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Pecorelli v. Board of Trustees

Superior Court of New Jersey, Appellate Division

November 27, 2013

CARMINE A. PECORELLI, Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 19, 2013

On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 02-10-120776.

Carmine A. Pecorelli, appellant, argued the cause pro se.

Diane J. Weeden, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Weeden, on the brief).

Before Judges Reisner and Carroll.

PER CURIAM

Carmine A. Pecorelli, presently age eighty-eight, is the recipient of a Public Employees' Retirement System (PERS) pension. He appeals from a September 21, 2012 final agency decision of the PERS Board of Trustees (Board) that required him to reimburse the PERS for all of the retirement benefits he received from the PERS between November 1, 2003 and August 1, 2004, which totaled $28, 275.43. We affirm the Board's decision that when Pecorelli returned to public employment following his retirement, he was required to re-enroll in the PERS pension system. However, under the unique circumstances of this case, the Board erred in failing to apply equitable principles to reduce the amount of the penalty imposed. Accordingly, for the reasons that follow, we reverse that portion of the Board's decision, and remand for reinstatement of the $13, 821 penalty imposed by the Administrative Law Judge (ALJ).

I.

We briefly summarize the procedural history and the factual findings made by the ALJ, recognizing that the Board adopted those factual findings, and Pecorelli takes no specific exception to them.

Pecorelli commenced employment with the New Jersey Department of Commerce in 1980, and became enrolled in the PERS. He continued to work for the Commerce Department for approximately twelve years prior to submitting his retirement application to the PERS. At its regular monthly meeting of July 8, 1993, PERS approved Pecorelli for a [military] Veteran Retirement, effective October 1, 1992. The Board's approval letter to Pecorelli advised him that "[i]f you return to public employment, you must notify this office immediately." Pecorelli testified that, to his knowledge, he never received that letter.

The New Jersey State Police, Office of Emergency Management (OEM), is charged with administering Federal Emergency Management Agency (FEMA) grants of financial assistance following the occurrence of natural disasters. A December 1992 coastal storm resulted in a disaster declaration. The OEM was not adequately staffed to deal with the magnitude of claims for disaster aid engendered by the storm, and sought out temporary employees to assist in processing those claims.

Joseph P. Painting, a Senior Planner with the State Police, testified at the hearing that Pecorelli was familiar with FEMA, and he was hired as a temporary employee to process federal grant monies for storm victims. This task was originally expected to take approximately six months. Pecorelli began his work at the OEM as a "grant management specialist" on August 10, 1993. As a temporary employee, he was paid on an hourly basis, and received no health benefits, vacation time, or days off. Seventy-five percent of the funding for these temporary workers was paid by FEMA, and the remaining twenty-five percent by New Jersey. Pecorelli advised Painting that he was collecting a pension, but Painting expressed his belief that this temporary employment would not jeopardize Pecorelli's pension status.

Due to their unanticipated quantity and complexity, claims related to the 1992 disaster were not fully closed out until 2001. The OEM continued to employ Pecorelli throughout this nine-year period, until June 30, 2001, as a temporary, hourly employee, without re-enrolling him in PERS. He subsequently resumed work in the same position from ...


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