ANTHONY CARRINO v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4979-04T34979-04T3

ANTHONY CARRINO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE POLICE

AND FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________

 

Submitted September 20, 2006 - Decided October 24, 2006

Before Judges Wefing and Parker.

On appeal from a Final Administrative

Determination of the Board of Trustees,

Police and Firemen's Retirement System.

Fox and Fox, attorneys for appellant

(David A. Ward, on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel;

Susanne Culliton, Deputy Attorney General,

on the brief).

PER CURIAM

Anthony Carrino appeals from a Final Administrative Decision of the Board of Trustees of the Police and Firemen's Retirement System (PFRS). After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 1970, Carrino became a member of the Newark Police Department and in conjunction with that, a member of PFRS. He made regular pension contributions to PFRS thereafter.

In 1974, Carrino decided to seek elective office, and he requested a leave of absence from the police department to permit him to campaign for a seat on the Newark City Council. He was successful and was elected to represent Newark's North Ward on the City Council, and his leave of absence from the police department was extended. Carrino was reluctant to resign from the Police Department because of the uncertainty surrounding an elected position, and he requested and received regular extensions of his leave of absence as he continued to be re-elected. During the entire period he was on leave of absence, he made regular pension contributions to PFRS, as he was permitted to remain a member of PFRS by virtue of N.J.S.A. 43:16A-3.4.

In 1978, Newark created a pension system for its employees, Newark Employees Retirement System (NERS), and Carrino was advised that he was required to join NERS in light of his membership on the Newark City Council. Carrino thereafter made regular pension contributions to NERS as well as to PFRS.

In 1994, PFRS initiated an early retirement incentive program under which members who had twenty or more years of service and elected to retire would be credited with five additional years of service. Carrino wished to take advantage of this program. He was advised in 1995, however, that he could receive PFRS benefits only if he withdrew completely from NERS or if legislation were passed permitting an individual to receive a benefit from more than one public retirement system based upon the same period of service.

When it was apparent that such legislation was not forthcoming in the foreseeable future, Carrino elected to withdraw from NERS in order to receive benefits from PFRS. PFRS would not process his benefit application until it received written verification of such election. PFRS did not receive such verification until March 1999 when Carrino executed a receipt acknowledging the return of his accumulated contributions to NERS and releasing all claims against NERS.

PFRS then learned that Carrino continued to serve as a Newark councilman and by letter dated April 13, 1999, it advised him that he could not receive PFRS benefits while continuing to hold a seat on the council. Carrino remained on the council until he was defeated in 2002.

In the interim, the Legislature passed N.J.S.A. 43:16A-5.1 which states in pertinent part:

[A] member of the retirement system shall be eligible to retire while holding public office to which the member was elected and receiving the full salary for that office if the member's retirement allowance is not based solely on service in the public office to which the member was elected, and no contributions shall be required of the member covering that service.

The statute, passed in 1999, became effective on May 3, 1999.

Carrino began proceedings in which he sought to collect his PFRS pension with an effective retirement date of October 1994. Following a hearing, the administrative law judge issued written findings of fact and conclusions of law in which she concluded that PFRS had properly calculated Carrino's retirement date at August 1, 1999.

 
Carrino challenges that determination on appeal. We have carefully canvassed the record, and we affirm, substantially for the reasons expressed in the decision of Administrative Law Judge Klinger dated February 15, 2005, and adopted by the Board of Trustees of PFRS in its Final Decision of April 12, 2005.

Affirmed.

In connection with those proceedings, Carrino also disputed the calculation of his base salary for pension purposes. He has not pursued that issue on appeal.

(continued)

(continued)

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A-4979-04T3

October 24, 2006