IN THE MATTER OF VALERIE JACALONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF VALERIE JACALONE.

________________________________________

July 1, 2015

Submitted February 10, 2015 Decided

Before Judges Ostrer and Hayden.

On appeal from the State of New Jersey, Division of Pensions and Benefits, Public Employees' Retirement System, Docket No. PERS 934783.

Anthony J. Randazzo, attorney for appellant Valerie Jacalone.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Trustees, Police and Firemen's Retirement System, (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

Valerie Jacalone appeals from the November 7, 2013 final decision of the Board of Trustees (Board) of the Public Employees Retirement System (PERS), which denied her application for deferred retirement benefits. The Board determined that Jacalone was disqualified for deferred retirement because she had been removed from her public employment for cause on charges of misconduct related to her employment. We affirm.

The salient facts are not disputed here. Jacalone first enrolled in PERS in 1993 and continued her membership until being involuntarily terminated from her civilian job as a record clerk with the Passaic County Sheriff's Office on January 11, 2011. Jacalone was also the President of the Passaic County Sheriff's Department Professional Association (the Association), the union representing the civilian employees of the Sheriff's Office, from 2008 through 2010. On October 5, 2010, Passaic County filed a Preliminary Notice of Disciplinary Action and suspended Jacalone after she was arrested on third-degree theft by deception, N.J.S.A. 2C:20-4, and charged with stealing $23,581 from the Association's bank account.

On January 11, 2011, Jacalone pled guilty to the charge and received a sentence of probation for 364 days. She also agreed to make full restitution of the stolen funds to the Association. Further, pursuant to an order of forfeiture under N.J.S.A. 2C:51-2, she forfeited her current public employment and was permanently barred from seeking public employment in the future. On the same day, Passaic County issued a Final Notice of Disciplinary Action, terminating Jacalone based upon charges of conduct unbecoming a public employee and involvement in a crime of moral turpitude that negatively affects the operation of the department. Jacalone did not contest the removal.

At the time of her termination, Jacalone had eighteen years and nine months of service credits in PERS and was fifty-seven years old. Approaching her sixtieth birthday, Jacalone applied for deferred retirement benefits on May 13, 2013 for a September 1, 2013 retirement. At its regular monthly meeting in August 2013, the Board denied Jacalone's application based on N.J.S.A. 43:15A-38, which prohibits a PERS member from receiving deferred retirement benefits if removed for cause relating to employment.

Jacalone appealed the determination and requested a hearing at the Office of Administrative Law. The Board denied the request after determining there were no issues of material fact requiring a hearing. On November 7, 2013, the Board issued its final administrative determination denying Jacalone's request for deferred retirement benefits. This appeal followed.

On appeal, Jacalone contends that the crime involved theft from the Association, not Passaic County, her employer, and thus was not related to her employment. She also claims that she was not removed from her position as she had voluntarily relinquished her position earlier in the day by pleading guilty and agreeing to the order of forfeiture. Thus, she argues, N.J.S.A. 43:15A-38 does not bar her from receiving deferred retirement benefits. We do not agree.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). In determining whether an agency's decision is arbitrary, capricious, or unreasonable, reviewing courts assess

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"A reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" Stallworth, supra, 208 N.J. at 194 (quoting Carter, supra, 191 N.J. at 483). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). However, "an appellate court is 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Carter, supra, 191 N.J. at 483 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Indeed, an agency's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

We are satisfied that the Board correctly determined that Jacalone's application for deferred compensation was barred by N.J.S.A. 43:15A-38, which states in pertinent part

Should a member of [PERS], after having completed 10 years of service, be separated voluntarily or involuntarily from the service, before reaching service retirement age, and not by removal for cause on charges of misconduct or delinquency, such person may elect to receive

. . . .

(b) A deferred retirement allowance, beginning at the retirement age . . . .

[(emphasis added).]

This provision of N.J.S.A. 43:15A-38 is automatically invoked whenever a public employee has been removed for cause on charges of misconduct that related to his or her official duty. Borrello v. Bd. of Trs., Pub. Emps. Ret. Sys., 313 N.J. Super. 75, 78 (App. Div. 1998). As we recently highlighted, "[f]orfeiture of deferred benefits pursuant to N.J.S.A. 43:15A-38 is conditioned on an involuntary removal due to misconduct related to employment." In re Hess, 422 N.J. Super. 27, 37 (App. Div. 2010) (finding no forfeiture where a PERS member pled guilty to criminal charges for an incident occurring off the job during non-working hours and having no connection whatsoever to the member's work). In Jacalone's case, the Board considered the statute and the holding in Hess and concluded, "[t]he charges that led to [] Jacalone's dismissal touched upon and were directly related to her employment with Passaic County, thereby making her ineligible for [] [d]eferred retirement benefit[s]."

While what constitutes "conduct related to employment" in N.J.S.A. 43:15A-38 has not been explored in a published opinion since Hess, we discern from the words themselves that there must be a relationship or nexus between the employment and the conduct leading to the termination. In such an event, we can obtain guidance from a comparable statute. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196-97 (2007). We find instructive N.J.S.A. 2C:51-2, which concerns the consequences to public office holders and employees of conviction for certain crimes. N.J.S.A. 2C:51-2(a) requires a public employee who has been convicted of specified crimes to forfeit his or her public employment, including that the employee "is convicted of an offense involving or touching such office, position or employment[.]"N.J.S.A. 2C:51-2(a)(2). In addition, an employee "convicted of an offense involving or touching on his [or her] public office, position or employment, shall be forever disqualified from holding any office or position of honor, trust or profit under this State . . . ." N.J.S.A. 2C:51-2(d). In 2007, the Legislature added additional language to subsection (a) and (d) to clarify that "as used in this subsection, 'involving or touching such office, position or employment' means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person." L. 2007 c. 49. 5; N.J.S.A. 2C:51-2(a), (d).

In Moore v. Youth Corr. Inst., 119 N.J. 256, (1990), the court found forfeiture appropriate when a corrections officer harassed his supervisor by stalking him at his home when off-duty. Id. at 261. In finding forfeiture appropriate, the court held that the "nexus between the offense and employment is not limited by time and location. When the infraction casts such a shadow over the employee as to make his or her continued service appear incompatible with the traits of trustworthiness, honesty, and obedience to law and order, then forfeiture is appropriate." Id. at 270. In McCann v. Clerk of Jersey City, 167 N.J. 331 (2001), the Court, commenting on Moore, noted that "the petitioner's harassment of his co-employee . . . bore a direct and substantial relationship to their respective governmental positions." Id. at 323. The McCann court held that "involving or touching on his public office" necessarily implied "a determination on the part of the Legislature to limit the scope of the disqualification provision to crimes that are related directly to an individual's performance in, or circumstances flowing from, a specific public office or position held by that individual." Id. at 321. Put differently, "[w]hen an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office." Ibid.

Thus, a nexus between the position and the conduct has been found when conduct touched on the job even if not part of the official duty. See State v. Williams, 355 N.J. Super. 579, 585 (App. Div. 2002) (finding police officer's conduct during a personal road rage incident warranted forfeiture when he used his service revolver and showed his badge); Debell v. Bd. of Trs., Pub. Emps. Ret. Sys., 357 N.J. Super. 461, 464 (App. Div. 2003) (finding forfeiture appropriate when employee engaged in insurance fraud against the State Health Benefits Program). In contrast, in State v. Hupka, 203 N.J. 222 (2010), the Court found no forfeiture by an off-duty police officer who pled guilty to criminal sexual conduct with a female acquaintance. Id. at 227, 239. Concluding that the conduct did not involve or touch on defendant's employment, the court reasoned that "there was no relationship between defendant's employment as a police officer, the trappings of that office, or his work-related connections, and the commission of the offense to which he pled guilty, or to his victim[.]" Id. at 239; see also State v. Pavlik, 363 N.J. Super. 307, 312 (App. Div. 2003) (finding an insufficient nexus where the public employee committed acts of domestic violence against his grandfather and resisted arrest).

Guided by the foregoing, we consider the facts here. In this case, Jacalone was president of the Association only because of her position as a records clerk in Passaic County. In that role, she stole money from her coworkers over the course of two years. Certainly, her conduct resulted from "circumstances flowing from her position" or from a "work-related connection" to her position. In any case, it cannot be said to be "wholly unrelated" to her position. McCann, supra, 167 N.J. at 321. Accordingly, we reject Jacalone's claim that N.J.S.A. 43:15A-8 does not apply to her because the conduct for which she was removed was not related to her employment.

We also find no merit to Jacalone's claim that she was not removed for misconduct because she had "voluntarily" pled guilty and agreed to forfeit her position and all future public employment earlier in the day that the Final Notice of Disciplinary Charges were served. First, there was nothing voluntary about her forfeiture. New Jersey law requires that a public employee forfeit his or her position when convicted either of a crime involving dishonesty, a crime of the third degree or above, or an offense "involving or touching such office, position, or employment[.]" Williams, supra, 355 N.J. Super. at 582 (quoting N.J.S.A. 2C:51-2) (internal quotations omitted). As she pled guilty to a third degree crime, Jacalone's forfeiture was not a voluntary condition of her guilty plea; it was mandated by N.J.S.A. 2C:51-2. Ibid. Thus, there was no "voluntary resignation" at the entry of her guilty plea as she was mandatorily terminated by operation of law. Ibid. Moreover, nothing in the record shows that Jacalone resigned in good standing or ever tendered her resignation to Passaic County. Rather, Passaic County filed preliminary removal charges, which were pending against her since 2010 and apparently held in abeyance for the criminal case to resolve. After she was served with the Final Notice of Disciplinary Action, Jacalone failed to contest on the ground that she could not be discharged because she was no longer a public employee; in fact, she did not contest it at all.

In sum, we are convinced that the Board appropriately denied Jacalone's application for deferred retirement benefits based on her removal from employment for cause on charges related to her employment.

Affirmed.