RONALDSALAHUDDIN v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5588-15T2

RONALD SALAHUDDIN,

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________

              Argued January 17, 2018 – Decided March 1, 2018

              Before Judges Hoffman and Gilson.

              On appeal from the Board of Trustees, Public
              Employees' Retirement System, PERS No. 420993.

              Thomas R. Ashley argued the cause for
              appellant (Law Offices of Thomas R. Ashley,
              attorneys; Thomas R. Ashley, on the brief).

              Jeff S. Ignatowitz, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Jeff S. Ignatowitz, on the brief).

PER CURIAM

        Petitioner, Ronald Salahuddin, appeals from a July 21, 2016

final agency decision of the Board of Trustees, Public Employees'
Retirement System (Board), which reduced his pension benefits by

twenty percent due to his dishonorable public service.             We affirm

because the Board's decision was authorized by the governing

statute and was not arbitrary, capricious, or unreasonable.

                                      I.

     Petitioner was a New Jersey public employee from March 1,

1976 to July 24, 2009.       He began his employment as an assistant

municipal tax collector for the City of East Orange.              In January

1998, he transferred to the Essex County Sheriff's Office and held

the title of Investigator.         On July 1, 2006, petitioner became a

deputy mayor in Newark.      He resigned effective July 24, 2009.             In

June 2010, petitioner filed with the Board a service retirement

application effective July 1, 2010.

     In 2010, petitioner was indicted on federal charges arising

out of activities he engaged in as deputy mayor.                 Following a

trial in 2011, a jury convicted him of conspiracy to obstruct

commerce by extortion under color of official right in violation

of 18 U.S.C. § 1951 (the Hobbs Act).          Petitioner was sentenced to

one year and one day in federal prison and two years of supervised

release.    He was also fined $5000.

     In    January   2014,   the    State    of   New   Jersey   initiated     a

proceeding   against   petitioner      for    forfeiture    of   the   pension

benefits he earned while serving as deputy mayor and to permanently

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disqualify him from public office, as required under 
N.J.S.A.

43:1-3.1.      That forfeiture action was resolved by a consent order

entered in March 2014.         Under the consent order, petitioner

forfeited all pension and retirement benefits for the period of

time he was deputy mayor from 2006 to 2009. Petitioner also agreed

that he would never again be allowed to hold public office in New

Jersey.

     In April 2014, the Board considered petitioner's application

for retirement and the impact of the criminal charges against him.

The Board determined that in addition to losing his pension for

the period of time that he was deputy mayor, petitioner's pension

should    be   further   reduced   because   of     the    severity    of   his

misconduct.        Accordingly,    the    Board     reduced       petitioner's

retirement benefits by approximately thirty-four percent, which

included the period of time that he was deputy mayor.

     Petitioner     administratively     appealed    and    the    matter   was

transferred to the Office of Administrative Law.                  Following a

hearing, an administrative law judge (ALJ) issued an initial

decision affirming the Board's decision to reduce petitioner's

pension benefits.     The ALJ evaluated and weighed the factors under


N.J.S.A. 43:1-3(c), which codified factors previously identified

by our Supreme Court in Uricoli v. Bd. of Trs., Police & Firemen's

Ret. Sys., 
91 N.J. 62, 77 (1982).        The ALJ found that the nature

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of the misconduct, the relationship between the misconduct and

petitioner's   public   duties,   and        the   moral   turpitude   weighed

heavily against petitioner.      The ALJ also found that certain other

factors, including that petitioner had no previous misconduct and

had engaged in charitable volunteer activities, weighed in his

favor. Balancing those factors, the ALJ determined that petitioner

should forfeit twenty percent of his pension benefits.             The twenty

percent forfeiture included the years of service that petitioner

previously consented to forfeit.

       Thereafter, in a final decision dated July 21, 2016, the

Board adopted the ALJ's decision.           Accordingly, the Board ordered

that     petitioner's     retirement         benefits      be    recalculated

retroactively to his effective date of retirement, July 1, 2010.

As petitioner had accrued thirty-three years and five months in

public   employment,    the   twenty       percent   reduction   amounted     to

approximately 6.7 years of petitioner's service credits, which

included the three years while he was deputy mayor.

                                   II.

       On this appeal, petitioner makes four arguments.            First, he

contends that the consent order estopped the Board from imposing

a pension forfeiture greater than that contained in the consent

order.    Second, he argues that his federal conviction did not

"involve or touch" upon his pre-2006 employment and, therefore,

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should not have been used as a basis to reduce his pension benefits

for that period of time.        Third, he argues that the Board did not

properly balance the factors under Uricoli and 
N.J.S.A. 43:1-3(c).

Finally, he contends that he was "factually innocent" of violating

the Hobbs Act.        We find no merit in any of these arguments and

affirm.    We will begin our analysis with an overview of the law

governing forfeiture of public pension benefits and then we address

petitioner's individual arguments.

      1.   Pension Forfeiture

      Pension forfeiture is governed by statute.             
N.J.S.A. 43:1-3.

The   receipt   of     a   public    pension    or   retirement    benefit      is

conditioned upon the rendering of honorable service.                    
N.J.S.A.

43:1-3(a).      The    board   of    trustees   of   any   state   or   locally-

administered pension fund or retirement system can order the

forfeiture of all or part of the earned service credit or pension

or retirement benefits of any member for misconduct occurring

during the member's public service, which renders that service

dishonorable.    
N.J.S.A. 43:1-3(b).         The statute identifies eleven

factors the Board must consider and balance in evaluating a

member's misconduct to determine whether it renders the member's

service    dishonorable,       and    whether   full   or    partial     pension

forfeiture is appropriate.           
N.J.S.A. 43:1-3(c)(1) to (11).        Those



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subsections codified the factors identified by our Supreme Court

in Uricoli.      
91 N.J. at 77.

      The forfeiture statute also mandates that a public employee

who is convicted of a certain type of crime that "involves or

touches [his or her] office, position or employment," must "forfeit

all of the pension or retirement benefit earned as a member of

. . . [the] retirement system in which he [or she] participated

at the time of the commission of the offense and which covered the

office, position or employment involved in the offense."               
N.J.S.A.

43:1-3.1(a).      A crime or offense that "involves or touches such

office, position or employment" means that the crime or offense

was   directly    related    to   the    employee's      performance    of,    or

circumstances      flowing   from,      the   specific    public   office      or

employment held by the person. Ibid. The convictions that trigger

the mandatory forfeiture under 
N.J.S.A. 43:1-3.1 include certain

indictable crimes in the State of New Jersey or "substantially

similar offense[s] under the laws of another state or the United

States which would have been such a crime [in New Jersey.]"                Ibid.

      Nothing    in   
N.J.S.A.    43:1-3.1     precludes     the   Board    from

ordering the forfeiture of all or part of the earned service

credits, or pension or retirement benefits, of any member of the

system   for    misconduct   occurring        during   the   member's    public

service.   In that regard, the statute states:

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             Nothing in this section shall be deemed to
             preclude the authority of the board of
             trustees of any State or locally-administered
             pension fund or retirement system created
             under the laws of this State from ordering the
             forfeiture of all or part of the earned
             service credit or pension or retirement
             benefit of any member of the fund or system
             for misconduct occurring during the member's
             public service pursuant to the provisions of
             [N.J.S.A. 43:1-3], including in a case where
             the court does not enter an order of
             forfeiture pursuant to this section.

             [N.J.S.A. 43:1-3.1(e).]

Accordingly, the Board is permitted to seek pension forfeiture

under 
N.J.S.A. 43:1-3, in addition to the pension forfeiture

mandated by 
N.J.S.A. 43:1-3.1.

     2. The Board's Decision

     Here, petitioner was convicted of the federal offense of

conspiracy    to     obstruct     commerce   by   extortion    under    color    of

official right.       It is undisputable that petitioner's conviction

is substantially similar to the New Jersey substantive offense of

theft   by   extortion,     
N.J.S.A.     2C:20-5(b).          That    offense    is

enumerated in 
N.J.S.A. 43:1-3.1(b).               Consequently, petitioner's

pension benefits that accrued while he was serving as deputy mayor

were statutorily mandated to be forfeited.

     The     Board    had   the    discretion,     moreover,     to    impose    an

additional forfeiture under 
N.J.S.A. 43:1-3.             In that regard, the

Board determined that the forfeiture under 
N.J.S.A. 43:1-3.1 was

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insufficient given the severity of petitioner's misconduct.                         We

hold that the Board acted within its statutory authority.

       3.   Petitioner's Arguments

       Petitioner    first    contends       that   the    Board    is    judicially

estopped from seeking further pension forfeiture because of the

consent order.      As this is an issue of law, we review it de novo.

Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 
206 N.J. 14,

27 (2011) (citing Toll Bros., Inc. v. Twp. of W. Windsor, 
173 N.J.
 502, 549 (2002)).

       The doctrine of judicial estoppel provides that a party who

has assumed a particular position in judicial proceedings, and has

succeeded in maintaining that position, is estopped from taking

an inconsistent position in a subsequent proceeding.                      Chattin v.

Cape May Greene, Inc., 
243 N.J. Super. 590, 620 (App. Div. 1990),

aff’d, 
124 N.J. 520 (1991).            The doctrine of judicial estoppel

does not apply when the first proceeding has been resolved by way

of a settlement.       See Kimball Int'l, Inc. v. Northfield Metal

Prods., 
334 N.J. Super. 596, 607 (App. Div. 2000) (noting that

"[a]    settlement    neither     requires      nor       implies   any     judicial

endorsement of either party's claims or theories, and thus a

settlement   does    not     provide   the     prior      success   necessary     for

judicial estoppel.").



                                         8                                   A-5588-15T2
      Here,    judicial   estoppel   does    not   apply   for   two   primary

reasons.      First, there is nothing in the consent order that is

inconsistent with the position taken by the Board.                The consent

order applied to the time that petitioner served as deputy mayor.

The consent order does not state that it is an entire resolution

of   all   issues   related   to   petitioner's    pension,      nor   does    it

expressly preclude a further reduction of petitioner's pension.

Second, the Board's decision to impose further pension forfeiture

is consistent with its authority under 
N.J.S.A. 43:1-3, and is not

inconsistent with the mandatory forfeiture imposed under 
N.J.S.A.

43:1-3.1, which is what the consent order addressed.

      Next, petitioner contends that it was improper for the Board

to impose forfeiture of pension benefits that accrued prior to his

tenure as deputy mayor of Newark.           Our review of this portion of

the Board's decision is limited.          Clowes v. Terminix Int'l, Inc.,


109 N.J. 575, 587 (1988).          We will only reverse a final agency

decision if it is "arbitrary, capricious or unreasonable or it is

not supported by substantial credible evidence . . . ."                Henry v.

Rahway State Prison, 
81 N.J. 571, 579-80 (1980).

      As we have already discussed, 
N.J.S.A. 43:1-3 left the Board

with the discretion to "order the forfeiture of all or part of the

earned service credits or pension or retirement benefit of any

member of the fund or system for misconduct occurring during the

                                      9                                 A-5588-15T2
member's public service which renders the member's service or part

thereof dishonorable . . . ."       
N.J.S.A. 43:1-3(b).      The Board has

implemented rules, which provide that in imposing a forfeiture it

may do so by "a percentage of the retirement benefit based on the

calculation of the percentage of time which was dishonorable

service as compared to the total years and months of service

credit."   N.J.A.C. 17:1-6.1(c)(7).

     Here, the ALJ concluded, and the Board agreed, that given the

nature of petitioner's misconduct, his pension service credit of

thirty-three years and five months should be reduced by a total

of twenty percent, or 6.7 years of service credit.             That method

of calculating petitioner's pension forfeiture was consistent with

and authorized by 
N.J.S.A. 43:1-3 and its implementing regulations

under N.J.A.C. 17:1-6.1(c)(7).

     Third,   petitioner   argues    that     the   Board   misapplied   the

Uricoli factors and, in particular, he contends that his misconduct

was not directly related to his office and his misconduct did not

involve moral turpitude.    Again, our review is limited and, here,

we find no grounds for reversal.         The ALJ identified the governing

factors in 
N.J.S.A. 43:1-3(c). The ALJ then evaluated and balanced

those factors.   The ALJ's analysis and balancing of the factors

were supported by substantial credible evidence in the record.

The Board then adopted the ALJ's findings.           Accordingly, we find

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nothing arbitrary, capricious, or unreasonable in the Board's

determination.

     Finally, petitioner contends that he is factually innocent

of having violated the Hobbs Act and that imposing a forfeiture

is a miscarriage of justice.   This argument was not raised before

the ALJ or the Board.    Consequently, we decline to address the

argument. See Zaman v. Felton, 
219 N.J. 199, 226-27 (2014) (citing

State v. Robinson, 
200 N.J. 1, 20 (2009)) ("[O]ur appellate courts

will decline to consider questions or issues not properly presented

to the trial court [or administrative agency] . . . unless the

questions so raised on appeal go to the jurisdiction of the trial

court [or agency] or concern matters of great public interest.").

Here, petitioner's argument does not go to any jurisdictional

issue, nor does it concern a matter of great public interest.

     Affirmed.




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