give her any pills, although she once again requested them. Several weeks later, after the check bounced, appellant called Siderias and confronted her. January 21, 2004, Siderias called appellant and the two of them made arrangements to meet in the parking lot, where appellant and Siderias were later arrested.
In assessing appellant's overall narrative of events and his asserted reasons for meeting Siderias in the parking lot, the ALJ specifically found that appellant "testified credibly that he just wanted his money back, as he was having his own financial difficulties." The ALJ found that "[w]hen [appellant] met with [Siderias] and observed the state she was in as she began to get sick in the car, he gave her a pill, which she bit into right away." The ALJ found that Siderias then "told [appellant] that all she had at the time was $30 of the $80 that she owed him, which he accepted."
In addition, the ALJ found that appellant "testified credibly that at the time [of the parking lot incident], he did not think he was doing anything wrong." That latter finding is consistent with appellant's post-arrest statement to the police, in which he indicated that he felt sorry for Siderias, that he knew how a person going through withdrawal feels, and that he was trying to help her cope with her own withdrawal symptoms by giving her the pills.
Appellant was issued a criminal summons for possession of CDS, namely Oxycontin, in violation of N.J.S.A. 2C:35-10a(1), and for illegally distributing that drug, in violation of N.J.S.A. 2C:35-5a(1) and -5b(5). Nine days later, on January 30, 2004, a preliminary notice of disciplinary action was issued by the Department of Personnel and appellant was suspended from his employment as a corrections officer. A final notice of disciplinary action ensued, in which appellant was suspended without pay, pending the adjudication of the criminal charges.
Appellant was subsequently indicted by the Bergen County Grand Jury on August 24, 2004, charging him with one count of third-degree distribution of Oxycontin, N.J.S.A. 2C:35-5a(1), -5b(5), one count of third-degree possession of Oxycontin with intent to distribute, N.J.S.A. 2C:34-5a(1), -5b(5).
Shortly after being indicted, appellant filed an application on October 14, 2004, with the PFRS for ordinary disability retirement benefits, seeking an effective date of November 1, 2004. His application referenced the medical conditions that we have already described. Upon receipt of the appellant's application, the Division of Pension and Benefits ("the Division"), which administers the PFRS, received information relating to the disciplinary and criminal charges then pending against appellant.
In March 2005, appellant pled guilty to one count of distributing Oxycontin, N.J.S.A. 2C:35-5a(1), -5b(5), and was admitted into the Pretrial Intervention Program ("PTI").*fn1 As part of the consent order, appellant was ordered to "irrevocably forfeit the position of corrections officer," and he was "forever disqualified from holding any public employment in the State of New Jersey."
With the criminal and disciplinary charges against appellant having been resolved, the Board then considered appellant's claim for disability retirement benefits. In a letter to appellant dated June 14, 2005, the Board noted that it was required to determine if his service was considered "honorable" for purposes of entitlement to retirement benefits from the PFRS pursuant to N.J.S.A. 43:1-3a.*fn2
As part of its initial review, the Board considered what it then understood to be appellant's "[four] years and [eleven] months of PFRS service" as a senior corrections officer, as well as his off-duty conduct that sparked the criminal and disciplinary actions. The Board told appellant in its denial letter that:
[Appellant's] misconduct demonstrates a high degree of moral turpitude as a sworn officer of the law. The Board determined that [his] conduct directly affected and was related to [his] public employment as a senior correction officer. Therefore, the Board determined that partial forfeiture of [his] service, specifically the service and salary obtained during the last 12 months of service was deemed dishonorable. Since [appellant's] reduced PFRS service credit falls below 4 ...