On appeal from the Board of Trustees of the Public Employees Retirement System, Agency Docket No. 2-10-230674.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012
Before Judges Lihotz and St. John.
Lawson McElroy, a former municipal court judge, appeals from the Board of Trustees (Board), Public Employees' Retirement System (PERS) August 19, 2010 decision reducing his pension by partially forfeiting his pension service credit after a finding he engaged in ethical and ordinance violations. After reviewing the record on appeal, we affirm the Board's decision.
The record discloses the following facts and procedural history.
On April 6, 1998, McElroy was appointed as a part-time municipal court judge for the City of Trenton. On July 24, 2000, McElroy was nominated by Trenton Mayor Douglas Palmer to the position of a full-time municipal court judge. However, the City of Trenton Clerk's Office has no record of the City Council confirming McElroy's appointment.
On March 7, 2008, the Advisory Committee on Judicial Conduct (ACJC) filed a complaint against McElroy, charging him with violating Canons 1, 2A, 3A(3), and 5G of the Code of Judicial Conduct, Rules 1:15-1(a), 2:15-8(a)(1), (4), and (6), and Trenton Municipal Ordinance No. 01-83 (the Ordinance), stating that a full-time judge may not engage in the practice of law.
Count one of the ACJC complaint stated that on June 13, 2007, McElroy intervened between a municipal court security officer and her supervisor regarding the regular presence of the security officer's niece in the courthouse. McElroy stated he was the security officer's lawyer, directed her to remain silent during the meeting, and threatened to sue her supervisor and the City of Trenton.
Count two stated McElroy practiced law while serving as a full-time judge. On September 20, 2001, Trenton adopted the Ordinance prohibiting full-time judges from practicing law. McElroy maintained a law office after his appointment. In 2005, he represented a deputy court administrator for the Trenton Municipal Court in the sale and purchase of real property. In 2006, McElroy represented another employee of the Trenton Municipal Court in the sale and purchase of real property.
On March 28, 2008, McElroy applied to PERS for ordinary disability retirement benefits and retired from the bench on April 1, 2008. On June 18, 2008, PERS approved his application, effective April 1, 2008.
On July 30, 2008, the ACJC presented to the New Jersey Supreme Court its findings that the charges against McElroy had been proven by clear and convincing evidence, and recommended that McElroy be disciplined. The ACJC also noted McElroy was involved in a prior disciplinary action in which the presentment of the ACJC was adopted and he was publicly reprimanded by the Supreme Court. See In re McElroy, 179 N.J. 418 (2004) (holding McElroy attempted to use his position as a judge to influence a municipal prosecutor). McElroy did not oppose the 2008 findings and recommendations of the ACJC, as he claims his failing health and doctor's advice precluded his objection. On September 29, 2008, the Supreme Court adopted the ACJC's findings and recommendations, and ordered McElroy be "censured and permanently barred from judicial office." In re McElroy, 196 N.J. 457 (2008). McElroy sought reconsideration of the Court's order, which was denied by order dated December 9, 2009.
Following the Supreme court's decision, on February 18, 2009, PERS considered whether McElroy's actions violated the statutory requirement of honorable public service set forth in N.J.S.A. 43:1-3. PERS concluded it did, and ascertained a partial forfeiture of McElroy's pension was necessary for the service period of January 1, 2005 to April 1, 2008, but determined McElroy would not have to return any payments already received. The partial forfeiture rendered McElroy unable to meet the requisite ten-year service credit requirement to qualify for continued receipt of ordinary disability retirement benefits and any corresponding employer-paid health benefits.
McElroy appealed the decision and the case was transferred to the Office of Administrative Law as a contested matter. Both PERS and McElroy filed motions before Administrative Law Judge Joseph F. Martone (ALJ) for summary decision.*fn1
McElroy contended that his appointment as a full-time judge was invalid because the City Council never confirmed the appointment and he reasonably believed he was a part-time judge allowed to practice law. Additionally, McElroy maintained he was changed from a part-time municipal court judge to a "prime-time" judge in 2001 but was never a full-time judge.*fn2 He also argued he was never advised by court administration that he was not allowed to practice law, despite certain personnel being aware of his law practice. He further asserted he should not be bound by the ACJC's findings because he waived his right to a hearing and did not defend the charges.
PERS argued McElroy's misconduct warranted partial forfeiture of his pension benefits. PERS asserted McElroy was barred by the doctrine of collateral estoppel from contending he was not a full-time judge. It also asserted that the de facto officer doctrine compels the recognition of McElroy as a full-time Trenton municipal court judge.
In an Initial Decision dated July 30, 2010, the ALJ granted PERS' motion and denied McElroy's motion, upholding the determination that McElroy's misconduct warranted the partial forfeiture of his service credit under N.J.S.A. 43:1-3.
On August 19, 2010, the Board issued its final administrative determination adopting the findings of fact, conclusions of law, and recommendation of the ALJ's Initial Decision.