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Thomas E. Ciccarone v. Board of Trustees

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 27, 2012

THOMAS E. CICCARONE, APPELLANT,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, Agency Docket No. PERS #734737.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 17, 2012

Before Judges Payne and Simonelli.

Appellant Thomas Ciccarone, a member of the Public Employees' Retirement System (PERS),*fn1 sought to ascertain whether he could retire from his position as the Township Administrator of Chatham Township (Township), and be re-appointed to the position, which is now covered by the Defined Contribution Retirement Program (DCRP), N.J.S.A. 43:15C-1 to -15, after a thirty-day break in service, thereby enabling him to collect both his pension and a salary. Appellant appeals from the November 12, 2010, and January 25, 2011 actions of respondent Board of Trustees, Public Employees' Retirement System (Board), which he claims are final agency decisions appealable as of right to this court.*fn2 Because we conclude that appellant was seeking an advisory opinion, which the Board is not required to give, and the Board did not render a final agency decision, we dismiss this appeal.

In 2007, the New Jersey Legislature passed legislation, which provided that certain public employees in appointed positions, including a Township Administrator, who commenced service on or after July 1, 2007, shall be eligible for and participate only in the DCRP, not in PERS. N.J.S.A. 43:15C-2a(3). Ineligible from participation in the DCRP are appointed public employees, such as appellant, who were eligible for or enrolled as members of another pension fund or retirement system, such as PERS, so long as they maintained continuous membership. N.J.S.A. 43:15C-2b(2); N.J.A.C. 17:2-2.3(a)(13).*fn3

Those DCRP-ineligible individuals who were PERS members on July 1, 2007, and continuously thereafter, remained in PERS. N.J.S.A. 43:15A-7b.

Consistent with the new legislation, in June 2008, the Township adopted an ordinance requiring certain appointed municipal employees, including the Township Administrator, to participate in the DCRP. Although the Township Administrator position became a DCRP position, the ordinance provided that any present PERS member who was appointed to that position remained enrolled in PERS. Thus, appellant continued in the position as a PERS member.

In May 2010, appellant submitted an application to purchase service credit in order to have twenty-five years in PERS and qualify for early retirement. In addition, on May 13, 2010, appellant submitted an alleged cost-saving proposal to the Township whereby he would retire from his position as Township Administrator, begin collecting his PERS pension benefits,*fn4 and then be re-appointed as Township Administrator at a reduced salary after a thirty-day break in service (the proposal).*fn5 On May 25, 2010, appellant submitted an application for retirement allowance to the Division, with an August 1, 2010 proposed retirement date.*fn6 The Township drafted a resolution on August 19, 2010, and a memorandum of understanding on September 1, 2010, both of which incorporated the proposal.*fn7

On October 5, 2010, the Division determined that the proposal would not constitute a bona fide retirement and would not be valid. The Division cautioned that if appellant followed through with the proposal, he would be required to refund to PERS any benefits he received, and the Township would be required to remit pension contributions on his behalf as an active PERS member for any period he resumed employment with the Township after his retirement date. Appellant appealed to the Board.

On November 12, 2010, the Board approved appellant's retirement, effective December 1, 2010. The Board concluded it had no authority to render a final decision on the proposal because appellant had not yet retired and commenced re-employment, and there was no pension violation. However, for appellant's guidance, the Board "presented a finding" that if he re-commenced employment under the proposal, his "retirement could not be considered bona fide and the matter of [his] retirement would be returned to the Board for a final determination." The Board also explained that appellant was required to continue as a PERS member even if he was appointed to a DCRP position because the DCRP excludes individuals, such as appellant, who were PERS members prior to July 1, 2007 and continued their PERS membership.

Appellant moved for reconsideration of the Board's action. He also presented a new factual scenario for the Board's consideration -- he would terminate his employment as Township Administrator without any pre-arranged agreement to return to the position, and seek to obtain public employment in a DCRP position after a thirty-day break in service either in the Township or with another New Jersey public employer. He asked the Board to confirm whether this new factual scenario would also be considered a non-bona fide retirement.

On January 25, 2011, the Board re-affirmed its prior advice regarding the proposal. As for the new factual scenario, the Board confirmed its previous determination that it was not compelled to offer an advisory opinion "[a]s there has not yet been a violation." The Board also concluded that appellant's request for an appeal did not apply because the Board had not rendered a final decision. This appeal followed.

On appeal, appellant contends, in part, that the Board's January 25, 2011 action was a final decision appealable as of right to this court. We disagree.

Our review of an administrative agency's decision is limited. Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980). A strong presumption of reasonableness attaches to an agency decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). Thus, we will not reverse an agency's decision unless it was "'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In determining whether an agency decision is arbitrary, capricious or unreasonable, we must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid. (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]

The burden of proving that an agency decision is arbitrary, capricious, or unreasonable is on the challenger. Bueno v. Bd. of Trs. of the Teachers' Pension and Annuity Fund, 422 N.J. Super. 227, 234 (App. Div. 2011) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)). Applying these standards, we discern no reason to disturb the Board's decision not to render an advisory opinion.

Appellant initially sought to ascertain whether he could pre-arrange to retire from his Township Administrator position, collect his PERS pension, and then be re-appointed to that position after a thirty-day break in service. He later also sought to ascertain whether he could terminate his employment with the Township without any pre-arranged agreement to return as Township Administrator, and obtain public employment in a DCRP position after a thirty-day break in service either in the Township or with another New Jersey public employer. We are satisfied that these inquiries clearly sought the Board's advisory opinion on purely hypothetical factual scenarios, which the Board is not required to render.

We are also satisfied that the Board's "finding" that appellant's retirement could not be considered bona fide was not a final decision. The Board was merely providing guidance to appellant on what could happen if he re-commenced employment post-retirement. The Board could not, and did not, issue a final decision on appellant's ability to return to employment post-retirement. Accordingly, there is no final agency decision from which appellant can appeal.

Appeal dismissed.


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