RICHARD KESNER v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0775-19T3
RICHARD KESNER,
Petitioner-Appellant,
V.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
Submitted December 16, 2020 – Decided January 19, 2021
Before Judges Fuentes and Rose.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-10-30722.
Crivelli & Barbati, LLC, attorneys for appellant
(Amanda E. Nini, of counsel and on the brief).
Robert Seymour Garrison, Jr., Director of Legal
Affairs, attorney for respondent (Juliana C. DeAngelis,
Deputy Attorney General, on the brief).
PER CURIAM
Richard Kesner appeals from an October 8, 2019 final agency decision of
the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS)
denying his request to cancel his pension loan obligation. Kesner maintains he
paid the loan in full prior to his retirement, and the Board should have
transmitted his matter to the Office of Administrative Law (OAL) for a hearing
to resolve disputed questions of fact in that regard. For the first time on appeal,
Kesner alternatively argues the Division of Pensions and Benefits (Division)
should have forgiven the loan debt pursuant to the doctrine of laches. We affirm.
I.
We summarize the pertinent facts chronologically and in some detail from
the record before the Board to give context to Kesner's arguments.
Kesner established membership in the PFRS on June 1, 1981, when he
was hired as a firefighter by the Jersey City Fire Department. In July 2002, after
twenty-one years of service in the PFRS, Kesner purchased credit for twenty-
three months of prior military service at a cost of $35,137.31. See N.J.S.A.
43:16A-11.11. According to the Division's "Certification of Payroll
Deductions," 120 monthly payments for that purchase commenced on December
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1, 2002.1 The purchase of service credits enabled Kesner to retire on July 1,
2004 with twenty-five years of creditable service in the PFRS (special
retirement).
On March 18, 2004, the Division received Kesner's completed
"Application for Retirement Allowance." In response to the question: "If you
will have an outstanding loan balance at retirement, how do you want to pay the
loan off[,]" Kesner checked the box that indicated: "Continue Payments Into
Retirement."
On April 19, 2004, the Division notified Kesner that the Board approved
his application for special retirement, effective July 1, 2004. Two days later,
the PFRS issued Kesner a $32,000 pension loan via check number 695906.
According to the Division's June 1, 2004 "Certification of Payroll Deductions,"
the loan was amortized over fifty-eight payroll deductions of $610.36.
1
The Board referenced the December 1, 2002 certification in its decision, but
the parties did not provide that certification or any documents relating to
Kesner's purchase of service credits on this appeal. Nor did the Board list the
certification or the purchase documents in its statement of items comprising the
record on appeal. See R. 2:5-4(b). But, Kesner did not move to supplement the
record pursuant to R. 2:5-5(b). In any event, we refer to those documents as
background only here, where Kesner does not challenge their existence or
accuracy.
A-0775-19T3
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Payments commenced on June 1, 2004. Because Kesner retired on July 1, 2004,
only one payroll deduction was made.
On May 20, 2004, the Division issued Kesner its "Quotation of Retirement
Benefits." Among other information, that form specifies Kesner's June 30, 2004
service termination date, and his membership credit of twenty-five years as of
that date. "Additional Important Information" is included on the second page,
and states in its entirety:
At the time of your termination, your record
indicates you will have an outstanding arrears balance
of $31,338.41. This balance must be paid in full before
your retirement. Please make your checks payable to
the Police and Firemen's Retirement System.
ACCORDING TO OUR RECORDS, YOU WILL
HAVE AN OUTSTANDING LOAND [sic] BALANCE
AT THE TIME OF RETIREMENT. CHAPTER 132,
P.L. 1999 PERMITS YOU TO CINTINUE [sic] YOUR
MONTHLY LOAN DEDUCTION IN RETIREMENT.
A LOAN DEDUCTION IN THE AMOUNT OF
[$]610.36 WILL BE TAKEN FROM YOUR
RETIREMENT CHECKS UNTIL THE LOAN
BALANCE, PLUS INTEREST, IS PAID IN FULL. IF
YOU WISH TO PAY OFF THE LOAN BALANCE AT
THIS TIME, PLEASE MAKE YOUR CHECK
PAYABLE TO: POLICE AND FIREMEN'S
RETIREMENT SYSTEM IN THE AMOUNT OF
[$]31,635.02 AND MAIL IT ALONG WITH THIS
PAGE TO THE ADDRESS ABOVE.
A-0775-19T3
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On June 22, 2004, the Division received check number 946 in the amount
of $31,338.41 from Kesner. According to the Division's "Report of Cash
Received," the payment was made for "[a]rrears." Notably, the amount of
Kesner's payment precisely matches the amount of the "outstanding arrears
balance" set forth in the Division's May 20, 2004 quotation.
The Division has no record of another "lump sum" payment for Kesner's
pension loan described in the Division's May 20, 2004 quotation. The Board
conceded payments should have continued into Kesner's retirement pursuant to
his election and the Division failed to notify Kesner of the loan balance until
thirteen years after his retirement. According to the Board, "a post-retirement
audit of [Kesner's] account revealed the outstanding loan balance which was
never paid." 2
2
Sometime prior to July 2016, the Division conducted an audit of the State's
pension systems, including the PFRS. Among other errors, the Division
identified multiple loans, including Kesner's, which were not paid within five
years of issuance, thereby jeopardizing the status of five pension funds,
including the TPAF, as qualified governmental plans under the Internal Revenue
Code. See 26 U.S.C. § 72(p)(2)(B). Under the Code, such unpaid loans are
deemed distributions, which are taxable as income to the funds' members. 26
U.S.C. § 72(p)(1). Following the audit, the Division and the Internal Reve nue
Service executed an agreement, detailing the Division's voluntary compliance
program in exchange for amnesty regarding 336 "loan failures in 2014, 2015 and
2016," totaling $1,648,941.96. The State provided the agreement in its appendix
on appeal. Although the Board apprised Kesner about the substance of the
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On November 14, 2017, the Division notified Kesner that the audit
revealed he owed $31,635.02, plus interest. The Division offered Kesner the
opportunity to satisfy the loan with a lump sum payment. Otherwise, $610.36
would be deducted from his monthly payments, commencing with his next
pension check and continuing until the balance was repaid.
Between December 14, 2017 and July 30, 2019, Kesner on his own behalf
– and with the assistance of two different law firms – repeatedly disclaimed he
had a loan balance. As one notable example, on January 19, 2018, Kesner
emailed the Division's supervising accountant, asserting: "I retired in 2004 and
was told all debt had to be settled before I could receive my pension. I made a
lump sum payment and retired. Now I receive a letter stating I owe $35,000.
Everything was settled in 2004." (Emphasis added). Kesner continued to
express his frustration about the delayed notification of the loan balance,
claiming: "If there was a problem [and] I was notified in a timely manner, this
could have been settled in 2004."
agreement, it is unclear from the record whether the Board provided the
agreement to Kesner during the pendency of his appeal before the agency.
Kesner did not move before this court to preclude the agreement from the
Board's appendix.
A-0775-19T3
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Through his initial attorney's April 18, 2018 correspondence to the
Division, Kesner "admit[ted] he took a loan from his pension in the amount of
approximately $32,000" in 2004. Kesner further acknowledged he "borrowed
the money from his mother[-]in[-]law Julia Hillick, obtained a check, brought
the check to the [S]tate and paid off the loan." Counsel stated defendant would
have "some difficulty" proving he repaid the loan because Hillick had since died
"and any bank records relating to this payment is [sic] not really available."
Kesner and his attorney asserted their belief that "the State made a mistake and
did not correctly record his repayment of the loan."
In his June 28, 2018 correspondence to the Division, counsel advised that
Kesner "located a letter from the State from May 20, 2004[,] which says he has
an outstanding balance of $31,000 and it must be paid in full before he retires.
His position is, he paid it." Notably, Kesner's attorney referenced and attached
the May 20, 2004 quotation.
In its July 6, 2018 response, the Division maintained its position that
Kesner only repaid the arrears balance due on his military service credits
purchase, pursuant to the "require[ment]" to do so "prior to his retirement."
Conversely, Kesner's pension "loan balance due at retirement did not have to be
A-0775-19T3
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paid in full prior to his retirement, but he had the option to pay this in a lump
sum." The Division explained the issue:
A lump sum payment was not received for the loan and
the outstanding loan balance and monthly payment
should have been transferred to his retirement account
when [the Division] created [Kesner's] retirement
account, but this did not occur. This balance remained
unpaid until it was found through an audit last year.
Following additional attempts to convince the Division that he paid the
loan – and that the Division's error "could have been settled in 2004" – Kesner
appealed to the Board. Kesner was afforded the opportunity to appear before
the Board with counsel but elected not to do so. After considering the record at
its June 10, 2019 meeting, the Board rejected Kesner's request to cancel his
outstanding loan balance and issued a written decision the following day.
Another attorney on Kesner's behalf thereafter requested a hearing be fore the
OAL, claiming "material facts [were] in dispute." The Board denied Kesner's
request, and thereafter issued its final administrative decision.
In its cogent written decision, the Board detailed its findings of fact, which
are consistent with our summary above. The Board further noted "Kesner's
eligibility for [s]pecial retirement benefits was based on the years of service[,]
which included the purchase of military service. If not for the completion of the
A-0775-19T3
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purchase . . . Kesner would have been ineligible for [s]pecial retirement
benefits."
Turning to its conclusions of law, the Board cited the PFRS statute
pertaining to the repayment of loans after a member retires, and accurately found
Kesner was required to repay his pension loan with interest. See N.J.S.A.
43:16A-16.2. Noting the Division erred by failing to deduct Kesner's pension
loan from his monthly retirement benefits, the Board correctly recognized the
PFRS was statutorily authorized to correct that error under N.J.S.A. 43:16A-18,
which provides, in pertinent part:
Should any change or error in records result in a
member or person receiving from the retirement system
more or less than he would have been entitled to receive
had the records been correct, the retirement system
shall correct such error, and as far as practicable, shall
adjust the payments in such manner that the actuarial
equivalent of the benefit to which such member or
beneficiary was correctly entitled shall be paid. The
actuarial equivalent of any shortage in required
contributions at the time of retirement on account of
misstatement of age, leave of absence, or clerical error,
shall be deducted from the retirement allowance
otherwise payable.
Additionally, the Board
relie[d] on the fact that the PFRS is a tax-qualified plan
in accordance with the Internal Revenue Code [(IRC)],
which requires that pension loans comply with [IRC]
section 72(p). Failure of the PFRS to comply with
A-0775-19T3
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[that] section . . . could result in plan disqualification,
meaning the PFRS could lose its tax-qualified status.
The Board is also aware that the [Division] entered into
an [a]greement with the Internal Revenue Service
[(IRS)] to correct errors in the loan program that could
have disqualified the PFRS, and as part of that
[a]greement, the PFRS Board must enforce [IRC]
section 72(p).
Reiterating its initial decision that "this matter does not entail any disputed
questions of fact," the Board found it "was able to reach its findings of fact and
conclusions of law in this matter on the basis of the retirement system's enabling
laws and regulations and without the need for an administrative hearing." This
appeal followed.
II.
Appellate review of an administrative agency action is deferential and
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
A-0775-19T3
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because we would have come to a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011).
Generally, we "afford substantial deference to an agency's interpretation
of a statute that the agency is charged with enforcing." Richardson v. Bd. of
Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). Substantial
deference must be extended to an agency's interpretation of its own regulations,
particularly on technical matters within the agency's expertise. In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004) (citation omitted). 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.
On appeal, Kesner reprises his contention that he paid the pension loan in
full before he retired and that denial creates an issue of fact, entitling him to a
hearing. Absent from Kesner's merits brief, however, is any reference to his
purchase of credit for his prior military service, which enabled him to retire
early. Notably, Kesner does not contest the Board's findings in that regard.
Pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1
to -31, an administrative agency may transfer a "contested case" to the Office of
Administrative Law for a hearing. A contested case is defined under the APA
as:
A-0775-19T3
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[A] proceeding, . . . in which the legal rights, duties,
obligations, privileges, benefits or other legal relations
of specific parties are required by constitutional right
or by statute to be determined by an agency by
decisions, determinations, or orders, addressed to them
or disposing of their interests, after opportunity for an
agency hearing[.]
[N.J.S.A. 52:14B-2.]
"The [APA] . . . does not create a substantive right to an administrative
hearing; it merely provides for a procedure to be followed in the event an
administrative hearing is otherwise required by statutory law or constitutional
mandate." Toys "R" Us v. Township of Mount Olive, 300 N.J. Super. 585, 590
(App. Div. 1997). Under the APA, an agency head has the exclusive authority
to determine whether a case is a contested case within the intent of the APA.
N.J.S.A. 52:14F-7(a); N.J.A.C. 1:1-4.1; Sloan ex rel. Sloan v. Klagholtz, 342 N.J. Super. 385, 392 (App. Div. 2001). A hearing is only required if the matter
before the agency presents contested material issues of fact. Sloan, 342 N.J.
Super. at 392 (citing N.J.S.A. 52:14B-2(b)). When there are no contested
material issues of fact, the matter is not considered a "contested case." Ibid.
There was no dispute as to the material facts in this case. Through his
attorney's April 18, 2018 correspondence to the Division, Kesner admitted he
received a $32,000 pension loan in 2004. Kesner further acknowledged Hillick
A-0775-19T3
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gave him a check, which he brought to the Division to satisfy the arrears. In his
January 19, 2018 email, Kesner described the amount as "a lump sum payment."
Importantly, Kesner has never challenged the Division's contention that
he purchased military service credit or the accuracy of its May 20, 2004
quotation of the balances owed for the arrears on that purchase and his
outstanding pension loan. Notably, the sums are similar: the arrears balance
was $31,338.41; the loan balance was $31,635.02. But, the May 20, 2004
quotation clearly specified the arrears balance must be fully paid prior to
retirement, while the loan balance could be paid in a lump sum or $610.36 would
be deducted monthly from Kesner's pension checks. And, Kesner offered no
explanation to refute the Division's June 22, 2004 report that his $31,338.41
check was received for "[a]rrears."
Because this was not a contested case, there was no need for a hearing
before the OAL. Cf. Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J.
Super. 1, 32 (App. Div. 2012) (recognizing in the context of opposition to a
summary judgment motion under Rule 4:46-2(c) "[b]are conclusory assertions,
without factual support in the record, will not defeat a meritorious application").
Similarly here, Kesner reiterates his conclusory assertions that he paid the loan,
when his sole "lump sum" payment only satisfied the arrears on his purchase of
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service credit. And, that arrears balance was required to be satisfied prior to
retirement.
In the alternative, Kesner belatedly urges us to apply "the equitable
concept of laches as the Division's inexcusable delay in attempting to collect the
loan created undue prejudice and his inability to prove, with direct evidence,
that he already repaid the loan." In that regard, Kesner asserts because Hillick
is dead, Kesner cannot prove he repaid the loan. We need not address the
application of a doctrine, such as laches, that was not raised below; is not
jurisdictional in nature; and does not substantially implicate the public interest.
See In re Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div.
2008); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014); Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973); Pressler & Verniero, Current N.J.
Court Rules, cmt. 3 on R. 2:6-2 (2021).
Nonetheless, we acknowledge the Board rejected Kesner's request to
waive the repayment of his loan balance and the accrued interest, presumably
because Kesner could not prove he paid the loan in light of Hillick's death.
Although the record before us does not reveal that Kesner specifically argued
the applicability of the doctrine of laches, we note equitable remedies were not
available here, where the Board acted pursuant to its statutory authority. See
A-0775-19T3
14 N.J.S.A. 43:16A-16.2 and -18; see also Wolfson v. Bonello, 270 N.J. Super 274,
286 (App. Div. 1994) (recognizing the well-established principle that "equity
follows the law").
Accordingly, Kesner was required to repay the outstanding loan balance.
See N.J.S.A. 43:16A-16.2. And the Board was statutorily mandated to correct
the Division's error. See N.J.S.A. 43:16A-18. Notably, the PFRS statute does
not contain a limitations period. Cf. N.J.S.A. 54:51A-7 (limiting the tax court's
power to correct clerical errors "upon the filing of a complaint at any time during
the tax year or within the next [three] tax years thereafter").
Moreover, as we recognized more than fifty years ago:
The pension statute is carefully drawn to protect the
integrity of the public and contributed funds from
which pensions are paid. Administrative errors by
officials in respect of such funds, which are a public
trust, cannot on the theory of estoppel be permitted to
aggrandize the specific statutory rights of qualified
pensioners into illegal depletions of such funds for their
private benefit.
Tubridy v. Consol. Police & Firemen's Pension Fund
Comm'n, 84 N.J. Super. 257, 263 (App. Div. 1964).
We are therefore compelled to affirm the Board's decision, which is consistent
with the governing law and the public policy that is aimed at protecting the
overall pension scheme.
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Affirmed.
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