JOHN BEKISZ 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NOT FOR PUBLICATION WITHOUT THE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

DOCKET NO. A-0

JOHN BEKISZ,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE and

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

____________________________________________

December 9, 2014

Before Judges Espinosa and St. John.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS #3-10-35907.

Mario A. Iavicoli argued the cause for appellant.

Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Chris M. Tattory, Deputy Attorney General, on the brief).

PER CURIAM

Appellant John Bekisz appeals from the final decision of the Police and Firemen's Retirement System (PFRS) Board of Trustees (Board), which denied his application to purchase three years additional service credit towards calculation of his retirement benefits. Our examination of the record satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with the relevant statutory provisions. Accordingly, we affirm.

I.

The record discloses the following facts and procedural history leading to the agency determination under review.

Bekisz began working as a temporary seasonal police officer in Wildwood from May to September in 1979 and 1980. He returned to the force in May 1981 and continued until February 1984. During this period, Bekisz was assigned responsibilities commensurate with permanent, full-time members of the force. Bekisz's supervisor in Wildwood stated it was common for seasonal officers, despite the moniker, to "work all winter long and [] continue[] to work until [the department] called for a civil service test to fill vacancies."

On February 29, 1984, Bekisz terminated his employment at Wildwood to take a position with the police department in Waterford Township. Bekisz asserts he began work at Waterford on March 1, 1984. This conflicts with the Waterford Township Committee resolution, which appointed Bekisz as an officer effective April 25. Nevertheless, Bekisz testified that the Township had originally intended to formalize his hiring at its February 1984 meeting, but was delayed, thus pushing the appointment to the April meeting. Additionally, Bekisz relies upon a certification from Joseph Palladino, the Waterford Chief of Police in 1984, and a Waterford Employment Verification Form signed on July 5, 2007 (over twenty-three years after he joined the force) by Donna Heaton, Township Coordinator, each listing Bekisz's start date as March 1.

The Board found Bekisz did not begin at Waterford until May 1, 1984.1 In addition to the April Waterford Committee resolution, the Board relied upon Bekisz's PFRS Enrollment Application from September 1984 and a June 1986 letter from Waterford's comptroller to the Division of Pensions and Benefits, both listing Bekisz's hire date as May 1. Also convincing are Bekisz's own IRS Withholding Certificate, Application for Life Insurance and Application for Health Benefits, each signed by Bekisz and indicating a May 1, 1984 start date.

2 In September 1984, Bekisz began the required training course at the Camden County Police Academy, which he completed in December. That September Bekisz also enrolled in the PFRS and purchased additional service credit for the period from May 1, 1984 to his enrollment. He retired as Waterford's Chief of Police in 2007. In conjunction with his retirement application, on July 3, 2007, Bekisz filed an application with the PFRS to purchase additional service credit for the period from May 1981 to February 1984.

On October 6, 2008, the Board denied Bekisz's application, finding the relevant period "ineligible for purchase due to the fact that it was seasonal/part time employment that did not lead [uninterrupted] to permanent or regular appointment." On November 18, 2008, Bekisz appealed the Board's denial of his application. On December 31, 2008, the matter was transmitted to the Office of Administrative Law as a contested case pursuant to N.J.S.A. 52:14B-10.

After a three-day hearing, on August 31, 2012, the Administrative Law Judge (ALJ) issued an initial decision. The ALJ recommended Bekisz be permitted to purchase additional service credit for May 1981 to February 1984 because he was a permanent officer in Wildwood and, alternatively, there was no break in service between his termination of employment in Wildwood and his start at Waterford. In support of his decision, the ALJ pointed to Bekisz's continuous thirty-three month employment with Wildwood as evidence of permanent status and the Palladino certification, which the ALJ found substantiated Bekisz's claim of the March 1 start date.

On December 10, 2012, the Board rejected the ALJ's findings and held Bekisz was not entitled to purchase the disputed time. In its January 15, 2013 written opinion, the Board concluded the ALJ's recommendation was "arbitrary and against the weight of the substantial evidence" and refused to adopt it. The Board also rejected Bekisz's proffers, finding the Employment Verification Form an unauthenticated document which the Board never saw prior to December 2011, when Bekisz's counsel presented it to the Board's witness on cross-examination. Similarly, the Board found the Palladino certification unreliable since it was submitted after the record closed and Palladino was not subject to cross-examination regarding its contents. The Board concluded Bekisz was a temporary, rather than permanent, employee with Wildwood and, also, there was a break in service between his terminating his Wildwood employment and beginning with Waterford. Consequently, the Board denied Bekisz's application to purchase additional PFRS service credit for the disputed period. This appeal ensued.

II.

An appellate court will not reverse the decision of an administrative agency unless it is "arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (citation and internal quotation marks omitted). Three factors inform this determination

(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 Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 86 (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

The reviewing court accords substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's expertise in its particular field. See Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009). The 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 (citation and internal quotation marks omitted).

III.

With those principles in mind, we turn to Bekisz's arguments on appeal.

A. The Board failed to follow the law by disregarding the ALJ's decision

Bekisz argues the Board violated N.J.S.A. 52:14B-10(c), which governs agency review of ALJ decisions, when it disregarded the ALJ's recommendation that he be permitted to purchase the additional PFRS time. See Proposed Quest Acad., supra, 216 N.J. at 385 86. Bekisz submits that where "sufficient competent and credible evidence" supports an ALJ's findings, the Board is bound to adopt those findings upon its review.

Bekisz misapprehends the statute, which provides in pertinent part

In reviewing the decision of an [ALJ], the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so . . . In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent and credible evidence in the record.

[N.J.S.A. 52:14B-10(c) (emphasis added).]

In its written decision the Board properly applied N.J.S.A. 52:14B-10(c). First, the question of Bekisz's purportedly permanent employment at Wildwood was a legal determination. In rejecting the ALJ's conclusion, the Board pointed to his misapplication of the law and failure to apply the Supreme Court's decision in Belmar Policemen's Benevolent Association v. Belmar, 89 N.J. 255 (1982). Further, in rejecting the ALJ's factual finding as to the disputed break in service, the Board stated with particularity its reasons for doing so, unambiguously finding it "arbitrary and against the weight of the evidence." To support this conclusion, the Board relied on the substantial documentary evidence indicating May 1 as Bekisz's start date, as well as the ALJ's improper reliance on the Palladino certification.

Therefore, the Board's review of the ALJ's recommended decision comported with N.J.S.A. 52:14B-10(c). See ZRB, LLC v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super. 531, 562 (App. Div. 2008).

B. Bekisz was a permanent employee in Wildwood

Bekisz next contends the Board erred in holding his Wildwood service from May 1981 to February 1984 ineligible for additional service credit purchase arguing he was a permanent employee during that time. Bekisz maintains he could not legally have been a temporary officer because his Wildwood service was nearly three years in duration and not within N.J.S.A. 40A:14's four exceptions for temporary officers. Additionally, Bekisz contends the Board's decision to deny him full benefits is contradicted by our holding in Harris v. Bd. of Trs., 378 N.J. Super. 459 (App. Div. 2005). There we stated, considering their remedial character, public pension systems "'should be liberally construed and administered in favor of the persons intended to be benefited thereby.'" Id. at 465 (quoting Steinmann v. State, Dep't of Treasury, 116 N.J. 564, 572 (1989)).

Under certain circumstances officers are permitted to "purchase prior service credit" in the PFRS for pre-enrollment time and apply the credit towards calculation of years served. See N.J.S.A. 43:16A-3.2. However

Only service as a policeman . . . which was rendered by a member since that member's enrollment, or since that member's last enrollment in case of a break of service, plus service, if any, covered by a prior service liability, shall be considered as creditable service for the purposes of this Act.

[N.J.S.A. 43:16A-4.]

Full-time police officers are required to enroll in the PFRS as a condition of employment. See N.J.S.A. 43:16A-3. A "Policeman" is defined as

a. permanent, full-time employee of a law enforcement unit . . . whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State and who

(i) is authorized to carry a firearm while engaged in the actual performance of his official duties;

(ii) has police powers;

(iii) is required to complete successfully the training requirements prescribed by [52:17B-68] or comparable training requirements as determined by the board of trustees; and

(iv) is subject to the physical and mental fitness requirements.

[N.J.S.A. 43:16A-1(2)(a) (emphasis added).]

The hurdle for Bekisz is the definition of police officer, which requires successful completion of training at the academy or comparable training requirements as determined by the Board. See id. By his own admission, Bekisz did not complete the training course at the Camden County Police Academy until December 1984. In fact, he did not even begin the course until September, well after he had left Wildwood. Further, Bekisz acknowledged that "until [officers] were hired off the civil service list," and, therefore, no longer temporary seasonal employees, there was no training requirement.

Unlike in Waterford, Bekisz was never appointed to permanent service in Wildwood. Similarly, his Employment Verification Form listed an hourly wage, whereas Bekisz's then-supervisor, a permanent officer, listed a yearly salary on a similar form. Taken together with his failure to complete training while at Wildwood, these facts constitute sufficient competent and credible evidence to form the factual underpinning of the Board's finding.

Bekisz nevertheless argues his length of Wildwood service, two years and nine months from May 1981 to February 1984, requires the Board to recognize this service as permanent. He submits that to do otherwise would be illegal, arguing his Wildwood service did not fall within one of the four statutorily-recognized allowances for hiring temporary officers: (1) as temporary employees in emergencies; (2) for certain parts of the year; (3) to replace another officer granted a leave of absence relating to military service or (4) to replace an officer granted a leave of absence as provided by any other law. See N.J.S.A. 40A:14-122; id. -144 45.

The Board did not assert that any of the four categories applied, but nevertheless dismissed Bekisz's temporally-based argument as unfounded. The Board determined the decision in Belmar PBA, supra, governs. There the Court held "special" police officers may "properly work full-time, part time, or on a continuous basis" and be afforded responsibilities commensurate with permanent officers, yet not be considered "members of the police force" for PFRS purposes. Belmar PBA, supra, 89 N.J. at 261, 269 70. In providing a limitation on municipalities' ability to employ such impermanent officers, however, the Court emphasized "special police may not be employed on a full time annual basis as a subterfuge to avoid hiring regular police." Id. at 270.

We agree with the Board that Belmar PBA is controlling since the unifying characteristic between "special" and "temporary" officers is their decidedly impermanent status. Bekisz offers no evidence suggesting that Wildwood was engaged in any attempt at subterfuge. See ibid. Therefore, we disagree with his argument that the length of his Wildwood service alone should be dispositive regarding permanent status.

Furthermore, although it is well settled that pension laws "should be liberally construed and administered in favor of the persons intended to be benefitted thereby," Harris, supra, 378 N.J. Super. at 465 (citation and internal quotation marks omitted), in order to protect the fiscal integrity of the system, eligibility in pension funds is not liberally construed. Francois v. Bd. of Trs., 415 N.J. Super. 335, 349 50 (App. Div. 2010). We conclude Harris is distinguishable, see Harris, supra, 378 N.J. Super. at 461 (noting that employee was at all relevant times already enrolled in the pension system), and Bekisz's reliance thereon is misplaced.

Here, the Board "tried to follow the law and there is sufficient evidence in the record to sustain [its] conclusion." See Mazza, supra, 143 N.J. at 25. Therefore, we cannot conclude the Board's "application of the facts to the law is so unreasonable as to constitute an arbitrary and capricious abuse of discretion." Ibid. Upon review of the record and relevant precedent we conclude the Board properly held Bekisz was not a permanent employee in Wildwood.

C. There was no interruption between Bekisz's service in Wildwood and Waterford

Bekisz argues, alternatively, that even if he was not a permanent officer in Wildwood, the disputed time is still eligible for purchase because there was no interruption between the termination of his Wildwood employment and his start in Waterford. He challenges the Board's factual finding that his employment at Waterford did not begin until May 1, 1984. We determine this alternative argument is similarly without merit.

The PFRS provides, where the relevant service is temporary, an officer may nevertheless "purchase credit for [that] temporary service . . . if that temporary service shall have resulted, without interruption, in a valid permanent . . . appointment." N.J.S.A. 43:16A-4.

The documentary evidence, including Bekisz's own IRS Withholding Certificate, Life Insurance Application and Health Benefits Application, provided "substantial credible evidence in the record as a whole" for the Board's finding that Bekisz's Waterford employment began May 1 as opposed to March 1. See Stallworth, supra, 208 N.J. at 194.

We find Bekisz's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

For the foregoing reasons, we conclude the Board's final decision to deny Bekisz's application to purchase additional service credit in the PFRS was properly premised on facts in the record, correctly applied the relevant statutory provisions, and was not arbitrary, capricious or unreasonable.

Affirmed.

1 Although there is a discrepancy among the documents regarding whether the date was April 25 or May 1, because the dates are functionally the same for determining Bekisz's right to purchase additional service credit, we refer to the Board's finding of the start date as May 1.