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Fabio Cologna v. Board of Trustees

May 1, 2013

FABIO COLOGNA, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, RESPONDENT-RESPONDENT.



On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, Agency Docket No. PFRS 99680.

The opinion of the court was delivered by: Sabatino, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

APPELLATE DIVISION

May 1, 2013

Argued April 8, 2013

Before Judges Parrillo, Sabatino and Carroll.

The opinion of the court was delivered by SABATINO, J.A.D.

In this case of first impression, we ascertain the intended meaning of N.J.S.A. 43:16A-3(5). This statutory provision extends to five years the usual two-year period within which a former member of the Police and Firemen's Retirement System ("PFRS") may resume employment and reinstitute his membership in the retirement system.

Consistent with the Governor's conditional veto message that led to the provision's amendment in 1980, we construe the five-year extended time frame as being confined to only members who lose their public employment as the result of an employer's layoff or reduction in force, or through leave of absence in accordance with the statute. Because appellant in the present case voluntarily resigned from his former employment as a police officer and was not fired, laid off, or granted leave of absence, we affirm the final agency decision of the PFRS Board of Trustees precluding reinstatement of his membership more than two years later.

I.

Police and firefighters are generally eligible to participate in the PFRS pension system. N.J.S.A. 43:16A-3(1). While employed in such occupations, members contribute a portion of their earnings into the pension system. N.J.S.A. 43:16A-15(2). Eligibility for retirement benefits in the PFRS is based upon, among other things, the member's years of service. N.J.S.A. 43:16A-6.

The PFRS statute identifies several events that will terminate an employee's membership in the system. For example, membership ceases if the member "withdraw[s] his aggregate contributions, or become[s] a beneficiary or die[s], or if more than 2 years have elapsed from the date of his last contributions to the system[.]" N.J.S.A. 43:16A-3(3). If a member resigns or is dismissed from his police or fire employment and fails to apply to return his aggregate pension contributions, the PFRS will terminate his membership and hold his accrued contributions until the former member applies for a return of those funds, without interest. N.J.S.A. 43:16A-3(4).

The two-year reactivation deadline set forth in N.J.S.A. 43:16A-3(3) is qualified by the statutory provision at the crux of the present appeal, N.J.S.A. 43:16A-3(5). Section 3(5) provides:

If a member of the retirement system has been discontinued from service through no fault of his own or through leave of absence granted by his employer or permitted by any law of this State and he has not withdrawn his accumulated deductions, his membership may continue, notwithstanding any provisions of this article if such member returns to service within a period of 5 years from the date of his discontinuance from service. [N.J.S.A. 43:16A-3(5) (emphasis added).]

The provision, which was amended to its present form by the Legislature in 1980, has not been interpreted in any published judicial opinion.

Appellant Fabio Cologna, a firefighter employed by the City of Hoboken since February 2008 and a former police officer, seeks the benefit of the five-year reinstatement period within N.J.S.A. 43:16A-3(5). In particular, appellant contends that his prior employment as a police officer ended in September 2005 "through no fault of his own" and that he therefore satisfies the literal terms of the statute. Respondent, the PFRS Board of Trustees, disputes appellant's construction of the statute, as well as his characterization of the events that precipitated the end of his service as a police officer.

A.

The pertinent chronology was developed at a one-day hearing before an Administrative Law Judge ("ALJ"). We summarize the aspects most relevant to our analysis.

Appellant joined the United States Marine Corps shortly following his high school graduation in 1992. During the course of his enlistment, appellant witnessed several traumatizing events, including an accident on board an aircraft carrier, as well as a fatal auto accident involving a friend. Appellant served in the Marines for a total of six years. He was honorably discharged in 1998.

Upon leaving the Marines, appellant began working for the City of Edison in 1999. He enrolled in the Public Employees' Retirement System ("PERS") beginning in October 1, 1999, in conjunction with that municipal employment. Appellant took a leave of absence from his position with the City of Edison in 2004 to attend the Alternate Route Program. The program offers a separate avenue of attending the Police Academy, whereby, as appellant described it, "candidates pay for their own way in order to go through . . . as opposed to the municipalities incurring the costs of training an officer or paying for the insurance, the candidate does that upon himself."

Appellant graduated from the Academy in 2004. Shortly thereafter, on January 3, 2005, he began working as a police officer for the Franklin Township Police Department. Appellant resigned from his position with the City of Edison on the same day. He concurrently transferred his pension contributions from the PERS to the PFRS on January 27, 2005.

The terms of appellant's employment with Franklin Township were such that he was hired on a probationary basis for the first year. As a result, appellant acknowledged that the police department could terminate him "at any time for pretty much any reason[.]" After completing the first year, his ...


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