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10 N.J.A.R. 178

Police and Firemen's Retirement System, Board of Trustees of the; M., T.J. v
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Citation: 10 N.J.A.R. 178
Decision Date: 1986
Synopsis: Petitioner's request for an ordinary disability retirement pension was denied on the grounds that petitioner's criminal misconduct and the nature of the crime warranted full forfeiture of his pension. Petitioner appealed and the matter was transmitted for hearing to the Office of Administrative Law. Ihe facts of the case were stipulated. Petitioner, a patrolman since 1973: was arrested in 1984 and charged with committing acts of aggravated sexual assault on his 17-year-old daughter from 1981 through 1984, in violation of N.J.S.A. 2C:14-2(a). As the result of a plea bargaining agreement, petitioner pleaded guilty to one count of aggravated sexual assault in the second degree and was sentenced to Avenel as a sex offender for the maximum period permissible. Ihe administrative law judge assigned to the case agreed that petitioner's conviction warranted full forfeiture of his pension rights. The judge applied the 11 balancing factors set forth in Uricoli v. PFSR, 91 N.J. 62 (1982), in reaching his decision. He rejected petitioner's contention that Masse v. Public Employees' Retirement S)'stenl, 87 N.J. 252 (1981) and Procaccino v. Public Employees' Retirement S)'stem, 87 N.J. 265 (1981) controlled the case, holding that the rule in Masse and Procaccino is now contained among the balancing factors in the Uricoli approach. Applying Uricoli, the judge found the majority of factors favored petitioner, but these were outweighed by factors seven, eight and nine. Factor seven is the nature of the misconduct or crime, which the judge found to be grave and substantial. Factor eight is the relationship between the misconduct and petitioner's public duties. Ihe judge rejected petitioner's contention that his criminal misconduct was entirely unrelated to his public duties, saying petitioner violated his unceasing duty as a patrolman to obey all laws and citing Moorestown Twp. v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), certif. den. 47 N.J. 80 (1966), to the effect that a police officer must maintain an image of personal integrity and dependability. Finally, factor nine concerns the quality of moral turpitude, which the judge found to be of the highest order. Petitioner also argued that he should be permitted to receive disability retirement benefits if the benefits are fully assigned to his wife for the benefit of the family, pursuant to N.J.S.A. 43:1-2. That statute allows pension benefits of one confined to prison to be paid to the family if the pension is necessary for the maintenance of minor children. Since petitioner did not demonstrate that his pension was necessary for the maintenance of minor children, the judge held that N.J.S.A. 43:1-2 did not apply. Upon review, this initial decision was adopted by the Board of Trustees of the Police and Firemen's Retirement System.
Statute(s) Cited: 43:1-2 
Citation Tracker adopted-Bd. of Trustees; reversed & remanded-218 N.J. Super. 274 (App. Div. 1987) [Updated through 1991]