JAMES MCLEAN v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S 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NOT FOR PUBLICATION WITHOUT THE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-5313-17T3

JAMES MCLEAN,

         Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

     Respondent-Respondent.
______________________________

                   Argued October 17, 2019 – Decided October 25, 2019

                   Before Judges Haas and Enright.

                   On appeal from the Board of Trustees of the Police and
                   Firemen's Retirement System, Department of the
                   Treasury, PFRS No. 3-10-053180.

                   Samuel Michael Gaylord argued the cause for appellant
                   (Gaylord Popp, LLC, attorneys; Samuel Michael
                   Gaylord, on the brief).

                   Amy Chung, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Robert S. Garrison, Jr.,
            Deputy Attorney General, on the brief).

PER CURIAM

      Petitioner James McLean appeals from a June 12, 2018 final agency

decision of respondent Board of Trustees (Board) of the Police and Fireman's

Retirement System (PFRS). The Board adopted, with minor modifications, the

decision of an Administrative Law Judge (ALJ) affirming the Board's decision

to invoke a four percent forfeiture of McLean's special retirement benefit. We

affirm.

      We begin our review with a discussion of the governing legal principles

to give context to the Board's decision, recognizing "[o]ur review of

administrative agency action is limited."     Russo v. Bd. of Trs., Police &

Firemen's Ret. Sys.,  206 N.J. 14, 27 (2011). Reviewing courts presume the

validity of the "administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State,  219 N.J. 163, 171 (2014). For those reasons,

we will not overturn an agency decision "unless there is a clear showing that it

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Stein v. Dep't of Law & Pub. Safety,  458 N.J. Super. 91, 99 (App. Div.

2019) (quoting J.B. v. N.J. State Parole Bd.,  229 N.J. 21, 43 (2017)). Nor will

we overturn an agency decision merely because we would have come to a

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different conclusion. In re Stallworth,  208 N.J. 182, 194 (2011). We are not,

however, bound by the "agency's interpretation of a statute or its det ermination

of a strictly legal issue." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys.,  192 N.J. 189, 196 (2007).

      A public employee must provide "honorable service" to receive pension

or retirement benefits.  N.J.S.A. 43:1-3(a); N.J.A.C. 17:1-6.1(a); see Corvelli v.

Bd. of Trs., Police & Firemen's Ret. Sys.,  130 N.J. 539, 550 (1992) (noting all

of New Jersey's public pension statutes have an implied requirement of

honorable service, and forfeiture can be ordered for employees who violate t hat

requirement). The Board is authorized to order forfeiture, in whole or in part,

"for misconduct occurring during the member's public service which renders the

member's service or part thereof dishonorable."  N.J.S.A. 43:1-3(b); N.J.A.C.

17:1-6.1(a), (c). Ordinarily, to require forfeiture of the portion of a member's

pension that accrued prior to the criminal activity, the Board must find that the

misconduct was related to the member's service. Masse v. Bd. of Trs., Pub.

Emps.' Ret. Sys.,  87 N.J. 252, 263 (1981). Nevertheless, forfeiture is not limited

to misconduct resulting in a criminal conviction. Corvelli,  130 N.J. at 552.

Rather, "[t]he term 'honorable service' . . . is sufficiently generic to encompass




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a broad range of misconduct bearing on the forfeiture decision, including but

not limited to criminal conviction." Ibid.

      Forfeiture of a public employee's pension is governed by the factors

enumerated by our Supreme Court in Uricoli v. Police & Firemen's Retirement

System,  91 N.J. 62, 77-78 (1982), and codified in N.J.S.A. 43:1-3(c):

             (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; (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.

      Of particular relevance here, the Board may attribute more weight to

factors (7), (8), and (9), when applicable. See Corvelli,  130 N.J. at 552-53

(holding total pension forfeiture "was justified by . . . application of Uricoli

factors [(7), (8), and (9)]").

      Applying those legal standards to the present case, we turn to the pertinent

legal facts and procedural history, which are largely undisputed. McLean was

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hired by the New Jersey Department of Corrections (DOC) as a corrections

officer on April 22, 1989. On November 20, 2013, McLean was playing pool at

the Perth Amboy Moose Lodge, while wearing an old set of DOC uniform pants.

There, he and another patron, whom McLean had known for forty years, engaged

in a verbal altercation. During their heated exchange, McLean pushed this

patron. This individual then responded by coming toward McLean with a raised

bar stool, so McLean punched him in the face with a closed fist, fracturing his

orbital bone. Police arrived at the lodge in response to the incident, and when

they approached McLean, he did not identify himself as a corrections officer.

Police reports later identified McLean as the aggressor in the altercation and

referred to video surveillance of the altercation.

        The next day, McLean was informed by his supervising officer that the

Perth Amboy Police Department had issued a warrant for his arrest. McLean

turned himself in to the police department and was charged with one count of

aggravated assault in the second degree,  N.J.S.A. 2C:12-1(b)(1).       He was

charged administratively and, on November 25, 2013, he was suspended without

pay. McLean's pension contributions were remitted through November 30,

2013.




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      On August 6, 2014, McLean was permitted enrollment into the Pre-Trial

Intervention Program (PTI). As a condition of PTI, McLean entered into a

consent judgment in which he agreed to forfeit his employment with the DOC

and any future position or employment in law enforcement in New Jersey. As

such, his employment with the DOC terminated on August 6, 2014.

      McLean filed an application for special retirement on August 25, 2014, at

which time he had twenty-five years of PFRS service credit. In 2015, the Board

agreed to postpone action on McLean's request for special retirement. Also, in

2015, McLean's criminal charges were dismissed as a result of his successful

completion of PTI. Then, in October 2016, McLean appeared before the Board,

requesting that he be allowed to receive his honorable service pension.

      The Board reviewed the administrative charges filed against McLean and

determined his last year of public service had been dishonorable. It emphasized

that McLean's misconduct demonstrated a high degree of moral turpitude and

concluded there was a direct relationship between his charges and his duties as

a senior corrections officer. Based on this, the Board invoked a four percent

reduction in McLean's special retirement benefit. The Board's rationale for the

four percent reduction was that McLean had one dishonorable year of his




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twenty-five years of service and the incident occurred during McLean's final

year of service.

      In reaching its decision, the Board considered and balanced the Uricoli

factors. The Board noted that although McLean was off-duty at the time of the

assault in 2013, he was in uniform. McLean appealed, and the matter was

transferred to the Office of Administrative Law for a hearing to determine

whether the four percent forfeiture was justified. The ALJ affirmed the partial

forfeiture decision of the Board on April 12, 2018.       In doing so, the ALJ

reviewed each of the Uricoli factors. The ALJ concluded factors (1), (5), (8),

(9), and (10) weighed in favor of McLean, whereas factors (2), (3), (4), (6), and

(11) had no positive or negative impact, and factor (7), the gravity or

substantiality of the offense, weighed heavily against McLean.

       Essentially, the ALJ did not agree with the Board's determination that

McLean's behavior demonstrated a high degree of moral turpitude or that there

was a strong relationship between the misconduct and McLean's employment.

Rather, the ALJ found that McLean's misconduct resulted in bodily harm to

another individual and "the seriousness of the misconduct weigh[ed] heavily

against [McLean]." Consistent with Corvelli,  130 N.J. at 552, the ALJ reasoned

that even though McLean's misconduct arose from a single offense that did not


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result in a criminal conviction because of McLean's successful completion of

PTI, McLean still bore responsibility for his underlying actions.

      The matter was returned to the Board in 2018, whereupon the Board

adopted the ALJ's decision, modifying it only to reverse the ALJ's exclusion of

surveillance video from the incident. McLean appeals from the Board's June 12,

2018 decision.

      On appeal, McLean argues the ALJ erred by finding the seriousness of

McLean's misconduct weighed against him. He insists the ALJ misinterpreted

the Board's initial decision and that the ALJ misinterpreted the law. In support

of his proposition that the four percent forfeiture is "well beyond reasonable and

is a clear abuse of the Board's discretion," McLean references his nearly twenty-

five years of honorable service, claiming he had "no prior discipline charges for

fighting or any other altercation."     McLean cites to Masse,  87 N.J. 252;

Procaccino v. State, Dep't of Treasury,  87 N.J. 265 (1981); and T.J.M. v. Bd. of

Trs. of PFRS,  218 N.J. Super. 274 (App. Div. 1987) in support of his arguments.

These cases are distinguishable, however, as they involve complete pension

forfeitures. See T.J.M.,  218 N.J. Super. at 284 (reversed and remanded for

further findings as to what portion of the employee's pension may be withheld);

cf. Masse,  87 N.J. at 253 (involving a total forfeiture from the employee's first


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day of employment until the date of the incident, but permitting allowance of

service thereafter).

      Having reviewed this matter, we are convinced there is sufficient credible

evidence in the record to support the Board's evaluation of the statutory factors

and its decision that a four percent forfeiture of McLean's special retirement

benefit was warranted under the circumstances. See J.B.,  229 N.J. at 43. The

Board's decision stems from an incident of assault where McLean was deemed

to be the aggressor. Such misconduct clearly constituted a breach of honorable

public service. See  N.J.S.A. 43:1-3(b). The serious nature of the incident dispels

McLean's argument that the Board abused its discretion by focusing on "the

assault rather than focusing on the isolated nature or reason for the hit ."

Ultimately, the record supports the Board's determination that McLean's service

in 2013 was dishonorable, that his misbehavior related to his duties because he

was wearing uniform pants, and that he caused serious bodily injury. See Masse,

 87 N.J. at 263.

      Pursuant to our "limited" standard of review, Russo,  206 N.J. at 27, we

affirm substantially for the reasons expressed in the Board's final decision,

which "is supported by sufficient credible evidence on the record as a whole."

R. 2:11-3(e)(1)(D). To the extent we have not specifically addressed McLean's


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remaining arguments, we conclude they are without sufficient merit to warrant

discussion in our written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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