MARCO SEMINARIO 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NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0824-18T4

MARCO SEMINARIO,

          Petitioner-Appellant,

v.

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

     Respondent-Respondent.
__________________________

                    Submitted February 5, 2020 – Decided February 26, 2020

                    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. 3-85943.

                    Craig Scott Gumpel, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Donna Sue Arons, Assistant Attorney
                    General, of counsel; Robert E. Kelly, Deputy Attorney
                    General, on the brief).

PER CURIAM
        Appellant Marco Seminario appeals from a September 11, 2018 final

agency decision of respondent Board of Trustees (Board) of the Police and

Fireman's Retirement System (PFRS). The Board adopted, with modification,

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

decision to invoke a three-year forfeiture of appellant's retirement benefit. We

affirm.

        The pertinent facts of this case are undisputed. Appellant became a

corrections officer for the Hudson County Department of Corrections in January

1993.     He suffered three work-related injuries, including a hand injury on

November 29, 2012. He was out of work on December 8, 2012, when he was

involved in a motor vehicle accident after consuming prescription medication

and alcohol. Appellant was charged and pled guilty to driving while intoxicated

(DWI), in violation of  N.J.S.A. 39:4-50.

        The record reflects that during the DWI incident, when the arresting

officer returned to his police car to prepare a report, appellant started to drive

away and only stopped when police yelled at him. Further, when he went to two

different police stations to be processed, appellant threatened the arresting

officer by saying his entire family was "connected," adding "[y]ou'll see what




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happens to you." The arresting officer later testified he felt appellant threatened

him.

       Appellant's job was terminated, effective May 9, 2013, for conduct

unbecoming a public employee, in light of his attempt to misuse his office to

avoid arrest for DWI and to threaten and intimidate the arresting police officer.

Significantly, by the second quarter in 2013, the last quarter in which pension

contributions were made on his behalf, appellant had credited PFRS service of

twenty years, four months.

       Appellant appealed from a December 2013 final administrative action of

the Civil Service Commission upholding his removal from his position as a

corrections officer.   We affirmed his termination on June 9, 2015 (In re

Seminario, Docket No. A-2262-13). However, in 2014, while his appeal was

pending, appellant filed for disability retirement benefits.     A doctor found

appellant was permanently and totally disabled during his employment as a

corrections officer, due to his three work-related injuries.

       At a February 2016 meeting, the Board concluded appellant left his job

due to a disciplinary termination, not a disability. Accordingly, it cited to

 N.J.S.A. 43:16A-8 and denied his request for disability retirement benefits. The

Board reasoned that appellant could never return to his corrections officer


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position, as required by statute, if his disabling condition "vanished or materially

diminished." The Board also voted to forfeit appellant's final three years of

service and salary credit, based on his dishonorable service as attributable to the

DWI incident. This reduced appellant's creditable PFRS service to under twenty

years.

         Appellant appealed the Board's decision and the matter was transferred to

the Office of Administrative Law for a hearing. On June 21, 2018, the ALJ

reversed the Board's determination of appellant's ineligibility to apply for

disability benefits but affirmed the three-year forfeiture. In its September 11,

2018 decision, the Board rejected the ALJ's conclusion as to appellant's

eligibility for disability retirement benefits but affirmed the ALJ's ruling

regarding the forfeiture. The Board concluded appellant qualified for a deferred

retirement benefit after he turned fifty-five years old.

         On appeal, appellant claims the Board's decision is unduly harsh and

contrary to the Legislature's intent to afford disability benefits to those

individuals whose dishonorable conduct occurred after they were disabled. He

also argues the penalties imposed by the Board violate the "excessive fines"

clause of the Eighth Amendment to the United States Constitution. We disagree.




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      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 that

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 misconduct, the Board must find the

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

Emps.' Ret. Sys.,  87 N.J. 252, 263 (1981).         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 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 following

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




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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.

        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)]"). Here, it

is evident that the Board, in its February 9, 2016 decision, considered all eleven

Uricoli factors when addressing appellant's conduct during the DWI incident.

The Board determined that appellant's misconduct "demonstrated a high degree

of moral turpitude and that there was a direct relationship between his

misconduct and his duties as a [c]orrections [o]fficer." It also considered a

forfeiture of service and salary from the date of his offense forward, but found

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such an approach would trigger "too lenient a penalty." The Board concluded

one year should be forfeited as dishonorable for each of the three offenses l isted

in its decision. Accordingly, it voted to forfeit the final three years of appellant's

service and salary. Separately, the Board denied appellant's request to file for

accidental disability retirement benefits, finding he left his job as a correcti ons

officer based on his disciplinary termination, not a disabling condition.

      There are two types of disability retirement for police officers: ordinary

disability and accidental disability.  N.J.S.A. 43:16A-6;  N.J.S.A. 43:16A-7.

Typically, ordinary disability benefits are less generous than accidental

disability benefits. See Patterson v. Bd. of Trs., State Police Ret. Sys.,  194 N.J.
 29, 43 (2008) ("[A]n accidental disability retirement entitles a member to

receive a higher level of benefits than those provided under an ordinary

disability retirement." (citing Richardson v. Bd. of Trs., Police and Firemen's

Ret. Sys.,  192 N.J. 189, 194 (2007))).

       N.J.S.A. 43:16A-7 allows a PFRS employee to retire on an accidental

disability retirement allowance, provided the medical board certifies the

employee's permanent disability following a traumatic work-related event.

Importantly, however,  N.J.S.A. 43:16A-8(2) mandates that disability retirees

"return to duty once their disability has 'vanished or has materially diminished.'"


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Cardinale v. Bd. of Trs., Police and Firemen's Ret. Sys.,  458 N.J. Super. 260,

262 (App. Div. 2019) (holding a PFRS member who separated from employment

by irrevocably resigning from active duty to settle disciplinary charges rendered

that member, a police officer, ineligible for ordinary disability benefits because

he could never return to work as contemplated by the disability retirement

statutory framework).

      Here, the Board found appellant's job was terminated prior to his

application for disability retirement benefits, and that his termination from

employment made returning to his duties impossible.            The Board stated

appellant "left employment due to his termination, not a disabling condition, and

could never return to employment as required by statute should the disabling

condition be found to have vanished or become materially diminished." The

Board concluded that "[g]ranting a disability retirement under these

circumstances would be in contravention of the statutory scheme."

      We recognize "[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


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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 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

determination of a strictly legal issue." Richardson,  192 N.J. at 196.

       Applying this standard of review to the matter before us, we conclude the

final agency decision is supported by sufficient credible evidence on the record

as a whole, Rule 2:11-3(e)(1)(D), and is not arbitrary, capricious or

unreasonable. To the extent we have not specifically addressed appellant's

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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