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13 N.J.A.R. 756

Widdis, Charles C. v. Public Employees' Retirement System
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Citation: 13 N.J.A.R. 756
Decision Date: 1989
Agency: PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Synopsis: Petitioner appealed the denial of his application for a deferred retirement allowance pursuant to N.J.S.A. 43:15A-38(b). The matter was transmitted to the Office of Administrative Law for a hearing. Petitioner worked as an engineer for three different municipalities between 1961 and 1982: Howell Township, Atlantic Highlands and Long Branch. In 1982, petitioner was indicted for misconduct in office, official misconduct and conspiracy based on his conduct in Howell and Long Branch. He was convicted on two counts in 1983, fined, and ordered to pay restitution. The court also found that petitioner had forfeited public employment. The administrative law judge assigned to the case concluded that petitioner was entitled to deferred retirement benefits for the entire time he worked for Atlantic Highlands because no misconduct was associated with that position. Petitioner was also entitled to partial retirement benefits for the time he worked in Howell. The judge said a balancing test, as used in Uricoli, was appropriate to determine the extent of pension forfeiture. Considering petitioner's length of service, his otherwise unblemished employment history and other factors, the judge concluded that petitioner should receive pension benefits for the time until he commenced the wrongful conduct for which he was convicted. Petitioner was not eligible for pension benefits from Long Branch because he did not have the required number of years of service there and, in addition, if his employment had continued it would have been forfeited by his misconduct. Upon review of this initial decision, the Board of Trustees of the State of New Jersey 757 Public Employees' Retirement System held that petitioner was entitled to retirement benefits based only on his employment with Atlantic Highlands. His service with Howell and Long Branch was tainted by misconduct and therefore all retirement benefits were subject to for- feiture. The Board disagreed that petitioner should receive partial benefits based on the time he worked in Iqowell. The Board reasoned that N.J.S.A. 43:15A-38 requires forfeiture of all deferred retirement benefits when the employee is convicted of misconduct, regardless of whether he left the job before or after being indicted. The Appellate Division reversed and remanded. Applying Uricoli, the court held that petitioner was entitled to his vested retirement benefits in Howell until the time of his misconduct. Bernard F. Boglioli, Esq. for petitioner Kathe F. Mullally, Deputy Attorney General, and Francine W. Kaplan, Law Assistant, for respondent (W. Cary Edwards, Attorney Gen- eral of New Jersey, attorney)