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8 N.J.A.R. 7

Public Employees' Retirement System, Board of Trustees; Grimes, Edmund A. v
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Citation: 8 N.J.A.R. 7
Decision Date: 1984
Synopsis: The Board of Trustees of the Public Employee's Retirement System denied petitioner's application for a deferred retirement pursuant to N.J.S.A. 43:15A-38 and after petitioner's request for a hearing the matter was transmitted to the Office of Administrative Law as a con- tested case. The administrative law judge assigned to the case found that peti- tioner had been a member of the retirement system since April 1, 1970 upon his employment as a city councilman. Petitioner became a double enrollee in the system on July 1, 1974 when he began employment with the county as a purchasing agent. In July, 1981, a Federal grand jury charged petitioner with criminal activity pursuant to a five count indict- ment and in February of 1982, petitioner was found guilty on all counts. Petitioner resigned from his position as a city councilman in February of 1982. In March of 1982 petitioner was sentenced to eight years in prison which was subsequently reduced to one year based upon petitioner's ongoing cooperation with the United States Attorney's Office. The administrative law judge determined that N.J.S.A. 43:15A-38 provides that should a member of the retirement system be removed for cause, he may not elect to receive his deferred retirement benefits and the pension is forfeited. As to the position of city councilman, petitioner argued that he was not precluded from receiving a deferred retirement allowance by virtue of the removal for cause provisions because he voluntarily resigned from that position one month before sentencing, which was the effective date of his removal from office pursuant to N.J.S.A. 2C:51-2. The judge rejected this argument noting that to read the provisions of N.J.S.A. 2C:51-2b in connection with N.J.S.A. 43:15A-38 to permit a public employee to resign after a jury verdict or plea of guilty and before sentencing in order to avoid the forfeiture provisions of N.J.S.A. 43:15A-38 would be to create an absurd result. The judge noted that even if appellant were not disqualified from receiving deferred retirement benefits by virtue of his 'removal for cause', would nevertheless be prevented from claiming those benefits because of having failed to complete 10 years of service in the system. Upon review, this decision was adopted by the Board of Trustees of the Public Employees' Retirement System. Steven D. A!tman, Esq., for appellant (Benedict and Altman, attorneys) David M. Katzenstein, Deputy Attorney General, for respondent (Irwin I. Kimmelman, Attorney General of New Jersey, attorney) Initial Decision