MICHAEL KANTNER v. 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NOT FOR PUBLICATION WITHOUT THE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-0

MICHAEL KANTNER,

Petitioner-Appellant,

v.

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

___________________________________

Argued May 5, 2015 Decided July 20, 2015

Before Judges Ostrer and Hayden.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of Treasury, PFRS No. 3-10-39123.

Lynda Yamamoto argued the cause for appellant.

Robert E. Kelly, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Danielle P. Schimmel, Deputy Attorney General, on the brief).

PER CURIAM

On December 1, 2009, Michael Kantner retired from his position as chief of county investigators with the Camden County Prosecutor's Office, concluding a thirty-year law enforcement career that included service as a police officer in Westville and Camden City. Less than five weeks after his retirement, Kantner became Assistant Vice President for Public Safety and Emergency Management (AVPPSEM) at Rowan University. While so employed, Kantner received retirement benefits from the Police and Firemen's Retirement System (PFRS) based on his prior law enforcement service.

The Division of Pensions and Benefits (Division) within the Treasury Department determined in February 2012 after completing a documentary review prompted by an anonymous tip that Kantner was ineligible to receive PFRS benefits while serving as AVPPSEM, because that position was also a PFRS-covered position. The Division sought recovery of all retirement benefits paid to Kantner from February 1, 2010 to February 1, 2012, plus pension contributions that it claimed should have been paid. After the PFRS Board of Trustees (Board) affirmed the Division's determination, Kantner obtained a hearing before the Office of Administrative Law. The Board then adopted the administrative law judge's initial decision, and "den[ied] Mr. Kantner's request to continue collecting his monthly PFRS retirement benefits while maintaining his employment with Rowan University."

Kantner appeals. Having reviewed Kantner's arguments in light of the record and applicable legal principles, we reverse.

I.

A PFRS member cannot receive retirement benefits based on prior service if he or she is currently employed in another PFRS-eligible position. If a PFRS retiree accepts new employment in a PFRS-eligible position, his or her retirement benefits shall be cancelled until he retires again.

[I]f a former member of the retirement system who has been granted a retirement allowance for any cause other than disability, becomes employed again in a position which makes him eligible to be a member of the retirement system, his retirement allowance and the right to any death benefit as a result of his former membership, shall be canceled until he again retires.

[N.J.S.A. 43:16A-15.3(a).]1

The key issue in this case is whether Kantner, a retired police officer, became reemployed in a PFRS-eligible position when he became AVPPSEM. The question is governed by N.J.S.A. 43:16A-3.1, which deems certain administrative or supervisory positions as PFRS-eligible if a PFRS member occupies that position within six months of his or her prior service in a PFRS position.

Service with a law enforcement unit or firefighting unit to which the provisions of P.L. 1944, c. 255 (C. 43:16A-1 et seq.) apply in an appointive capacity with administrative or supervisory duties over policemen or firemen or any combination thereof by any person who not more than six months prior to such service served as a member of that or any other law enforcement unit or firefighting unit, as the term "member" is defined in section 1 of P.L. 1944, c. 255 (C. 43:16A-1), shall be deemed to be service as a member under and for all the purposes of the provisions of the act of which this act is a supplement.

[N.J.S.A. 43:16A-3.1.]

The panel in Kossup v. Board of Trustees, Police and Firemen's Retirement System, 372 N.J. Super. 468 (App. Div. 2004), reviewed the history of the provision and the Legislature's underlying intent in adopting it. Id. at 473-76. Originally, it was designed to expand PFRS coverage, to benefit police officers and firefighters who were members of PFRS and were promoted to supervisory civilian positions such as municipal police or fire director. Id. at 473-74. Absent the provision, the promoted employee would cease participating in the PFRS and could not obtain a pension based on the increased salary of the civilian administrative or supervisory position. Ibid.

However, section 3.1 is a double-edged sword. As noted, for the police chief or fire chief promoted to civilian police or fire director, the section provides a means to remain in the PFRS system and earn credits until retirement, at which point the employee would receive a retirement allowance based on the increased salary of police or fire director. However, for the PFRS member who wants to retire from law enforcement and receive PFRS retirement benefits while also receiving a salary from a new public sector position, the section poses a potential impediment. The section bars receipt of both retirement and salary if the PFRS member accepts the described position within six months of leaving a law enforcement or fire-fighting position. N.J.S.A. 43:16A-3.1.

As the Supreme Court has observed, section 3.1 identifies four requirements for continued eligibility as a PFRS member, or for re-enrollment in PFRS

(1) current service with a law enforcement unit or firefighting unit; (2) in an appointive capacity; (3) with administrative or supervisory duties over police officers or firefighters; and (4) service as a member of that or any law enforcement or firefighting unit less than six months prior to any appointment.

[Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J.215, 226 (2009).]

With respect to factor one, the statute as amended was apparently intended to include service with municipal, county or state law enforcement, although the statutory language appears to limit service to municipal and county units. Section 3.1 requires current service with "a law enforcement unit . . . to which the provisions of P.L. 1944, c. 255 (C. 43:16A-1 et seq.) apply" in other words, in a PFRS-covered "law enforcement unit." N.J.S.A. 43:16A-3.1. "Law enforcement unit" is not defined within the PFRS statute. However, the PFRS statute's definition of "policeman" refers to a "permanent, full-time employee of a law enforcement unit as defined in section 2 of P.L. 1961, c. 56 (C. 52:17B-67)" or persons who hold certain state positions. N.J.S.A. 43:16A-1(2)(a) (emphasis added). A "law enforcement unit" is defined by N.J.S.A. 52:17B-67 to mean "any police force or organization in a municipality or county which has by statute or ordinance the responsibility of detecting crime and enforcing the general criminal laws of this State." (Emphasis added).

Notwithstanding the definition in N.J.S.A. 52:17B-67, the Legislature apparently intended to include within the term "law enforcement unit," police forces organized within State government.

Under current law ( N.J.S.A.43:16A-3.1), if a person, immediately after or within six months of serving as a member of a municipal police or fire department covered by PFRS, is appointed to an administrative or supervisory position with that or any other PFRS-covered municipal police or fire department, then the person is required to remain (or reenroll as) a member of the system, even though the new position is covered by a different retirement system or the person is otherwise ineligible for PFRS membership. Under the bill, this requirement of continued membership is extended to cover a former member of any law enforcement unit who, within the six-month limitation period, is appointed to a position with administrative or supervisory duties over policemen or firemen. Thus the rule would apply regardless of the governmental entity (State, county or municipality) that makes the appointment or that employed the person prior to the appointment.

[Senate Budget & Appropriations Comm. Statement to Senate Bill No. 579 June 8, 2000, 209th Legislature (emphasis added).]

The Board adopted a regulation consistent with this intent. It defines a "[l]aw enforcement unit" to mean "any police force or organization in a municipality, county or the State, which has by statute or ordinance the responsibility of detecting crime and enforcing the laws of this State." N.J.A.C. 17:4-1 A. 1.

Regarding factor three, the Hemsey Court held that the supervisory duties over policemen or firefighters must be direct. Hemsey, supra, 198 N.J. at 228. "The Legislature intended N.J.S.A. 43:16A-3.1 to apply to a limited category of civilian employees, that is, administrators or supervisors who directly oversee either police officers or firefighters." Ibid. (emphasis added).2

To understand who qualifies as "police officers," to use the Supreme Court's gender-neutral phraseology, or "policemen," as described in section 3.1, one must look to N.J.S.A. 43:16A-1. To qualify as a "policeman," a person must serve as a "permanent, full-time employee of a law enforcement unit as defined in section 2 of P.L.1961, c.56" which, as noted, refers to municipal or county police forces or the person must be employed by "the State, other than [as] an officer or trooper of the Division of State Police whose position is covered by the State Police Retirement System." N.J.S.A. 43:16A-1(2)(a). The person's "primary duties [shall] include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State." Ibid. And, the person must satisfy four additional criteria. The person must: (1) be "authorized to carry a firearm" while actually performing official duties; (2) have "police powers"; (3) be "required to complete successfully" police training requirements; and (4) be "subject to the physical and mental fitness requirements" that apply to municipal police officers or "comparable physical and mental fitness requirements as determined by the board of trustees." Ibid.

A "policeman" may also include certain administrative or supervisory employees of municipal or county police forces or the State. Id. To qualify as a policeman, such administrative or supervisory employees must be assigned the following identified duties

general or direct supervision of employees engaged in investigation, apprehension or detention activities or training responsibility for these employees and a requirement for engagement in investigation, apprehension or detention activities if necessary, and who is authorized to carry a firearm while in the actual performance of his official duties and has police powers.

[Ibid.]

II.

The Board adopted the initial decision of the ALJ, who conducted a two-day testimonial hearing. The ALJ heard extensive testimony regarding the formal description of the AVPPSEM's duties as set forth in organizational charts and general orders when Kantner sought the position; Kantner's statements and actions in pursuit of the position; Kantner's efforts to ascertain whether the Rowan position would prevent him from receiving PFRS retirement benefits; and Kantner's actual duties once he obtained the position.

The Board attempted to demonstrate that the AVPPSEM job description that existed when Kantner was hired detailed duties involving supervision of police officers within Rowan's department of public safety. The Board presented evidence to establish that Rowan relied on that job description in seeking accreditation of its public safety department. The Board maintains that subsequent revisions of the description, to delete such police-oriented duties, occurred only after the Board questioned Kantner's receipt of retirement benefits.

Kantner and his witnesses attempted to establish that the original official job description was inaccurate, and that Kantner's actual duties primarily involved coordination of emergency management functions and not the direct supervision or administrative oversight of police officers. Kantner also presented evidence that he inquired of Rowan's staff before accepting the position and was assured that it was not a PFRS-eligible position.

The ALJ concluded that Kantner, as AVPPSEM, held a PFRS-covered position. But, the ALJ did so notwithstanding finding that Kantner did not directly oversee police officers. Thus, according to the ALJ's findings, Kantner did not satisfy the third factor identified in Hemsey: that Kantner "directly oversee either police officers or firefighters." See Hemsey, supra, 198 N.J. at 228.

The ALJ stated

I FIND that petitioner's job gave him supervisory oversight over campus security; campus safety and emergency medical services; the office of emergency management and parking management. I do not FIND that petitioner had supervisory authority over the university police since the university does not have police officers as a municipality has police officers.

[(Emphasis added).]

The ALJ analyzed the nature of the activities of campus police and determined they did not satisfy the definition of a "law enforcement unit."

Petitioner argues that, in order to determine whether his job of AVPPSEM fell under the above statute, it is necessary to look at the definition of policeman since petitioner must have administrative or supervisory duties over policemen. Pursuant to N.J.S.A. 43:16A-1(2)(a)(iv), a policeman may encompass an administrative or supervisory employee of a law enforcement unit or the State whose duties include, "1) supervision of, or training responsibility for, employees engaged in investigation, apprehension or detention activities; and 2) a requirement for engagement in investigation, apprehension or detention activities, if necessary; and 3) who is authorized to carry a firearm while engaged in the actual performance of his official duties; and 4) who has police powers." Law enforcement unit is defined in N.J.A.C. 17:4-1 A. 1 as any police force or organization in a municipality, county or the State, which has by statute or ordinance the responsibility of detecting crime and enforcing the criminal laws of this State. Under the same regulation, direct supervision and general supervision include conducting performance evaluations, disciplining, adjusting grievances, rewarding and assigning and directing the work of other employees. As per the testimony, petitioner does not supervise a law enforcement unit. Even under the old job description, campus police were not identified as having the responsibility for detecting crime and enforcing the criminal laws of the State. Further, petitioner testified and it was unrefuted that he was not authorized to carry a firearm as AVPPSEM. Last, "police powers" are defined as the statutory authority, under the appropriate circumstances in accordance with law, to arrest and detain and to control the actions of the public, or those individuals who come under the jurisdiction of the public employer's jurisdiction. I FIND that petitioner does not meet these criteria.

[(Emphasis added).]

Notwithstanding the ALJ's findings pertinent to Hemsey factor three, the ALJ found that Kantner held a PFRS-eligible position until December 12, 2012, when the university formally revised the organizational chart and general orders describing his duties as AVPPSEM

However, under case law, petitioner does not have to meet the criteria in order to be determined PFRS. [The Division's auditor] likened petitioner's position to that of public safety director who is not required to carry a weapon and does not have police powers yet is still required to enroll in PFRS. The Appellate Division established that those meeting the PFRS requirements set forth in N.J.S.A. 43:16A-3.1 did not have to meet those set forth in N.J.A.C. 17:4-1 A. 1 because it was a separate category of eligibility for administrators and supervisors, which would be unnecessary if petitioner had to meet the requirements of a police officer. Kossup v. Board of Trustees, Police and Firemen's Retirement System, 372 N.J. Super. 468, 475 (App. Div. 2004). The Appellate Division rejected the argument that N.J.S.A. 43:16A-3.1 applies only if the appointive or supervisory position involves police duties or the direct supervision of police because N.J.S.A. 43:16A-3.1 would be superfluous. The PFRS Board, in citing Kossup, added that N.J.S.A. 43:16A-3.1 defines an additional category of persons eligible for PFRS, that is, those who serve in appointive administrative or supervisory positions. Hemsey v. Police and Firemen's Ret. Sys., OAL Docket No. TYP 51-03, Final Decision (November 15, 2005).

The Kossup court recognized that N.J.S.A. 43:16A-3.1 gives civilian positions such as public safety director or fire director a status between civilian and law enforcement such that a PFRS member who accepts such a position within six months after leaving a regular PFRS-covered position can maintain his valuable membership in PFRS while serving in the civilian position. Kossup, 372 N.J. Super. at 476-477. Kossup also recognized that N.J.S.A. 43:16A-15.3 prevents the act of "double dipping" by requiring a PFRS member who retires and then obtains new employment in a PFRS-covered position to re-enroll in PFRS. Kossup, 372 N.J. Super. at 477-478. The statute at issue allows for a police officer or firefighter to accept an appointive administrative or supervisory position and still be eligible to contribute to the retirement system, or as in the present case, requires him to re-enroll in PFRS.

Accordingly, I CONCLUDE that petitioner accepted a PFRS eligible position within six months of his retirement as Chief of County Investigators with the Camden County Prosecutor's Office. Thus, I CONCLUDE the PFRS Board did not err in its determination that petitioner's position of AVPPSEM placed him in the PFRS pursuant to N.J.S.A. 43:16A-3.1. However, [the Division's auditor] testified that if petitioner's duties had been what they are now pursuant to the new organizational chart and general orders, petitioner would be in the ABP. I CONCLUDE that when the duties officially changed, along with the organizational chart, as of December 12, 2012, to remove any duties from petitioner other than emergency management, he should be in the ABP, rather than PFRS.

The Board adopted the ALJ's findings of fact and conclusions of law without further amplification. It "den[ied] Mr. Kantner's request to continue collecting his monthly PFRS retirement benefits while maintaining his employment with Rowan University." This appeal followed.

III.

Our review of an agency's quasi-judicial decision is limited. Hemsey, supra, 198 N.J.at 223-24. The agency decision "'will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Ibid.(quoting In re Herrmann, 192 N.J.19, 27-28 (2007)); see alsoHenry v. Rahway State Prison, 81 N.J.571, 579-80 (1980).

Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role is generally restricted to three inquiries: (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.

[Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995).]

While we accord deference to an agency's interpretation of a statute it is charged with enforcing, see In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422-23 (2008), we are not bound by an agency's interpretation of a statute. Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

IV.

The Board recognizes that the critical issue on appeal is whether it correctly determined that Kantner's employment as AVPPSEM qualified as "[s]ervice with a law enforcement unit . . . with administrative or supervisory duties over policemen or firemen," pursuant to N.J.S.A.43:16A-3.1. This implicates the first and third Hemseyfactors. There is no dispute that Kantner satisfies factor two he serves "in an appointive capacity" and factor four he served as a member of a law enforcement unit less than six months before becoming AVPPSEM. SeeHemsey, supra, 198 N.J.at 226.

As we quoted above, the ALJ found that Kantner did nothave "supervisory authority over the university police" Hemseyfactor three. The ALJ also found that the university police did notconstitute a "law enforcement unit" Hemseyfactor one. The Board's final decision adopted without amendment or modification the ALJ's decision. Nonetheless, the Board insists before us that it determined that "the position of AVPPSEM involved administrative or supervisory duties over police or fire personnel." The Board cites various documents and evidence in the record to support such a determination. However, we are constrained to conclude that the Board's adoption of the ALJ's findings in its final decision leaves no room for that determination. As the Board notes in its brief, only its "final administrative decision . . . is at issue in this appeal."

We recognize that the ALJ concluded notwithstanding its negative findings regarding factors one and three that the Board "did not err in its determination that [Kantner's] position of AVPPSEM placed him in the PFRS pursuant to N.J.S.A.43:16A-3.1." However, the ALJ's conclusion and the Board's adoption of that conclusion are based on a mistaken reading of the law.

With respect to Hemseyfactor three, the ALJ misplaced reliance on Kossup. The ALJ reasoned, "The Appellate Division rejected the argument that N.J.S.A.43:16A-3.1 applies only if the appointive or supervisory position involves police duties or the direct supervision of police because N.J.S.A.43:16A-3.1 would be superfluous." However, as noted above, Hemseyexpressly stated that to satisfy section 3.1, a person must "directly oversee either police officers or firefighters." Hemsey, supra, 198 N.J.at 228.

We are bound to follow the Court's interpretation. Moreover, requiring "direct supervision" to satisfy section 3.1 does not render section 3.1 surplusage, notwithstanding that a "policeman" is defined to include persons with administrative or supervisory responsibilities.3 An administrative or supervisory employee who qualifies as a "policeman" not only engages in the "general or direct supervision" or "training responsibility" for employees engaged in investigation, apprehension or detention activities; the employee must himself or herself be available to engage in the investigation, apprehension and detention activities, if necessary; and, the employee must be authorized to carry a firearm and exercise police powers.

Thus, those persons who may qualify under section 3.1 because, among other things, they directly oversee either police officers or firefighters, are not necessarily covered already under PFRS by N.J.S.A. 43:16A-1(2)(a). They may be ineligible under section 1(2)(a) because they lack authority to carry a firearm, to exercise police powers, or to personally engage in investigation, apprehension and detention activities, if necessary. Nonetheless, they may be eligible for PFRS if they meet the requirements of section 3.1, as delineated in the four Hemsey factors.

In sum, in light of the ALJ's findings with respect to factors one and three, there is no basis in the law for finding that Kantner was eligible for PFRS under section 3.1. Therefore, the Board erred in compelling Kantner to reenroll in PFRS and cease receiving PFRS benefits on the basis of the ALJ decision.

Reversed.

1 An exception, since repealed, applied to PFRS members holding elected public office. L. 1999, c. 96, repealed by, L. 2011, c. 78, 82.

2 In so holding, the Supreme Court apparently parted company with the Kossup panel's interpretation. The panel stated, "We disagree with Kossup's contention that section 3.1 only permits a director to belong to PFRS if the director position involves firefighting duties or the direct supervision of firefighters." Kossup, supra, 372 N.J. Super. at 474 (emphasis added). We recognize that the Court, in support of its statement that "administrators or supervisors [must] directly oversee either police officers or firefighters," cited Kossup, supra, 372 N.J. Super. at 475-76. Hemsey, supra, 198 N.J. at 228. However, the panel's statement at that point in its opinion referred not to direct oversight of officers or firefighters, but direct oversight of police or fire departments. Kossup, supra, 372 N.J. Super. at 475-76 (stating that 1989 amendments to section 3.1 were "aimed at restricting membership to those who were actually involved in police work or firefighting, N.J.S.A. 43:16A-1(2)(b), and a limited category of supervisor and administrators directly involved in overseeing police and fire departments.") (emphasis added).

3 We note that Kossup addressed a case involving a former firefighter, not a police officer. The panel held, "If such persons are also required to be engaged in firefighting duties, then section 3.1 would be surplusage. There would be no need for this provision, because supervisors and administrators such as fire chiefs, who engage in firefighting, are already covered under section 1(2)(b)." Kossup, supra, 372 N.J. Super. at 475 (citation omitted).