IN THE MATTER OF JOHN E. WEST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6738-04T26738-04T2

IN THE MATTER OF

JOHN E. WEST

________________________________________________________________

 

Argued May 9, 2007 - Decided May 31, 2007

Before Judges Lefelt and Parrillo.

On appeal from a Final Decision of the

Board of Trustees, Police And Firemen's

Retirement System, Docket No. PFRS-81869.

Joseph A. Carmen argued the cause for

appellant.

Kellie L. Kiefer Pushko, Deputy Attorney

General, argued the cause for respondent

(Stuart Rabner, Attorney General, attorney;

Patrick DeAlmeida, Assistant Attorney

General, of counsel; Ms. Pushko, on the

brief).

PER CURIAM

In 1997, when petitioner John West was fifty years of age, the Juvenile Justice Commission hired him as a corrections officer and enrolled him in the Police and Firemen's Retirement System (PFRS). At that time, due to changes in the Federal Age Discrimination in Employment Act, 29 U.S.C.A. 623, the State ceased enforcing N.J.S.A. 40A:14-127, which prohibits the hiring of law enforcement officers who are "under 21 or over 35 years of age," and N.J.S.A. 43:16A-3, which precludes enrollment in PFRS for persons over thirty-five years of age. Approximately one year later, the State resumed enforcing the statutory maximum hiring restrictions along with the mandatory retirement requirement, which had also been suspended for a brief period. Therefore, as a corrections officer in PFRS, West became subject to mandatory retirement at age sixty-five and, according to him, would have insufficient time in service upon retirement to earn a full pension. In 2005, about eight years after he was hired and enrolled in PFRS, petitioner sought to transfer to the Public Employees' Retirement System (PERS), where there is no mandatory retirement age. He appeals from the PFRS Board of Trustees decision denying the transfer.

On appeal, West argues that the decision denying his "request for transfer to [PERS] [w]as an error of law and illegal." We disagree.

We note that N.J.S.A. 43:16A-5, requiring PFRS members to retire at age sixty-five, contains an exception permitting members to remain in "the system until the member attains age 68 years or 25 years of creditable service, whichever comes first." That exception, however, pertains only to members "hired prior to January 1, 1987." Ibid. Thus, the exception could not be applied to West.

As a corrections officer, West was included in the group of individuals who must be enrolled in the PFRS as a condition of employment. N.J.S.A. 43:16A-1.2; N.J.S.A. 43:16A-3; N.J.S.A. 43:16A-62. West concedes this point. However, once enrolled in PFRS, the employee "is ineligible for membership in any other State-administered or county or municipal retirement system." N.J.S.A. 43:16A-1.2(b). The only law enforcement officers who are in PERS are those who are ineligible for membership in PFRS. N.J.S.A. 43:15A-97. Thus, to be transferred to PERS, West must give up his job as a corrections officer and obtain a position that permits membership in PERS.

It is not arbitrary, capricious, or unreasonable for any administrative agency to enforce a statute as written. See Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Therefore, West's remedy is with the Legislature not the courts.

Affirmed.

 

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A-6738-04T2

May 31, 2007