JOSEPH AURIEMMA v. BOARD OF TRUSTEES, PUBLIC EMPLOYMENT RETIREMENT SYSTEM

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3058-07T33058-07T3

JOSEPH AURIEMMA,

Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYMENT RETIREMENT SYSTEM,

Respondent.

__________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Rodr guez and Payne.

On appeal from a final agency decision of the Public Employee's Retirement System.

Morrison Mahoney, attorneys for appellant (Christopher Martin, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Dawn Harris, Deputy Attorney General, on the brief).

PER CURIAM

Joseph Auriemma, a former public official, who is now retired and receiving a pension, appeals from the final administrative determination by Public Employees' Retirement System Board (PERS), reducing his pension by forfeiting Auriemma's service and salary from January 1, 1992 to March 1, 2002. The forfeiture was based on Auriemma's plea of guilty to count four of a federal indictment, charging wire fraud by means of a Scheme to Defraud the Public of Money, Property and Honest Services, 18 U.S.C. 1341, 1346. We affirm.

It is undisputed that Auriemma was a public employee from January 1, 1972 until he retired on March 1, 2002. From January 1992, Auriemma worked for the Township of North Bergen in several capacities, the last one being Township Administrator. Upon Auriemma's retirement, PERS credited him with twenty-five years of service and awarded him a pension. Following Auriemma's plea of guilty, PERS reduced the pension by declaring that, as a result of his misconduct, Auriemma had forfeited his service for a period of ten years.

Auriemma appealed the PERS decision. The case was transferred to the Office of Administrative Law as a contested matter. The Administrative Law Judge issued an initial decision, finding that the partial forfeiture found by PERS should be applicable to Auriemma's service credit and salary from January 1, 1994 through February 2002. Exceptions were filed.

PERS issued its final administrative determination, adopting the findings by the ALJ but re-imposing the original sanction period, January 1, 1992 to March 1, 2002.

On appeal, Auriemma contends that: (1) the burden of proof to sustain forfeiture rests with the [PERS]; and (2) the "evidence clearly establishes that Auriemma's service time at North Bergen was honorable and, therefore, as a matter of law his pension should be reinstated in its entirety."

We reject these contentions. Our scope of review is limited. In re Taylor, 158 N.J. 644 (1999). We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. Ibid. We give "due regard" to the ability of the factfinder to judge credibility. Ibid., see also Zielenski v. Board of Review, 85 N.J. Super. 46, 54 (App. Div. 1964); and Henry v. Rahway State Prison, 81 N.J. 571, 579-81 (1980).

The seminal case in pension forfeiture matters is Uricoli v. Board of Trustees, Police & Firemen's Ret. Sys., 91 N.J. 62 (1982). In Uricoli, the Supreme Court developed a test for determining the extent to which a public employee who engaged in dishonorable service should forfeit his or her pension benefits. The Court set forth an eleven-point balancing test. This test was later codified by the Legislature in N.J.S.A. 43:1-3. Factor number (7) is "the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated."

Here, we conclude that there is ample support for PERS finding that a partial forfeiture was warranted. The Board found:

Although Mr. Auriemma had many years of honorable service his criminal activity was not an isolated incident, but rather a continuing prolonged scheme to defraud the Township of North Bergen and the citizens of the Township of North Bergen for his personal gain. Mr. Auriemma was at the top of the Township of North Bergen's public administration when he violated the public trust and a solemn oath . . . . This was not an isolated crime but rather, Auriemma's misconduct was continuous and egregious.

We affirm substantially for the reasons expressed by PERS.

Affirmed.

 

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A-3058-07T3

June 16, 2009