On appeal from the Department of Treasury, Division of Pensions and Benefits, Docket No. PERS 115974.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2012
Before Judges Axelrad and Nugent.
Appellant Robert Joya appeals from the final administrative determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) that denied his application for a deferred retirement allowance under N.J.S.A. 43:15A-38.
The statute provides that a member of the PERS who has completed ten years of service and has been "separated voluntarily or involuntarily from the service, before reaching service retirement age, and not by removal for cause on charges of misconduct or delinquency," may elect to receive a deferred retirement allowance. The Board denied appellant's application because he had been removed from service for cause based on charges of misconduct. We affirm.
Appellant enrolled in the PERS in October 2000 when he was appointed to the position of Instructor Counselor with the Department of Corrections (DOC).*fn1 On December 23, 2008, following a plenary departmental hearing, appellant was removed from office for cause, which included a determination that he was guilty of current charges and had a significant disciplinary history. He did not file an appeal from the final notice of disciplinary action removing him from office.
On March 24, 2010, appellant filed an application with the
PERS for a retirement allowance commencing July 1, 2010.*fn2
Meanwhile, in February 2010, appellant's collective bargaining representative had reached a mediated settlement agreement with a DOC representative concerning appellant's removal from office. The representatives agreed that the penalty of removal for appellant's misconduct would be modified to a resignation in good standing effective December 23, 2008. Appellant refused to sign the disposition settlement document, however, for personal reasons. Consequently, his removal from office for misconduct remained in effect when he applied for a service retirement allowance.
Because appellant had been removed from office for cause, the Board denied his application to receive a deferred retirement allowance, N.J.S.A. 43:15A-38(b), and confirmed its decision in a letter dated January 20, 2011. Appellant filed an administrative appeal. On February 16, 2011, the Board denied the appeal as well as appellant's request for a hearing in the Office of Administrative Law. The Board issued its final administrative determination on March 17, 2011. This appeal followed.
Appellant argues that he was removed from his position with the DOC for something that he did not do. He asserts that two pension counselors told him he would be eligible for a service pension on July 1, 2010, after his sixtieth birthday. Appellant explains that he rejected the mediated settlement, which would have permitted him to resign in good standing, because he did not want to face the possibility of repaying unemployment benefits that he had received.
Our review of administrative agency action is limited.
Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role is generally restricted to three inquiries: (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 ...