On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 08-06-0115.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
The opinion of the court was delivered by GRALL, J.A.D.
Defendant Michael Steele pled guilty to two counts of a nine-count indictment alleging crimes committed between January 29, 2003 and December 27, 2007 - second-degree official misconduct, N.J.S.A. 2C:30-2; and second-degree pattern of official misconduct, N.J.S.A. 2C:30-7. In return for defendant's plea, the State agreed to recommend two concurrent seven-year terms of incarceration with five years to be served without possibility of parole as required by N.J.S.A. 2C:43-6.5a. The agreement also recognized that the State would seek forfeiture of office, a bar against future public employment, pension forfeiture, a ten-year bar on public contracts and restitution not to exceed $120,000 to be determined after giving consideration to the pension forfeitures. The trial judge accepted the recommendation regarding incarceration and also imposed a $100 VCCB assessment, a $150 SNSF assessment, a $30 LEOTEF penalty and a $120,000 restitution obligation. He also required defendant to forfeit his public office, his right to seek public employment at any time in the future and his right to do business with a public entity in this State for ten years. N.J.S.A. 2C:51-2. Finally, pursuant to N.J.S.A. 43:1-3.1, the judge forfeited defendant's pension benefits earned from January 29, 2003 forward without prejudice to the pension board imposing a greater forfeiture.
The State appeals contending that the judge misapplied the law governing forfeiture of pension benefits. See State v. Kennedy, ___ N.J. Super. ___ (App. Div. 2011) (slip op. at 3-5) (discussing the State's right to appeal improper application of the statute mandating forfeiture of public office). Defendant cross-appeals and challenges the parole-ineligibility term, the restitution award, and the provision of the judgment permitting the pension board to forfeit a greater portion of his pension than that forfeited by the judge.
The facts pertinent to this appeal are as follows. At the time of defendant's misconduct, he was employed as the business administrator for the City of Irvington Board of Education. In that position, he profited from two schemes involving public contracts. The first scheme involved a contractor who paid defendant to disclose publicly bid construction contracts and subsequently recommend that the Board award those contracts to that contractor. Defendant estimated that over the years the contractor had paid him about $25,000 for his role in that scheme. The second scheme involved fraudulent purchase orders. The contractor and an associate or friend of his would submit quotes on projects not subject to public bidding; the contractor's quote would be the lower of the two and defendant would, on that basis, award the contract to the contractor.
Defendant again received kickbacks from the contractor amounting to about $25,000.
Relevant to defendant's pension, he had twenty-eight years and eight months of service credited to the Teacher Pension and Annuity Fund (TPAF) through May 1, 2008. That total includes twelve years and seven months service credit he earned as a member of the Public Employee Retirement System (PERS) from October 1, 1978 to May 1, 1991 and transferred to TPAF pursuant to N.J.S.A. 18A:66-15.1. His service as a member of TPAF from May 1, 1991 to May 1, 2008 was credited to TPAF directly. That credit amounted to sixteen years and one month, less an inactive period of eleven months.*fn1
Although it is not entirely clear on this record, it appears that defendant was serving as business administrator for the Board when he earned the sixteen years and one month of direct credit in TPAF. The presentence report indicates that defendant obtained a masters degree ...