ROMEO CASCAES v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6074-06T26074-06T2

ROMEO CASCAES,

Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent.

_________________________________________________

 

Argued March 12, 2008 - Decided

Before Judges Axelrad, Payne and Messano.

On appeal from a Final Administrative

Decision of the Board of Trustees, Public

Employees' Retirement System, Docket No.

2-10-204343.

Ernest H. Ehling, Jr., argued the cause

for appellant.

Peter A. Garcia, Deputy Attorney General,

argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel, Mr. Garcia, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Romeo Cascaes appeals from a final administrative decision of the Board of Trustees, Public Employees' Retirement System (PERS), declaring him ineligible for retirement benefits and requiring the return of benefits paid to date in the amount of $22,323.68. We affirm.

Cascaes became a member of PERS in February 1, 1968, while employed as Data Processing Manager for the Board of Chosen Freeholders of Monmouth County. In January 1, 1972, he acquired dual membership in PERS when he enrolled as a Township Committeeman for the Township of Freehold, an elective position that he kept until appointed to fill the position of Acting Freehold Township Clerk in or around December 1, 1976. Cascaes was elected to the position of Township Clerk in the general election of 1977 and reelected in 1980 for the term commencing on January 1, 1981 and ending on December 31, 1983.

By statute effective January 6, 1982, the Legislature enacted N.J.S.A. 40A:9-133.1, which transformed the office of municipal clerk into an appointed one with the goal of enhancing professionalism. It provided:

a. The provisions of any other law to the contrary notwithstanding, commencing on the effective date of P.L.1981, c.394, all municipal clerks shall hold office by virtue of appointment pursuant to the provisions of N.J.S. 40A:9-133, except as otherwise provided in this section.

b. All municipal clerks holding office on the effective date of P.L.1981, c.394 shall continue in office until their successors are appointed in the manner provided by N.J.S. 40A:9-133.

See also 40A:9-133(a) (requiring that "[i]n every municipality there shall be a municipal clerk appointed for a three-year term by the governing body of the municipality.").

Cascaes continued to serve in the appointed position of township clerk following the passage of N.J.S.A. 40:A9-133.1. However he never formally received an appointment to that position. Moreover, though no further elections for township clerk were held, Freehold did not revise its ordinance to define the position as appointive until some time after December 2005.

In November 1999, Cascaes wrote to the New Jersey Division of Pensions and Benefits to inquire whether he would be eligible for pension benefits if he retired from his employment with Monmouth County while retaining his position as Freehold Township Clerk, which he characterized as an elective one. His letter stated:

I have been the elected Township Clerk of the Township of Freehold since 1977. Currently, I am also the Director of Public Information for the County of Monmouth.

Some years ago, legislation was enacted permitting elected officials to retire from a position with in [sic] the [PERS] and yet at the same time retain their elected positions.

Would you kindly let me know whether I, as the elected Township Clerk, fall under this exemption should I decide to retire from my position with the County of Monmouth.

The Division responded:

The provisions of Chapter 52 will now permit an elected official who retires from the PERS and is granted a retirement allowance that is not based solely upon his elective position to receive 100% of his PERS retirement allowance plus 100% of the salary of his elected position for as long as he remains in elected office. The former limitation that retiree could only serve for the remainder of his elective term immediately after retirement no longer applies. Such an individual will continue to receive 100% of both his PERS retirement allowances and post-retirement elective office salary even if he is reelected after retirement. The provisions of Chapter 52 appear to apply to all elective offices whether at the State, County, or Local level.

Cascaes' inquiry and the Division's response were premised upon N.J.S.A. 43:15A-47.2, which permits a member of PERS to receive pension benefits upon retirement while still drawing a salary from a second, elected position. The statute provides:

Notwithstanding any contrary provision of P.L. 1954, c. 84 (C. 43:15A-1 et seq.), and except as may be otherwise provided in P.L. 1972, c. 167 (C. 43:15A-135 et seq.), a member of the retirement system shall be eligible to retire while holding public office to which he was elected and receiving the full salary for that office if his retirement allowance is not based solely on his service in the public office to which he was elected, and no contributions shall be required of the member covering that service.

Nothing in the record suggests that Cascaes brought to the attention of the Division the effect on his "elected" position of N.J.S.A. 40A:9-133.1, or that the Division considered the statute when framing its response.

Cascaes applied for retirement from his Monmouth County position effective February 1, 2005. Although, on May 18, 2005, PERS initially approved his application for pension benefits retroactive to February 1, two days later, Cascaes was notified that his pension benefits would be suspended as the result of his continued employment by Freehold Township. Cascaes was requested to return the $22,323.68 in pension benefits that he had previously received. The Division's letter stated: "It is the position of the Division that the title of Township Clerk is not an elected position and therefore does not fall under the continued employment exception of N.J.S.A. 43:15A-47.2." Cascaes appealed, requesting a hearing on the issue of his entitlement to pension benefits. The matter was thereupon transferred to the Office of Administrative Law, tried on a stipulated record, and determined in Cascaes' favor. However, on June 21, 2007, the PERS Board rejected the recommendation of the administrative law judge, and on July 19, 2007, it issued a final administrative decision in which it concluded as a matter of law that by virtue of N.J.S.A. 40A:9-133.1 the position of municipal clerk was an appointive one. The Board then reasoned that "[b]ecause the position is appointed, whomever occupies the position is subject to the mandatory enrollment provisions of N.J.S.A. 43:15A-7. Correspondingly, the exception to mandatory enrollment provided under N.J.S.A. 43:15A-47.2 does not apply to this position."

Additionally, the Board found that Cascaes' retirement was not bona fide in accordance with N.J.A.C. 17:2-6.1, which requires that "[m]embers enrolled at multiple PERS locations must retire from employment in all covered positions before a retirement shall become effective."

A Petitioner who has begun receiving pension benefits, such as Cascaes, may not continue receiving those benefits "while continuing in employment" in the same position or in any other position requiring membership. Vliet v. Board of Trustees of the Public Employees' Retirement System, 156 N.J. Super. 83, 89 (App. Div. 1978). The purpose is to prevent manipulation of the pension system by working for governmental agencies while receiving a public pension. The role of the PERS board is "to preserve the fiscal integrity of the system by vigilantly guarding against abuses." Mastro v. Board of Trustees, Public Employees' Retirement System, 266 N.J. Super 445, 456 (App. Div. 1993).

As a final matter, the Board concluded that principles of estoppel arising from the Division's response to Cascaes' 1999 letter did not bar rejection of Cascaes' claim. It noted that Cascaes had incorrectly asserted in his letter to the Division that he was an elected official; the Division did not acknowledge that a municipal clerk held elective office. "Under these circumstances," the Board stated, "there can be no reasonable reliance on the 1999 letter since the agency never told Cascaes he would be exempt from the enrollment requirements when he discontinued his multiple employment status and was employed in only one position, i.e. that of a municipal clerk." Further, the Board noted that the issue had not been raised directly by Cascaes at the time of his 2005 retirement application. And finally, the Board stated that Cascaes' continued employment with the Township could not be viewed as a detriment to him because he continued to accrue service credit in the system while such employment was maintained."

We affirm substantially for the reasons set forth by the PERS Board in its July 19, 2007 decision. As the Supreme Court has observed:

Reviewing courts should give considerable weight to an agency's interpretation of a statute the agency is charged with enforcing. Appellate courts, however, are not bound by an agency interpretation of a strictly legal issue, Mayflower Securities Co., Inc. v. Bureau of Securities in Division of Consumer Affairs of Dept. of Law and Public Safety, 64 N.J. 85, 93 (1973), when that interpretation is inaccurate or contrary to legislative objectives. See New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

[G.S. v. Dept. of Human Servs., Div. of Youth and Fam. Servs., 157 N.J. 161, 170 (1999).]

In the present matter, the Board's interpretation of N.J.S.A. 43:15A-47.2, a statute it is charged with enforcing, is consonant with the goal of exempting only genuine elected public officeholders from those multiple members of the PERS system who must retire from all covered positions before being entitled to retirement benefits. We, as did the Board, find it disingenuous for Cascaes to claim in the present circumstances that he remains an elected township official, when the last election to a three-year post occurred in 1980 for a term extending from January 1, 1981 to December 31, 1983 and when his office was transformed by a 1982 statute into an appointive one. While the relevant statutory language can arguably be manipulated to reach the goal that Cascaes seeks, we are satisfied that his strained reading does not satisfy the intent of either N.J.S.A. 40A:9-133.1 or N.J.S.A. 43:15A-47.2. Moreover, as the Board has noted, adoption of Cascaes' statutory analysis would permit manipulation of the PERS pension system in a manner that directly undercuts the Board's responsibility to preserve the fiscal integrity of the system and to guard against abuse.

We do not find it necessary to reach Cascaes' argument that he held tenure at the time of the statutory change and therefore could be removed only for cause after a fair and impartial hearing. Nothing in the record suggests that Cascaes has been removed from his position, and for that reason, the issue that he presents is not ripe. We also decline to address Cascaes' equal protection and due process arguments, finding them to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The argument that the Board acted in bad faith is equally unmeritorious.

Affirmed.

The municipal clerk's primary responsibility is to administer primary, general and school board elections within the municipality. See Senate County and Municipal Government Committee Statement to Senate, No. 3155 (May 4, 1981) ("This bill would continue the progress toward a professionalization of municipal administrative offices by eliminating the election of municipal clerks . . . ."). See also Assembly Municipal Government Committee Statement to Senate, No. 3155 (June 29, 1981) ("Senate Bill No. 3155 would eliminate the election of all administrative officers currently elected in order to stress the professional qualifications needed to hold these positions.").

In this respect, the Board distinguished the trial court decision in Republican Comm. of Garwood v. Garwood, 140 N.J. Super. 593 (Law Div. 1976), noting that in Garwood, the holdover continued to serve in an elective position, whereas in the present case, the "office" of municipal clerk changed in 1982. "It was no longer elected and no matter how the incumbent attained the position, in May 2005 when petitioner retired, the office of municipal clerk was an appointive one."

(continued)

(continued)

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A-6074-06T2

July 24, 2008