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Tina M. Frost v. Board of Trustees of the Public Employees' Retirement System

June 14, 2012

TINA M. FROST, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 2-10-221407.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2012

Before Judges Carchman and Baxter.

Petitioner Tina M. Frost appeals from a final decision of the Board of Trustees (Board) of the New Jersey Public Employees' Retirement System (PERS), following a hearing,*fn1 denying a portion of petitioner's prior public service credit as eligible for enhanced pension benefits under the Prosecutors Part of PERS. The Board determined that petitioner became eligible for benefits under the Prosecutors Part on April 16, 2005, but that her prior PERS service did not qualify for enhanced pension credit. We affirm.

I.

These are the relevant facts. From 1988 to May 7, 2000, petitioner was employed as an Assistant Prosecutor in the Middlesex County Prosecutor's Office. Her PERS enrollment was effective February 1, 1988.

On May 8, 2000, petitioner left her position in the Prosecutor's Office, and began service in the New Jersey Department of Law and Public Safety (DOLPS), where she was assigned to the Office of State Police Affairs (OSPA). She assumed the title Deputy Attorney General (DAG).

During the period when petitioner was assigned to OSPA, the "Prosecutors Part" of PERS was established by N.J.S.A. 43:15A- 156a. The Prosecutors Part provides enhanced retirement benefits to public employees who meet the statutory definition of a "prosecutor," ibid., as defined by N.J.S.A. 43:15A-155.*fn2 See N.J.A.C. 17:2-8.4.*fn3 These benefits allow a member to contribute to the pension fund at a higher rate and elect a larger retirement allowance. If a PERS member is deemed to have been serving as a "prosecutor" on the effective date of January 7, 2002, all of his or her regular PERS credit is retroactively transferred to the Prosecutors Part, thereby, qualifying for the enhanced pension benefits. See N.J.A.C. 17:2-8.3 and 17:2-8.11.

On April 16, 2005, petitioner left her position with OSPA, and transferred to the Division of Criminal Justice (DCJ), where she retained the title DAG and performed essentially the same job functions that she had been assigned in OSPA. These duties included providing legal counsel and representation to the Division of State Police; training officers on issues of criminal law and procedure; researching criminal law issues; providing legal assistance to staff of the Attorney General and State Police Division headquarters; reviewing evidence and charges against individual officers and recommending dispositions; prosecuting State police officers in disciplinary matters; assisting the State Police recruiting committee; and representing OSPA on the search and seizure review board.

Shortly thereafter, petitioner wrote a letter to the Division of Pensions and Benefits (DPB), requesting enrollment in and credit under the Prosecutors Part. DPB advised petitioner that DPB had determined she was eligible to enroll in the Prosecutors Part as of April 16, 2005, which was the date she transferred to DCJ. DPB advised petitioner she was not eligible for enrollment at any earlier time period.

Petitioner appealed DPB's determination. Petitioner sought to have her prior PERS service credited under the Prosecutors Part, contending that she was eligible on the date the legislation establishing the Prosecutors Part took effect, January 7, 2002, including that period when petitioner was assigned to OSPA. Petitioner also requested that she be permitted to take an early retirement allowance effective June 2007.

The Board considered petitioner's application at its regular May 2007 meeting. Petitioner attended and submitted supporting documentation, but an evidentiary hearing was not held. Thereafter, the Board denied petitioner's request for credit under the Prosecutors Part prior to April 16, 2005, but approved her request for an early retirement allowance. On June 6, 2007, petitioner retired.

Petitioner challenged the Board's denial of credit under the Prosecutors Part, and requested that the Board grant her a hearing in the Office of Administrative Law (OAL). The Board denied petitioner's request, finding that no disputed issues of fact warranted a hearing.

Petitioner appealed the Board's denial of her request for a hearing. Frost v. Bd. of Trs., Pub. Employees' Ret. Sys., No. A-1156-07 (App. Div. Apr. 13, 2009). In an unpublished opinion filed April 13, 2009, we reversed and remanded the matter to the OAL. Id. at 10-11. We observed that N.J.S.A. 43:15A-155 defines the term "prosecutor" as:

(1) a county prosecutor, first assistant prosecutor or assistant prosecutor as defined in N.J.S. 2A:158-1 et seq.; (2) the Director of the Division of Criminal Justice in the Department of Law and Public Safety; (3) an assistant director, deputy director, assistant attorney general or deputy attorney general in that department and assigned to that division pursuant to . . . [N.J.S.A.] 52:17B-97 et seq.[]; or (4) a criminal investigator in the Division of Criminal Justice in the Department of Law and Public Safety who is not eligible for enrollment in the Police and Firemen's Retirement System. [Id. at 4-5 (quoting N.J.S.A. 43:15A-155) (alterations in original).]

We explained that:

Petitioner fits none of these statutory classifications for the period from May 8, 2000 to April 16, 2005, as she was neither a county prosecutor nor a DAG assigned to DCJ.

However, petitioner has asserted, and [the Board] has not disputed, that her job responsibilities for the OSPA remained unchanged during the entire term of ...


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