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Daniel Coughlin v. Board of Trustees

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 14, 2011

DANIEL COUGHLIN, APPELLANT,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Docket No. 3-85159.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 25, 2010

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.

I.

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 years, [he] no longer [has] the necessary time to qualify for Ordinary Disability retirement benefits. [(Emphasis added).]

Accordingly, the Board denied appellant's claim, without reaching the merits of whether he was actually disabled or otherwise entitled to benefits.

The parties have since stipulated that, at the time of its initial determination, the Board was under the mistaken impression that appellant only had four years and eleven months of service credit, and therefore a forfeiture of twelve months of that service would take appellant below the required four years of service time needed for eligibility for disability retirement benefits. See N.J.S.A. 43:16A-6(1) (providing that "any member, under 55 years of age, who has had four or more years of creditable service may be retired on an ordinary disability retirement allowance . . . .").

Appellant appealed the Board's initial determination and requested a hearing before an ALJ, which was granted. In early 2006, after the case was transferred to the Office of Administrative Law ("OAL"), but before the hearing, appellant attempted to purchase fourteen pay periods of leave of absence service, in order to bring himself above the four-year minimum. As a result, on September 11, 2006, the Board voted to postpone a decision on appellant's application, so as to allow for review of appellant's eligibility to purchase service credit time.

By letter dated February 13, 2007, the Board informed appellant that it had determined that "[appellant] was not entitled to purchase additional service credit because he was not a member of the PFRS at the time of the [attempted] purchase." In that same letter, the Board also acknowledged that the Chief of its Retirement Bureau had since informed the Board that appellant's service time was five years, not four years and eleven months as the Board had originally indicated. Thus, under the Board's initial decision imposing a partial forfeiture sanction of twelve months, appellant would have had the required minimum of four years service credit, even if he were not permitted to purchase any additional service credit.

Having been provided with "additional information," the Board next reconsidered whether appellant's service time was "honorable." This time, however, the Board decided to forfeit all of appellant's accrued service credit, rather than only twelve months of it. The Board stated:

The Board holds that the culpability of [appellant] under these circumstances is high because he distributed CDS to another person even though he was a law enforcement officer sworn and charged to uphold the laws of the State.

In consideration of the foregoing, the Board determined that a partial forfeiture from the date of the misconduct first occurred as measured from the date of the offense would permit him to apply for an Ordinary Disability retirement benefit and would not impose a forfeiture that adequately reflects the nature and extent of the misconduct here. Therefore, the Board determined that all of [appellant]'s service and salary should be forfeited in this case. [(Emphasis added) (footnote omitted).]

Prior to the OAL hearing, appellant completed the terms of his PTI. Consequently, the criminal charges against him were dismissed on April 1, 2008.

Appellant was the sole witness to testify at the ensuing OAL hearing. As we have already noted, the ALJ found that appellant "testified credibly that [at the time of the final meeting with Siderias] he just wanted his money back, as he was having his own financial difficulties." The ALJ also found that appellant "testified credibly that, at the time, he did not think he was doing anything wrong."

Having credited appellant's narrative in these respects, the ALJ concluded that "[t]he incident that led to his arrest did not touch his employment in any way." This finding squarely differed from the Board's position. The ALJ also found that the Board had failed to give weight to several circumstances: (1) that appellant had been under a physician's care at the time, (2) that appellant was seeking treatment for addiction, (3) that he admitted that his judgment had been clouded, and (4) that he had successfully completed PTI.

Assessing the facts as a whole, the ALJ concluded that a forfeiture of more than one year of appellant's service credit was not warranted. The ALJ likewise concluded that a total forfeiture of his pension was similarly unwarranted. The ALJ reasoned, in this respect, as follows:

I find that there is nothing in the record to suggest that any of [appellant's] employment prior to this period of time was anything other than honorable. I therefore conclude that the Board has not met its burden by a preponderance of the credible evidence, in that the credible evidence in the record does not support the Board's determination that petitioner had dishonorable service within the meaning of N.J.S.A. 43:1-3, and I therefore conclude that a total forfeiture of his pension is not warranted. [(Emphasis omitted).]

The ALJ further concluded that appellant should be permitted to purchase the fourteen weeks of service credit time as he had requested.

The Board rejected the ALJ's recommended disposition. In its written final agency decision, dated July 13, 2009, the Board stated that it generally accepted the ALJ's factual findings, but with two significant exceptions. First, the Board clarified that it had, on its own initiative, corrected its earlier misimpression about the length of appellant's actual service time, which, once corrected, made appellant presumptively eligible for an ordinary disability retirement. Second, the Board stated that "while adopting the ALJ's credibility findings with respect to [appellant's] testimony," it rejected "the ALJ's factual conclusions derived therefrom as arbitrary, capricious, and not supported by the substantial credible evidence in the record." In particular, the Board ruled that the ALJ had "arbitrarily ignored key admissions by [appellant]," noting in particular that "the ALJ's finding that [appellant] was not involved in criminal activity or misconduct [was] against the weight of the evidence."

The Board then analyzed the eleven factors codified in the applicable forfeiture statute governing retirement benefits, N.J.S.A. 43:1-3(c)(1) through (11). The Board especially focused upon factors seven ("the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated"), N.J.S.A. 43:1-3(c)(7), eight ("the relationship between the misconduct and the member's public duties"), N.J.S.A. 43:1-3(c)(8), and nine ("the quality of moral turpitude or the degree of guilt or culpability, including the member's motives and reasons, personal gain and similar considerations"), N.J.S.A. 43:1-3(c)(9). As to factor seven, the Board concluded as follows:

To have committed a drug offense is very grave for a senior corrections officer, a law enforcement officer who must be trustworthy to not bring contraband into the secure facility in which he or she is stationed, and who must likewise be trusted to enforce that inmates otherwise do not receive contraband. [Appellant]'s claim that he did not recognize the illegality of giving out CDS indicates an utter lack of appreciation for any gravity in his misconduct.

With respect to factor eight, the Board stated:

[Appellant] was off-duty when the criminal action occurred. Nonetheless, he was a sworn law enforcement officer and the conduct violated his oath of office. He engaged in the very criminal conduct he had sworn he would act to prevent and curtail. Moreover, in committing this offense and testifying that he did not think he was doing anything wrong while committing it, [appellant] could not be trusted to not bring contraband into the State's secure correctional facilities.

Moreover, as to factor nine, the Board concluded:

The degree of moral turpitude is found to be high. The police report indicates that the arresting police officer observed [appellant] accept $30 in exchange for the CDS, which indicates the motive was for personal gain.

These observations echoed similar concerns expressed in the Board's earlier denial letter dated June 14, 2005. Based on its own review of the statutory factors, the Board's final agency decision forfeited all of the appellant's service credit as dishonorable. The Board noted that it was within its discretion under N.J.A.C. 17:1-6.1 to render appellant ineligible for disability retirement. The Board also rejected the ALJ's decision to allow appellant to purchase the service credit because at the time of the attempted purchase he had been terminated from his employment and was therefore not then a PFRS member.

Appellant urges that we should reverse the Board's final agency decision for several reasons. His main theme, woven through several points in his brief, is that the Board misapplied the factors in N.J.S.A. 43:1-3 and, in essence, treated appellant's misconduct as a "strict liability" offense that, by virtue of his employment as a corrections officer, required the total forfeiture of his service time. Appellant maintains that the Board's decision was arbitrary and capricious, and that it inequitably held him to an "unreasonably high standard."

Appellant further contends that the Board gave inadequate deference to the ALJ's credibility and factual findings. He argues that the Board, in essence, acted in a result-oriented fashion by enhancing the forfeiture sanction in its final decision from a partial period of twelve months to total forfeiture, in order to assure that appellant could not collect a disability pension. He also makes other miscellaneous points that need not be detailed here since we agree with appellant's fundamental point: that the Board misapplied the statutory factors and, in particular, factor eight, concerning the alleged nexus between appellant's off-duty misconduct and his work as a corrections officer.

II.

We begin our analysis by reaffirming that, in general, the final decisions of state administrative agencies are entitled to considerable deference. An agency's application of statutes and regulations "'within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Wnuck, supra, 337 N.J. Super. at 56 (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). Nonetheless, we are not bound by the agency's opinions on matters of regulatory law. See Levine v. Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)); see also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

In addition, when an agency strays from the factual findings of an ALJ, we need not accord the agency the level of deference that we ordinarily recognize in reviewing final administrative decisions. See H.K. v. Dep't of Human Servs., 184 N.J. 367, 384 (2005); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988). This principle is applicable in the specific context of pension cases. See Cavalieri v. Bd. of Trs. of PERS, 368 N.J. Super. 527, 534 (App. Div. 2004) (noting that "[w]hen an ALJ has made factual findings by evaluating the credibility of lay witnesses, the Pension Board may no longer sift through the record anew to make its own decision").

The substantive legal standards applicable to this case are well-established. The receipt of a public pension or retirement benefits is "expressly conditioned upon the rendering of honorable service by a public officer or employee." N.J.S.A. 43:1-3a. The Board of Trustees of a state or local pension fund or retirement system is "authorized to order the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member's public service which renders the member's service or part thereof dishonorable[.]" N.J.S.A. 43:1-3b.

In evaluating a member's misconduct to determine whether it breaches the condition requiring that the member's service be "honorable" and whether total or partial forfeiture of the member's earned service credit is appropriate, the statute requires the following:

[T]he [Board] shall consider and balance the following factors in view of the goals to be achieved under the pension laws:

(1) the member's length of service;

(2) the basis for retirement;

(3) the extent to which the member's pension has vested;

(4) the duties of the particular member;

(5) the member's public employment history and record covered under the retirement system;

(6) any other public employment or service;

(7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated;

(8) the relationship between the misconduct and the member's public duties;

(9) the quality of moral turpitude or the degree of guilt or culpability, including the member's motives and reasons, personal gain and similar considerations;

(10) the availability and adequacy of other penal sanctions; and

(11) other personal circumstances relating to the member which bear upon the justness of forfeiture. [N.J.S.A. 43:1-3c.]

These eleven statutory factors codify the factors that the Supreme Court previously crafted for determining whether an employee's service was "honorable" under the statutes for purposes of receiving pension or retirement benefits. Uricoli v. Bd. of Trs. of PFRS, 91 N.J. 62, 77-78 (1982).

If the Board determines that only a partial forfeiture is warranted, the employee's pension or retirement benefits shall be calculated "as if the accrual of pension rights terminated as of the date the misconduct first occurred[.]" N.J.S.A. 43:1-3d. However, "if termination as of that date would[,] in light of the nature and extent of the misconduct[,] result in an excessive pension or retirement benefit or in an excessive forfeiture," the Board may instead adopt "a date reasonably calculated to impose a forfeiture that reflects the nature and extent of the misconduct and the years of honorable service[.]" Ibid. Thus, when a partial forfeiture based upon the time of the misconduct would result in minimal or no reduction in retirement benefits, as compared with "the nature and extent of the misconduct and the years of honorable service, the Board may, in its sole discretion, provide a more equitable relief." N.J.A.C. 17:1-6.1(c).

In Uricoli, supra, 91 N.J. at 65, the Court reversed the Board's total forfeiture of the pension benefits payable to a police chief who had engaged in a single instance of "ticket-fixing," improperly disposing of a careless-driving summons that had been issued to the son of a close friend. The police chief had over two decades of honorable service on the police force. Ibid. Although the Court recognized the patent wrongfulness of the police chief's conduct and "its direct and actual relationship to the performance of [the chief]'s public duties," it nevertheless held that the misconduct was insufficient to warrant the automatic forfeiture of all of his benefits. Id. at 78-79. Among other things, the Court noted the offsetting considerations of the chief's otherwise blemish-free years of service, the one-time nature of his misconduct, the absence of extensive or pervasive corruption, the lack of personal gain or venality, and the adequacy of alternative penal sanctions that had been imposed. Id. at 79.

In T.J.M. v. Bd. of Trs. of PFRS, 218 N.J. Super. 274 (App. Div. 1987), we applied the Uricoli factors in reversing the Board's denial of a disability retirement pension to a police officer who had been convicted of off-duty aggravated sexual assault upon his daughter. Despite the pernicious nature of the officer's behavior, we held that the Board erred in imposing a total forfeiture of benefits without giving sufficient attention to numerous mitigating factors. Id. at 283. Those mitigating factors included appellant's documented history of psychological disturbances, including being victimized himself in an incestuous relationship as a young man. Id. at 277. We also specifically noted that "[the officer's] sexual assaults against his daughter took place in his home while he was not on duty." Ibid. Focusing upon factor eight of the Uricoli test--the relationship between the misconduct and the employee's public duties--we held that factor eight "should not weigh in favor of forfeiture if the civil servant's misconduct is unrelated to his public employment unless a balancing of all factors compels the conclusion that nothing less than total forfeiture will satisfy the objectives to be achieved under the [p]ension [l]aws." Id. at 279. In that vein, we observed that "[a]ppellant's crime was uniquely personal and completely unrelated to his office," and that no "indication of office was involved in the crime's commission." Id. at 280. That being the case, we concluded that the Board's imposition of total forfeiture produced "an unjust and harsh result," particularly for his surviving family members. Id. at 281-82.

Similar reasoning was applied by the Supreme Court in two companion cases: Masse v. Bd. of Trs. of PERS, 87 N.J. 252 (1981), and Procaccino v. Bd. of Trs. of PERS, 87 N.J. 265 (1981). In Masse, the Court sustained this court's reversal of a final agency decision by the Board forfeiting appellant's entire public service time because of his off-duty misconduct in impairing the morals of a minor. Id. at 253. The Court noted in its analysis that "[i]f the range of conduct that disqualifies service [for pension purposes] is judicially broadened to encompass criminal conduct unrelated to that service, an additional penal sanction would be imposed on individuals solely because of their status as public employees." Id. at 263. The Court explained that "[s]uch a construction of creditable service would intrude into a sphere of the criminal justice system where the Legislature has fixed the limits of punishment and given the courts discretion, within certain guidelines, to determine sentences." Ibid.

At the same time, in Procaccino, supra, the Court reversed the PERS Board's determination that the misappropriation of funds by appellant in his capacity as a county constable required the forfeiture of his State pension from his years of service as a title examiner with the Department of Transportation. Even though Procaccino's offense was one of moral turpitude, it was nonetheless "unrelated to his employment by the State" and it did not "taint his work as a title examiner." Id. at 268.

More recently, in State v. Hupka, 203 N.J. 222, 239-40 (2010), the Court held, in the related context of forfeiture of and permanent disqualification from public office under N.J.S.A. 2C:51-2(a), that a sheriff's officer's off-duty criminal sexual conduct with a woman with whom he had a prior relationship did not provide a sufficient nexus between the performance of his law enforcement duties and the sexual crime to which he pled guilty. The court recognized that "there was no relationship between defendant's employment as a police officer, the trappings of that office, or his work-related connections, and the commission of the offense to which he pled guilty, or to his victim[.]" Hupka, supra, 203 N.J. at 239. Cf. In re Expungement Petition of D.H., 204 N.J. 7, 24-26 (2010) (noting, in the context of an expungement petition, that the conviction of a former detective in a county prosecutor's office for illegally using the office computer to perform a criminal background check for a local business executive sufficiently touched upon appellant's public employment to warrant the forfeiture of future public office).

Here, the record contains scant proof that appellant's misconduct in providing two Oxycontin pills to Siderias bore any direct relationship to his tenure as a corrections officer. The only work-related fact that appears in the record--a fact not relied upon in the Board's forfeiture analysis--is that he was introduced to Siderias through a co-worker. Appellant did not smuggle narcotics into a prison facility or turn a blind eye to the possession or distribution of CDS by inmates or visitors. He did not abuse his authority as a corrections official to obtain the Oxycontin, which had been prescribed to him by his physician for documented medical conditions. The fact that, as part of his terms of PTI, appellant agreed to forfeit future public employment does not necessarily or logically require that his past service as a public employee be forfeited entirely for purposes of pension eligibility.

To be sure, appellant's career as a public employee was not lengthy, and his performance as a corrections officer was not shown to be particularly laudatory. Even so, the connection between appellant's off-duty misconduct and his responsibilities at the prison is too attenuated to permit affirmance of the Board's finding of a nexus under factor eight and its ultimate conclusion that total forfeiture was warranted. In making these observations, we do not second-guess the importance of maintaining drug-free prisons. But that important general objective has little to do with the particular facts of this case. Nor do we minimize the illegality of appellant's distribution of CDS, an offense which was addressed through the criminal process and through his agreed-upon forfeiture of office. What is missing is a significant nexus between that wrongful conduct and appellant's workplace.

Our assessment of the nexus issue is not undermined by the principal case relied upon by the Board, Corvelli v. Bd. of Trs. of PFRS, 130 N.J. 539 (1992). In Corvelli, the Court upheld the Board's total forfeiture of pension benefits to a former police chief who committed official misconduct by various retaliatory acts directed against a subordinate officer. Id. at 542-43. The Court upheld the Board's determination that the officer's misconduct, which spanned more than two years, was directly related to his public duties and had violated the public trust. Id. at 544. No such prolonged, on-the-job wrongdoing is at issue here. The facts in Corvelli are markedly distinguishable.

In sum, the conscientious discharge of our responsibility as a reviewing court impels the conclusion that the Board erred in finding a significant nexus between appellant's off-duty misconduct and the retention of his accrued service time as a public employee. The Board placed too much emphasis on the general societal need to eradicate drugs from our prisons, rather than on the specific context here involving the transfer of two particular tablets to a private individual in a private car in a commercial parking lot, under what the ALJ found to be credibly-proven extenuating circumstances. At oral argument before us, the Attorney General acknowledged that the Board does not take an absolute or a "zero tolerance" approach to pension claims by corrections officers who commit off-duty drug offenses. The total forfeiture imposed by the Board was an excessive response to appellant's off-duty lapses of judgment without a significant nexus to his actual job duties. The Board's decision in this case, and its particular reliance on factor eight, is neither supported by substantial credible evidence in the record nor a fair application of the statutory criteria.

Our invalidation of the Board's sanction of total forfeiture makes it unnecessary to reach the other issues raised on appeal. Nor do we need address the hypothetical question of whether a partial forfeiture would or would not be an appropriate sanction in this case. The Board previously imposed such a partial remedy, but it ultimately rejected that option once it learned that appellant had more actual service time than it originally was led to believe. Given the unique procedural history of this matter, we see no reason to remand this matter again to the Board a third time to reconsider a lesser sanction that it has already repudiated.

We do concur with the Board on the relatively minor issue involving the appellant's desire to purchase service credits for fourteen additional pay periods after forfeiting public office pursuant to his PTI disposition. The Board correctly found, as a matter of law, that appellant could not purchase additional service credit because his attempted purchase was subsequent to his forfeiture of public employment. Only those "presently serving" public employees may purchase such credit. See N.J.S.A. 43:16A-3.2. Consequently, the Board's determination on this discrete issue is affirmed.

The Board's final agency decision is therefore affirmed in part and reversed in part. Appellant may now apply for a disability retirement, which the Board shall evaluate on its merits without any conditions of forfeiture.


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