LOUIS VECCHIA 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NOT FOR PUBLICATION WITHOUT THE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

LOUIS VECCHIA, A-5636-03T5

Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent.

_________________________________

DONALD AURNHAMMER, A-5639-03T5

Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent.

 
________________________________________

Submitted February 8, 2006 - Decided February 27, 2006

Before Judges Conley and Weissbard.

On appeal from the Board of Trustees, Police & Firemen's Retirement System.

Fox and Fox, LLP, attorneys for appellants (Craig S. Gumpel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susanne Culliton, Deputy Attorney General, on the briefs).

PER CURIAM

These appeals, which we have consolidated for the purpose of our opinion, come back to us after our prior remand to the Board of Trustees, Police and Firemen's Retirement System (Board). Vecchia v. Bd. of Trs., Police & Firemen's Ret. Sys., A-3875-02T5 (decided February 27, 2004); Aurnhammer v. Bd. of Trs., Police & Firemen's Ret. Sys., A-3870-02T5 (decided February 27, 2004). In the prior appeals, appellants, former volunteer firefighters who later became paid firefighters and were enrolled in the Public Employees' Retirement System, appealed the Board's denial of their request to be enrolled in the PFRS because they did not meet the age requirement of N.J.S.A. 43:16A-3(1). In our prior opinions, we recognized that the Board's denials were fully consistent with the statutory criteria for admission into the PFRS. But we pointed out: "[T]he Board . . . concedes that it has waived the statutory age requirement for certain enrollees on an equitable estoppel type rationale." To us, appellants seemed to have made out at least a prima facie case for an equitable waiver. We, thus, remanded to the Board for it to "apply its 'case-by-case' approach to [their] individual circumstances."

By Final Administrative Determinations dated May 11, 2004, the Board engaged in that analysis and concluded appellants' circumstances were not comparable to those for whom the age requirement had been waived. Appellants again appeal, contending the Board did not properly apply the "case-by-case" analysis to their individual circumstances and that it relied upon "undisclosed evidence." They contend:

POINT I: THE FINAL ADMINISTRATIVE DETERMINATION OF THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM FAILED AND/OR REFUSED TO EXERCISE ITS AUTHORITY TO WAIVE THE AGE REQUIREMENT AND ENROLL [APPELLANTS] IN THE POLICE AND FIREMEN'S RETIREMENT SYSTEM.

POINT II: THE FINAL ADMINISTRATIVE DETERMINATION OF THE BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE BOARD RELIED ON EVIDENCE WHICH WAS NOT DISCLOSED TO [APPELLANTS] AND [APPELLANTS] [WERE] NEVER GIVEN AN OPPORTUNITY TO REBUT THE UNDISCLOSED EVIDENCE.

We have carefully considered these contentions. Although we do not accept the contention in point I, we are troubled by the contention in point II that appellants were not aware of the evidence relied upon by the Board in comparing their individual circumstances to others for whom the age limit had been waived. Before us, they have moved to supplement the record with voluminous materials they claim relate to the "undisclosed evidence" and demonstrates that their circumstances are similar. It seems that some of the material involves individuals who were not considered by the Board in its comparative analysis. Finally, we are troubled by the failure of the Board to respond to appellant's point II.

Although reluctant to yet again return this to the Board, we are convinced the proper course is to grant appellants' motion to supplement and remand the matters to the Board to afford appellants an opportunity to submit their evidence, along with written argument detailing precisely how their individual circumstances compare to others for whom the age limit was waived. We leave it to the Board to determine an appropriate scheduling for the submission of the additional materials and for its consideration of it and, yet again, another final determination. We express no view as what the outcome should be and we do not retain jurisdiction.

Remanded for further consideration consistent with this opinion.

 

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4

A-5639-03T5

February 27, 2006