WAYNE BRYANT v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-5234-15T2


WAYNE BRYANT,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,

     Defendant-Respondent.
________________________________


              Argued January 10, 2018 – Decided March 15, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from the Board of Trustees of the
              Public    Employees'    Retirement    System,
              Department of Treasury, PERS No. 539916.

              Samuel J.       Halpern    argued     the   cause    for
              appellant.

              Nels J. Lauritzen, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General; Jason W. Rockwell,
              Assistant Attorney General, of counsel; Nels
              J. Lauritzen, on the brief).


PER CURIAM
     Petitioner Wayne Bryant appeals from the June 22, 2016 final

agency decision of the Board of Trustees (Board), Public Employees'

Retirement System (PERS).     The Board adopted the May 12, 2016

initial decision of an Administrative Law Judge (ALJ) affirming

the Board's decision to forfeit petitioner's entire PERS service

and salary credit, making him ineligible for retirement benefits.

We affirm.

     On January 1, 1980, petitioner enrolled in the PERS as a

Camden County Freeholder.    In January 1982, he was elected to the

State Assembly and in 1995 became a State Senator, where he served

until 2006.     From 2002 to 2006, he served as the Chair of the

Senate Budget and Appropriations Committee.    He also served as a

program support coordinator for the University of Medicine and

Dentistry of New Jersey's School of Osteopathic Medicine (UMDNJ-

SOM) from 2003 to 2006 and a part-time lecturer for Rutgers

University from 1997 to 2006.    He served as associate counsel to

the Gloucester County Board of Social Services (GCBSS) from 1996

through 2006.    He also was a partner in a private law firm during

most of this time.

     At the end of 2001, based on his highest three years' salary

in State service, he would have been eligible for an annual pension

of approximately $28,000.     Based on his service in four public

positions from 2002 to 2006, petitioner increased his pension to


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approximately $81,000.         He sought his pension at the end of

December 2006, based on his twenty-five years of pension credit.

         In November 2008, a federal jury found petitioner guilty of

six counts of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, 1346,

related to his fictitious and non-bona fide UMDNJ-SOM position

between 2003 and 2006; one count of solicitation and acceptance

of   a    corrupt   payment   or    benefit,   18   U.S.C.   §   666(a)(1)(B),

occurring between 2002 and 2006, when petitioner solicited and

received corrupt salary and pension benefits in exchange for his

influence as a public official; and five counts of mail fraud, 18

U.S.C. § 1341, related to his fictitious UMDNJ-SOM position and

misinformation regarding his GCBSS position between 2003 and 2006.

U.S. District Judge Freda Wolfson stated at sentencing that all

of petitioner's "good deeds necessarily are now overshadowed by

what's happened in the last couple of years" and "individuals have

to realize when they enter public service, that they can never

abuse the trust of the people." Petitioner was sentenced to forty-

eight months in jail as well as fines and restitution.                      The

conviction was affirmed on appeal.             United States v. Bryant, 
655 F.3d 232 (3d Cir. 2011).           Petitioner was statutorily required to

forfeit any public position, 
N.J.S.A. 2C:51-2(a)(1), (2) and -

2(b)(2), and is disqualified from holding any future government

office, 
N.J.S.A. 2C:51-2(d).


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    The Board determined that total forfeiture of his pension was

appropriate under 
N.J.S.A. 43:1-3 based on petitioner's egregious

misconduct.   After a hearing, the ALJ agreed.

    Petitioner's receipt of retirement benefits was conditioned

on rendering honorable service.      See 
N.J.S.A. 43:1-3(a).      The

Board had the exclusive authority to evaluate whether his public

service was honorable, and "order the forfeiture of all or part

of [his] earned service credit or pension or retirement benefit

. . . for misconduct occurring during [his] public service which

renders [his] service or part thereof dishonorable[.]"      
N.J.S.A.

43:1-3(b).     In   evaluating   whether   petitioner's   misconduct

warranted forfeiture, the Board and then the ALJ had to consider

and balance the following factors:

         (1) the member's length of service;
         (2) the basis for retirement;
         (3) the extent to which the member's pension
         has vested;
         (4) the duties of the particular member;
         (5) the member's public employment history and
         record covered under the retirement system;
         (6) any other public employment or service;
         (7) 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;
         (8) the relationship between the misconduct
         and the member's public duties;
         (9) the quality of moral turpitude or the
         degree of guilt or culpability, including the
         member's motives and reasons, personal gain
         and similar considerations;


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         (10) the availability and adequacy of other
         penal sanctions; and
         (11) other personal circumstances relating to
         the member which bear upon the justness of
         forfeiture.

         [
N.J.S.A. 43:1-3(c); Uricoli v. Bd. of Trs.,
         
91 N.J. 62, 77-78 (1982).]

    After a plenary testimonial hearing, the ALJ considered and

balanced the eleven factors and held that total forfeiture of

petitioner's service and salary credit was warranted, affirming

the Board's decision.   The ALJ wrote:

         The misconduct and conviction were directly
         related to the petitioner's position as a
         public official.    First, he accrued pension
         credits while serving as counsel to the GCBSS
         while associates performed the work.      This
         increased the petitioner's pension credits.
         Second, a part-time job as program support
         coordinator was created for him at the UMDNJ-
         SOM which provided pension credits to him as
         if for a full-time position. The institution
         benefited by this appointment by receiving an
         increase in financial assistance. The conduct
         was an ongoing enterprise designed to maximize
         the petitioner's final pension benefit at the
         expense of the public, either by being paid
         for work performed by others, or by having a
         part-time job listed as full-time so that more
         pension credits could be accumulated.

She also found:

         The   nature   of   petitioner's    misconduct
         demonstrates a high degree of moral turpitude.
         The petitioner's motives were solely for
         personal gain. The use of others to perform
         work while he obtained pension credits for
         that work, and the creation of a part-time
         position (where an appearance may or may not
         have been necessary) to provide additional

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             pension credits, violated the public trust.
             In addition, the petitioner did not accept
             responsibility for his conduct, contending
             that because others were doing the same thing,
             and because the GCBSS was aware of others
             performing his duties on his behalf, his
             conduct was excusable.

      The ALJ took into account the "extensive contributions made

by the petitioner to his community and his [S]tate." She commented

that his character witnesses "knew him to be a fair and honest man

who   went   out   of   his   way   to   help   others.     His   legislative

contributions were extraordinary, and the State benefited from his

dedication, particularly to welfare reform."              The ALJ considered

the aggravating factors to be "the continuing nature of the

offense; the relationship between the conduct and the effect it

would have on the pension system and the citizens of this [S]tate;

and the motivation to provide a substantial financial benefit to"

petitioner.     The ALJ cited to Corvelli v. Bd. of Trs., Police &

Firemen's Ret. Sys., 
130 N.J. 539 (1992), where a total forfeiture

of thirty years was upheld after Corvelli was sentenced to three

years of probation for administratively abusing a subordinate for

several years.

      On appeal, petitioner contends that the penalty of total

forfeiture was "wholly unwarranted" under the applicable eleven

factors, arguing that his sterling qualities and many good deeds




                                         6                           A-5234-15T2
as   demonstrated    by   his    many    character   witnesses   should    have

resulted in only a partial forfeiture.

      Our review of the Board's decision is limited.             Russo v. Bd.

of Trs., Police & Firemen's Ret. Sys., 
206 N.J. 14, 27 (2011).                 We

will not disturb the Board's decision absent "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)).          However, "because questions of law are

the province of the judicial branch . . . we are in no way bound

by [the Board's] interpretation of a statute or its determination

of a strictly legal issue[.]"           Ibid. (internal citations omitted).

      We have considered petitioner's arguments in light of the

record and applicable legal principles and conclude there is ample

credible evidence in the record as a whole supporting the ALJ's

decision, and the decision was not arbitrary, capricious, or

unreasonable.      R. 2:11-3(e)(1)(D).          We affirm substantially for

the reasons expressed in her thorough decision.              We also conclude

that petitioner's arguments to the contrary are without sufficient

merit to warrant discussion in a written opinion.                     R. 2:11-

3(e)(1)(E).

      We   are   satisfied      that    the   evidence   supported   the   ALJ's

decision that given the severe criminal nature of the lengthy

misconduct, total forfeiture of petitioner's pension was warranted


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regardless of his many good deeds.   A lesser punishment would not

sufficiently "induce people" to "continue faithful and diligent

[public] employment."   Uricoli, 
91 N.J. at 78.

    Affirmed.




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