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


June 14, 2012


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

Per curiam.


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.


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 her employment with [DOLPS]. [Id. at 5.]

While expressly declining to pass judgment on the merits of petitioner's case before the OAL, we concluded that, "given the unique circumstances of [petitioner's] particular situation, she should not be deprived of an opportunity to make the fullest case possible to support her position before the OAL." Id. at

10. Noting the "circumstances" that warranted a hearing, we observed that petitioner's claims included: an "unrefuted assertion" that her job responsibilities in OSPA and DCJ were identical; the fact that her prior experience as an Assistant Prosecutor was a significant factor in the 2002 DOLPS hiring decision; and the fact that even a "civilian" without prosecutorial duties whose responsibilities are wholly clerical or administrative can be eligible for enhanced benefits under the Prosecutors Part. Ibid.*fn4

At the subsequent hearing in the OAL, petitioner informed the Administrative Law Judge (ALJ) that she first became aware of attempts by prosecutors to obtain enhanced pension benefits under the Police and Fire Retirement System (PFRS) during the mid-1990s, while she was employed at the Middlesex County Prosecutors Office. Their attempt to obtain benefits under PFRS was unsuccessful. See In re Eligibility of Certain Asst. Union Cnty. Prosecutors to Transfer to PFRS Under N.J.S.A. 43:16A-1 et seq., 301 N.J. Super. 551, 562 (App. Div. 1997).

According to petitioner, when a team was assembled to establish OSPA, which was a newly created part of the Office of the Attorney General, there was a "specific[]" intent to include a New Jersey prosecutor. Petitioner claims that she was informed by the director of OSPA that she was "hired specifically" for that reason and that her "presence there was critical, because [she] had worked with the New Jersey State Police, and . . . knew the criminal law of New Jersey." Petitioner explained that, during her discussions with the director concerning OSPA, she was aware of continued attempts by prosecutors who sought "to approach the possibility of gaining [enhanced] benefit[s]" through "another avenue." She stated that she was "obviously concerned that if [she] were to leave [the] Middlesex County [Prosecutor's Office] . . . , what impact it would have on [her ability] to move to the Attorney General's Office." She noted that the director advised her it was a "virtual certainty" that she would be included in any Prosecutors Part that was established, which, by then, there had been "some ideas" concerning the possibility of proposed legislation. The director told her: "You will be a prosecutor. In fact, that's the reason I'm hiring you, because I need a prosecutor." However, as noted by the OAL during the hearing, at the time petitioner transferred to OSPA in May 2000, "the legislation had not actually been introduced." The bill "came out of nowhere . . . all of a sudden in mid December of 2000." Petitioner maintained that, "being part of the entity," she possessed "inside information."

Petitioner also indicated that, upon joining OSPA, a co-worker, who was already employed with DCJ when OSPA was established, had been assigned to OSPA (while still a DCJ employee) and enlisted to assist in writing the OSPA training curriculum. Petitioner stated that the co-worker advised her that he was still considered part of DCJ even though he was performing job duties in OSPA. Petitioner testified that she and her co-worker were assigned the same job duties and functioned "interchangeably." Petitioner also stated that her supervisor, who later served in a dual capacity as the director of both OSPA and the Office of Government Integrity (OGI), informed her that if OGI personnel received Prosecutors Part benefits, then so would OSPA personnel, and that she "had nothing to worry about."

Petitioner explained that, after the legislation creating the Prosecutors Part was enacted, then-Attorney General Peter Harvey "sent out a memo asking people to sort of justify their connection to law enforcement," and "that was the first time it occurred to [her] that someone thought [she] wasn't a prosecutor." Petitioner stated that when she was advised by Attorney General Harvey that, "You're not getting in," her "entire focus . . . was to try to show that that was wrong and to then bring [her]self within the prosecutor's part pension, even though people kept saying, 'It's too late, you can't do it[.]'"

On several occasions during her employment in OSPA, she requested that Attorney General Harvey transfer her to DCJ, but was informed that no "open slots"*fn5 were available. Petitioner explained that her "identity was wrapped up in being a prosecutor," and that her children, "when they want to get [her] attention, call [her] 'Prosecutor Frost,' . . . [s]o [she] was stunned that [someone] could come in and just decide" that her pension status was otherwise.

When petitioner finally transferred to DCJ in April 2005, her duties were unchanged from those at OSPA. Among various job responsibilities, petitioner continued to prosecute State Police disciplinary matters but admitted that when a trooper's alleged misdeeds appeared to warrant presentation to a Grand Jury, the matter would be referred to DCJ.

In an initial decision dated April 27, 2011, the ALJ concluded that petitioner was not eligible to enroll in the Prosecutors Part or receive additional credit during the time period from May 8, 2000 to April 8, 2005, while she was assigned to OSPA. In relevant part, the ALJ explained:

[Petitioner] was not assigned to the DCJ until April 16, 2005. Thus, she cannot qualify for membership prior to that date based upon her work for OSPA, as she was not "assigned to" the DCJ. Her assignment to OSPA was not one involving her being reassigned to OSPA after her having already been assigned to DCJ. And unlike petitioners in the Allen cases,[*fn6 ] there is no evidence here that [petitioner's] functions while assigned to OSPA were such that she could not perform them unless cloaked with the prosecutorial authority that the Criminal Justice Act gave exclusively to the DCJ and the deputies assigned thereto. . . . While it is quite likely that those [persons] involved in the creation of OSPA wanted someone with prosecutorial experience and the fund of knowledge acquired therein to fulfill the role ultimately assigned to [petitioner], the fact that the person had a prosecutorial background and that such was a characteristic highly valued for the position did not convert the position itself into one that involved the exercise of prosecutorial authority. . . . Therefore, [petitioner] not only cannot qualify for Prosecutor's Part membership prior to April 2005 because she was not assigned to DCJ, but also because she did not exercise prosecutorial authority pursuant to the Criminal Justice Act; she did not "handle criminal work that could only be performed by employees assigned to DCJ." [(citing Allen, Faust & Epstein v. Bd. of Trs., Pub. Employees' Ret. Sys., TYP 6665-07, initial decision, (Mar. 3, 2009), modified, final decision, (May 27, 2009), ).]

On May 19, 2011, the Board issued a final decision adopting the ALJ's initial decision in its entirety. This appeal followed.

On appeal, petitioner urges that the "current regulatory structure governing eligibility for benefits under the prosecutors part is impermissibly narrow and contrary to . . . public policy." In addition, petitioner asserts that the regulations were improperly applied to her, she relied on representations regarding the application of the Prosecutors Part to her, and consideration of her actual duties compels a finding that she was entitled to Prosecutors Part benefits.


In considering petitioner's various challenges, we first set forth our standard of review. "On judicial review of an administrative agency determination, courts have but a limited role to perform." Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 189 (1980). An administrative agency's determination is presumptively correct and, on review of the facts, we will not substitute our own judgment for that of an agency where the agency's findings are supported by sufficient credible evidence. Ibid. See also Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). Further, "'[i]f the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

Only where an agency's decision is arbitrary, capricious or unreasonable, or unsupported by sufficient credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Atkinson, supra, 37 N.J. at 149. The party challenging the validity of the administrative decision bears the burden of showing that it is arbitrary, capricious or unreasonable. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).

Finally, the Board is vested with the "the general responsibility for the proper operation of the retirement system[.]" N.J.S.A. 43:16A-13a(1). It is well settled that the regulations adopted by an administrative agency are "accorded a presumption of validity." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999). The burden rests on the challenger to overcome the presumption. Ibid. "A regulation 'may be set aside only if it is proved to be arbitrary or capricious or if it plainly transgresses the statute it purports to effectuate, or if it alters the terms of the statute or frustrates the policy embodied in it.'" N.J. Educ. Ass'n v. Bd. of Trs., Pub. Employees' Ret. Sys., 327 N.J. Super. 405, 410 (2000) (citation omitted).


We first address petitioner's "facial challenge" to the statutory scheme establishing the Prosecutors Part. Petitioner's argument is threefold. First, the statutory scheme governing eligibility to the Prosecutors Part should not be accorded a presumption of validity because it "does not involve technical matters related to the Board's expertise," and "turns entirely" on "ambiguous provisions of the enabling statute." She claims that prior requests in which the Board sought guidance from the Attorneys General concerning the scope of the eligibility provisions are, effectively, admissions that: (1) the provisions are ambiguous; and (2) their interpretation lies beyond the Board's expertise. Second, the statutory scheme "impermissibly restrict[s] the latitude and discretion of the Attorney General to ensure that employees' duties are accurately described and characterized so that employees are not unfairly rewarded or penalized based on an inaccurate or outdated description . . . of the duties they perform," and the "current structure does not permit the Attorney General . . . to make changes to such designations based on his determination that they are inaccurate or outdated," thereby, impermissibly restricting the inherent authority of the Attorney General. Third, the statutory scheme is invalid because individuals whom the Legislature intended to benefit are excluded from "the eligible group because the regulations do not allow consideration of any factors beyond an individual's position and organizational designation as of January 7, 2002."

Here, petitioner argues that the Attorney General should retain decision-making authority concerning eligibility to the Prosecutors Part. Petitioner's argument is misplaced, as the Board is responsible for "proper operation of the retirement system[.]" N.J.S.A. 43:16A-13a(1). The Board is the proper party to administer and interpret the eligibility provisions concerning the Prosecutors Part, and substantial deference will be accorded to its determinations. See Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-24 (2009). In view of this responsibility, it is directly within the Board's expertise to administer and interpret the provisions concerning the Prosecutors Part, which is a subset of the larger PERS pension scheme.

Petitioner's argument incorrectly conflates the role of the Attorney General and the PERS Board. While the Attorney General is experienced in the job functions and duties of a prosecutor, it is the Board that is experienced in and responsible for administering the pension fund to which petitioner seeks admittance. The Board is charged with and retains inherent authority over administration of the fund, and is charged with decision-making authority when pension disputes arise. N.J.S.A. 43:16A-13a(1).

Because the Prosecutors Part is part of the comprehensive PERS structure, and because eligibility decisions concerning PERS are directly within the responsibilities and experience of the Board, which must ensure proper operation of the pension fund as a whole, the Board's decision is accorded a presumption of validity. N.J. State League of Municipalities, supra, 158 N.J. at 222. In view of this presumption, petitioner has failed to show the legislative scheme governing eligibility to the Prosecutors Part should be set aside because it is "'arbitrary or capricious'" or "'frustrates the policy embodied in it.'"

N.J. Educ. Ass'n, supra, 327 N.J. Super. at 410 (citation omitted).

The statutory scheme is reasonable and consistent with public policy. As the ALJ explained:

[t]he creation of the Prosecutors Part reflected a determination of the Legislature that certain attorneys and investigators who engaged in the enforcement and prosecution of the criminal laws of the state should receive an enhancement in their pensions over those attorneys who otherwise were qualified for PERS benefits and had similar years of service in the pension system but did not work in the prosecution and enforcement of the criminal laws. On the county level, those deemed worthy were for the most part assistant prosecutors. On the state level, the Legislature made the conscious decision that those deputy attorneys general prosecuting and enforcing the criminal laws should be included in the Part. [(quoting Allen, Faust & Epstein, supra).]

While petitioner may disagree with the legislative policy determination in establishing the Prosecutors Part and choosing to provide enhanced benefits to only those "deputy attorneys general [charged with] prosecuting and enforcing the criminal laws," that distinction was neither arbitrary nor capricious, but based upon careful line-drawing.

Even though petitioner had certain prosecutorial responsibilities in her position at OSPA, during the hearing before ALJ, she admitted that, while assigned to OSPA, she was not responsible for prosecuting or enforcing criminal laws, as such matters would be referred to those assigned to DCJ. This is a critical distinction. While petitioner may have identified with the prosecutorial duties she retained at OSPA, those duties were not of the kind to qualify her as eligible for the Prosecutors Part. Petitioner's failure to qualify for its benefits while assigned to OSPA does not render the legislative scheme invalid on its face.


We reach a similar result as to her claim that the legislative scheme is invalid as applied to her. The thrust of her argument is premised on her claim that "an inaccurate designation has been applied to [her] duties for th[e] period prior to April 16, 2005," precluding her from "the only viable way of demonstrating her eligibility for the Prosecutors Part enhanced pension benefits."

While pension statutes "should be liberally construed and administered in favor of the persons intended to be benefited thereby," Geller v. Dep't of Treasury, 53 N.J. 591, 597-98 (1969), "eligibility is not to be liberally permitted," Smith v. Dep't of Treasury, 390 N.J. Super. 209, 213 (App. Div. 2007). "[I]n determining a person's eligibility to a pension, the applicable guidelines must be carefully interpreted so as not to 'obscure or override considerations of . . . a potential adverse impact on the financial integrity of the [f]und.'" Ibid. (citation omitted). A pension fund owes a fiduciary duty to its members and that duty would be thwarted if it were to accept the membership of one who is not eligible to receive its benefits. See Mount v. Trs. of Pub. Employees' Ret. Sys., 133 N.J. Super. 72, 86 (App. Div. 1975).

"[A] fundamental obligation in construing a statute is to effectuate the intent of the Legislature[.]" N.J. Educ. Ass'n, supra, 327 N.J. Super. at 411. Where the plain language of a statute is clear, courts will enforce the statute as written. Ibid. If a statute's meaning is not self-evident, the legislative history underlying the statute may aid in discovering the intent of the Legislature. Ibid.

Here, eligibility for the Prosecutors Part was clear on its face, and did not encompass petitioner's position as a DAG assigned to OSPA. The statute explicitly defines a "prosecutor" as a "county prosecutor . . . or assistant prosecutor" or a "deputy attorney general . . . [in] the Division of Criminal Justice[.]" N.J.S.A. 43:15A-155. The plain language of the statute precludes petitioner from receiving credit under the Prosecutors Part prior to April 16, 2005, while she was assigned to OSPA. Additionally, the legislative history concerning the Prosecutors Part amply supports the Board's determination to this effect.*fn7 As the ALJ explained:

In choosing the words employed in the definition section of the statute, the Legislature identified the eligible deputies as those "in the" [DOLPS], thus excluding any lawyers in State government who were not even employed by that Department, regardless of their function, and "assigned to [DCJ] pursuant to" the Criminal Justice Act. This particular language has the effect of eliminating any suggestion of coverage for "civil" deputies. But the Legislature could have chosen to limit its words to the phrase "assigned to that division," and left out any reference to the Criminal Justice Act. As it chose to use the words they cannot be viewed as merely superfluous.

[(quoting Allen, Faust & Epstein, supra (internal citations omitted).]

The ALJ was correct in finding petitioner was ineligible for enhanced benefits during her position in OSPA.


Petitioner next argues that equitable estoppel should apply, so as to preclude the Board from denying her enhanced benefits under the Prosecutors Part. Specifically, pointing to the director's assurances, petitioner maintains that she "believed that it was a 'virtual certainty' that the Prosecutor's Part benefits would be enacted into law and that as an A[assistant] P[rosecutor] in Middlesex County she would be eligible for those benefits." Petitioner contends that she would not have left her position as an assistant prosecutor and transferred to OSPA if she had known that her eligibility status would be affected.

Petitioner's argument is flawed and factually unsupportable. At the time that she left her position with the Middlesex County Prosecutor's Office in May 2000, the legislation governing the Prosecutors Part had not yet been enacted, and had not even been proposed. No eligibility provisions existed at the time she transferred to OSPA. In other words, when petitioner left the Middlesex County Prosecutor's Office in May 2000, she did not become ineligible for enhanced pension benefits; she was never eligible for such benefits to begin with, as the statute establishing the Prosecutors Part was not introduced until December 2001 and did not take effect until January 7, 2002. The claim is without merit.

As the ALJ noted:

It is certainly true that [petitioner] did change her position from a member of the Middlesex County Prosecutor's Office to a state employee in [DOLPS]. But she did so in May 2000. At that time there was no Prosecutor's Part. The prosecutors had failed in their [prior] attempt to obtain membership in the PFRS[,] and [n]o legislation had yet been introduced; much more important, none had been enacted[] that would create a special part in PERS for prosecutors. [Petitioner] may have had some reason to think that there might be legislation to enact a special pension for prosecutors, but when she made her decision to move to State employment that prospect was far from certain. Indeed, it may be hard to conceive that any action taken in reliance upon the possibility of the passage of legislation by both houses of the Legislature and signature by the Governor can ever be a basis for an estoppel, because the passage of even introduced legislation is fraught with such uncertainty until the moment of enactment. Further, while there may have been statements that [petitioner] would be a "prosecutor" no one could be certain about the membership requirements for the Prosecutors Part until the exact language of the enacted legislation was known.

We reject any claim of estoppel.


Finally, petitioner argues that the Board's determination that she was not eligible to obtain credit under the Prosecutors Part prior to April 16, 2005, deprived her equal protection of the law because it resulted in disparate treatment from those who are similarly situated. Specifically, petitioner maintains that she was part of a "transition group" instituted by Attorney General Harvey, as prior to January 7, 2002, the effective date of the Prosecutors Part, an individual's job designation was largely irrelevant and was purely governed by budgetary and accounting considerations. Petitioner maintains that, after the date upon which the Prosecutors Part took effect, these practices were corrected to reflect job assignments accurately as, for the first time, such designations "became important."

Petitioner's assertions are not supported by the record and this argument is without merit. We have carefully reviewed petitioner's remaining arguments and conclude that they are, likewise, without merit. R. 2:11-3(e)(1)(E).


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