IN THE MATTER OF THE ESTATE OF ROBERT LEVIN OFFICE OF LEGISLATIVE SERVICES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3893-18T4
IN THE MATTER OF THE
ESTATE OF ROBERT LEVIN,
OFFICE OF LEGISLATIVE
SERVICES.
__________________________
Submitted November 17, 2020 – Decided January 08, 2021
Before Judges Yannotti, Haas and Mawla.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2019-1952.
Joyce W. Murray and NJ Appleseed Public Interest
Law Center, attorneys for appellant Karen Levin (Joyce
W. Murray and Renee Steinhagen, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Melissa H. Raksa, Assistant Attorney General, of
counsel; Adam B. Masef, Deputy Attorney General, on
the brief).
PER CURIAM
Karen Levin appeals from a final determination of the Civil Service
Commission (Commission), which denied a request on behalf of her husband's
estate for payment of Supplemental Compensation On Retirement (SCOR)
pursuant to N.J.S.A. 11A:6-16. We affirm.
I.
This appeal arises from the following facts. Robert H. Levin (Levin) was
employed in the Office of Legislative Services (OLS), where he worked for
more than thirty years. In 2016, Levin was diagnosed with a terminal illness.
On October 3, 2017, Levin filed an application for retirement with an effective
date of November 1, 2018; however, he continued to work at the OLS while
undergoing treatment for his illness. He died on May 15, 2018.
On October 16, 2018, the Public Employees Retirement System (PERS)
determined that Levin's retirement was effective pursuant to N.J.S.A. 43:15A-
50, which provides in part that when a member dies after filing an application
for retirement, the member's retirement may be deemed effective under certain
circumstances. By letter dated December 18, 2018, the State's Division of
Pensions and Benefits informed the OLS that the PERS Board had determined
Levin had "retired status."
On January 4, 2019, the OLS submitted an application to the Commission
for the payment of SCOR on behalf of Levin's Estate. The OLS sought payment
of $15,000, which is the maximum lump sum payment for SCOR allowed under
A-3893-18T4
2 N.J.S.A. 11A:6-19. The Division of Agency Services denied the application
because Levin's separation from employment was "not based on retirement" as
required by N.J.A.C. 4A:6-3.1(b).
Appellant sought review of the decision of Agency Services by the
Commission. She asserted that Levin had been a "dedicated public servant" who
worked at the OLS "through his illness, despite having accrued sick time."
Appellant stated that she and her husband had consulted with the Commission,
the OLS, the district offices of "multiple legislators," and other State officials,
who "advised specifically" that if Levin had his retirement papers "in place"
when he died, she would be able to receive payment for his accrued and unused
sick leave.
Peri A. Horowitz, Executive Director of the OLS, submitted a letter to the
Commission in support of the appeal. Horowitz asserted that the Commission
should relax its regulation "as a matter of equity" to include posthumous
retirements. Horowitz stated that, in an appropriate case, the Commission could
interpret the term "retirement" in N.J.S.A. 11A:6-16 to include retirements
approved posthumously pursuant to N.J.S.A. 43:15A-50. Horowitz also argued
that payment of SCOR to Levin's Estate would be consistent with N.J.S.A.
A-3893-18T4
3
11A:6-19, which states that payment of SCOR shall be made to the employee's
estate if the employee dies before the effective date of retirement.
On April 1, 2019, the Commission issued its final decision on the appeal.
The Commission found that Levin's Estate was not entitled to SCOR payments
under N.J.S.A. 11A:6-16 because his "separation from employment was not due
to his retirement . . . ." The Commission determined that the statutory restriction
on the payment of SCOR "may not be relaxed."
The Commission also decided that while the Legislature enacted
legislation in 1995, which provided that the retirement of a member of a State
pension could be approved posthumously under certain circumstances, the
Legislature did not amend the statutes governing SCOR after the enactment of
that legislation. The Commission found a posthumous retirement approved
pursuant to such legislation did not require payment of SCOR.
The Commission further noted that N.J.S.A. 11A:6-19 states that
"payment [of SCOR] shall be made to the employee's estate" if the employee
dies after the effective date of retirement but before payment is made. The
Commission found, however, that the statute did not apply in this matter. The
Commission observed that "none of the associated statutory or regulatory
A-3893-18T4
4
provisions provide for payment [of SCOR] when an employee dies prior to a
retirement effective date."
In addition, the Commission noted that appellant claimed certain
individuals or agencies had assured her that SCOR would be paid to her if Levin
filed his application for retirement before his death. The Commission found,
however, that appellant did not have any "vested or other rights" as a result of
any such "administrative error." This appeal followed.
II.
Appellant first argues that the Commission's interpretation of N.J.S.A.
11A:6-16 is inconsistent with the language of the statute. We disagree.
We note initially that courts have a limited role when reviewing an
administrative agency decision. Gerba v. Bd. of Trs., 83 N.J. 174, 189 (1980).
To warrant reversal of an agency's determination, the court "must find the
agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not
supported by substantial credible evidence in the record as a whole.'" In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). When reviewing an agency's decision, we consider:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
A-3893-18T4
5
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza
v. Bd. of Trustees, 143 N.J. 22, 25 (1995)).]
Here, appellant contends the Commission erred by finding Levin's Estate
was not entitled to payment of SCOR under N.J.S.A. 11A:6-16. The statute
provides in pertinent part that
[s]tate employees . . . who have been granted sick leave
. . . shall be entitled upon retirement from a State-
administered retirement system to receive a lump sum
payment as supplemental compensation for each full
day of accumulated sick leave which is credited on the
effective date of retirement.
[Ibid.]
Furthermore, N.J.S.A. 11A:6-19 states that in the event a State employee
dies after the effective date of retirement but before payment of SCOR, the
payment shall be made to the employee's estate. Moreover, N.J.S.A. 11A:6-23
authorizes the Commission to adopt rules for the implementation of SCOR,
including the application and eligibility procedures. Pursuant to that authority,
the Commission adopted N.J.A.C. 4A:6-3.1, which states in pertinent part that
"[e]mployees who elect deferred retirement, or whose separation from
employment is not based on retirement, shall not be eligible for SCOR."
A-3893-18T4
6
Our paramount goal in interpreting a statute is to ascertain the
Legislature's intent and "generally, the best indicator of that intent is the
statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing
Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). We must give the words of a
statute "their ordinary meaning and significance." Ibid. (citing Lane v.
Holderman, 23 N.J. 304, 313 (1957)).
As noted, the plain language of N.J.S.A. 11A:6-16 limits payment of
SCOR to State employees "upon retirement." Moreover, the Commission's
regulation expressly provides that a State employee is not entitled to SCOR if
the employee elects deferred retirement or the employee's separation from
employment is not based on retirement. N.J.A.C. 4A:6-3.1(a)(4).
The Commission determined that an employee's eligibility for SCOR is
"expressly conditioned" by statute on the employee's "direct retirement from a
State-administered retirement system." The Commission found that where, as
here, the employee's separation is due to the employee's death, the employee's
estate is not entitled to SCOR.
We must give great weight to an administrative agency's interpretation of
a statute it is charged with enforcing unless the agency's interpretation is plainly
unreasonable, contrary to the language of the statute, or inconsistent with the
A-3893-18T4
7
Legislature's intent. See New Jersey Association of School Administrators v.
Schundler, 211 N.J. 535, 549-52 (2012) (citing In re Freshwater Wetlands Prot.
Act Rules, 180 N.J. 478, 489 (2004)). We are convinced the Commission's
interpretation of N.J.S.A. 11A:6-16 is reasonable, consistent with the plain
language of the statute, and in accord with the Legislature's intent.
In support of her contention that the Commission erred in its interpretation
of the statute, appellant cites Schundler. In that case, school administrators and
others challenged several regulations adopted by the Commissioner of
Education (Commissioner) to implement certain statutes enacted to reduce local
property taxes. Schundler, 211 N.J. at 539-43 (citing L. 2007, c. 53, 63, 92, and
260).
One of the statutes capped payments for accumulated unused sick leave to
certain school board officials at $15,000. Id. at 542 (citing N.J.S.A. 18A:30-
3.5). The Commissioner adopted a regulation, which provided in part that
"[s]upplemental payment for accumulated sick leave shall be payable only at the
time of retirement and shall not be paid to the individual's estate or beneficiaries
in the event of the individual's death prior to retirement." Id. at 543 (quoting
N.J.A.C. 6A:23A-3.1(e)(6)).
A-3893-18T4
8
In addressing the challenge to this regulation, the Court stated that the
legislative history of N.J.S.A. 18A:30-3.5 indicated that the statute was intended
to "bring supplemental compensation for accumulated unused sick leave in line
with the current law and practice for State employees." Id. at 553. The Court
noted that N.J.S.A. 11A:6-16 provided for payment of SCOR to certain State
employees "upon retirement." Ibid. The Court also noted that N.J.S.A. 11A:6-
19 allows payment of SCOR to an employee's estate if the employee dies after
the effective date of retirement, but before payment is made. Ibid.
The Court rejected the contention that the regulation improperly bars
payment to an employee's estate or beneficiary if the employee dies before
retirement. Id. at 551. The Court held the regulation was consistent with the
Legislative policy set forth in the enabling act, which is "that payment for
unused sick leave can be made only in connection with retirement." Ibid.
The Court observed that "[i]f payments could be made to an estate
whenever an employee died, the latter law[, allowing for payments made to the
employee's estate if an employee dies after the effective date of retirement but
before payment is made,] would be meaningless." Id. at 553. The Court did not
address the question of "whether payments can be made to other state employees
A-3893-18T4
9
for unused sick leave under N.J.S.A. 11A:6-16 if an employee dies before
retirement . . . ." Id. at 554.
Here, appellant argues that N.J.S.A. 11A:6-16 should be interpreted in a
manner similar to the statute at issue in Schundler. She contends that retirement
is the focus and the sole requirement that triggers the SCOR payment under
N.J.S.A. 11A:6-16, not death nor any other type of separation from employment.
However, as we have noted, in Schundler, the Court did not address the issue of
whether N.J.S.A. 11A:6-16 requires SCOR payments when the employee dies
before retirement.
Nevertheless, like the statute at issue in Schundler, N.J.S.A. 11A:6-16
expressly provides for payment of SCOR upon the employee's "retirement."
Here, the Commission found that SCOR should only be paid when a member 's
separation from employment is due to retirement. Nothing in Schundler requires
a different interpretation of the statute. Therefore, appellant's reliance upon
Schundler is misplaced.
III.
Appellant also argues that the Commission adopted an unduly restrictive
interpretation of the term "retirement" as used in N.J.S.A. 11A:6-16. She notes
that after Levin's death, the PERS declared his retirement to be "effective"
A-3893-18T4
10
pursuant to N.J.S.A. 43:15A-50. Appellant contends a "retirement" that is
approved pursuant to N.J.S.A. 43:15A-50 should be considered a "retirement"
for purposes of payment of SCOR pursuant to N.J.S.A. 11A:6-16. Again, we
disagree.
When courts review "two separate but related statutes, the goal is to
harmonize the statutes in light of their purposes." Am. Fire & Cas. Co. v. N.J.
Div. of Tax., 189 N.J. 65, 79-80 (2006) (citing St. Peter's Univ. Hosp. v. Lacy,
185 N.J. 1, 14 (2005)). If two statutory provisions relate "to the same subject
matter," courts must "reconcile them, so as to give effect to both expressions of
the lawmakers' will." Id. at 81 (quoting St. Peter's Univ. Hosp., 185 N.J. at 14).
"In determining whether legislative enactments 'actually concern the same
object,' a court should consider 'whether both statutes were included in one
enactment, whether the proofs required overlap, and whether they are 'designed
to serve the same purpose and objective.'" DiNapoli v. Bd. of Educ. Of Twp. of
Verona, 434 N.J. Super. 233, 241-42 (App. Div. 2014) (quoting Marino v.
Marino, 200 N.J. 315, 330 (2009) (internal quotations omitted).
N.J.S.A. 43:15A-50 governs public employee retirement systems and was
amended in 1995. L. 1995, c. 221. N.J.S.A. 43:15A-50 provides that upon
A-3893-18T4
11
retirement, a member of a public employee retirement system is entitled to select
certain payment options. The statute further provides in part that
[e]xcept in the case of members who have elected to
receive (1) a deferred retirement allowance pursuant to
[N.J.S.A. 43:15A-38], or (2) early retirement
allowances pursuant to [N.J.S.A. 43:15A-41(b)] after
separation from service pursuant to [ N.J.S.A. 43:15A-
38], if a member dies within [thirty] days after the date
of retirement or the date of board approval, whichever
is later, the member's retirement allowance shall not
become effective and the member shall be considered
an active member at the time of death. However, if the
member dies after the date the application for
retirement was filed with the system, the retirement will
become effective if:
....
c. The deceased member had designated a
beneficiary under an optional settlement provided by
this section; and
d. The surviving beneficiary requests in writing
that the board make such a selection. Upon formal
action by the board approving that request, the request
shall be irrevocable.
....
Here, appellant contends the purpose of N.J.S.A. 11A:6-19 "is to provide
a method for the heirs of deceased retirees to receive SCOR benefits." She
argues the purpose of the SCOR statute should be "harmonized" with the change
to the retirement law enacted in 1995 to permit SCOR payments to be made to
A-3893-18T4
12
the estate of a State employee upon the effective date of retirement regardless
of when the employee dies. We are unpersuaded by appellant's argument.
The SCOR program is administered by the Commission. N.J.S.A. 11A:6-
23. In its brief, the Commission notes that the legislative history of statutes
which provide for the payment of accumulated sick leave indicate that such
payments have many purposes. One purpose is to discourage public employees
who have accumulated numerous sick days from taking an extended leave just
before their retirements. See Sponsor's Statement to A. 1014 (L. 1973, c. 130).
On the other hand, the statutes governing retirements are administered by
the boards of trustees of the respective retirement systems. N.J.S.A. 43:15A-
17. Prior to the enactment of L. 1995, c. 221, N.J.S.A. 43:15A-50 stated that if
an employee dies within thirty days after the date of retirement or the date of
board approval, whichever was later, the employee would not be deemed retired
at the time of death. New Jersey Educ. Ass'n v. Bd. of Trs., Pub. Emps.' Ret.
Sys., 327 N.J. Super. 405, 412 (App. Div. 2000) (citing Senate Budget and
Appropriations Comm. Statement to A. 1248 (May 15, 1995)). However, a
public employee's retirement may be deemed "effective" if the member dies after
the date the application for retirement was received by the system, and certain
conditions are satisfied. Ibid.
A-3893-18T4
13
In this case, the Commission found that posthumous approval of a public
employee's retirement pursuant to N.J.S.A. 43:15A-50 has nothing to do with
the SCOR program, and the approval of such a retirement does not authorize the
payment of SCOR. We agree. Indeed, the purpose of a posthumous retirement
under N.J.S.A. 43:15A-50 is different from the purpose of compensating a
public employee for accumulated and unused sick leave.
Moreover, as the Commission noted in its decision, the 1995 legislation,
which amended N.J.S.A. 43:15A-50, did not address payments of SCOR. The
statutes governing SCOR were enacted earlier. L. 1986, c. 112. Therefore, we
reject appellant's contention that the statutes governing posthumous retirements
and SCOR should be "harmonized." They are separate statutory schemes, which
are administered by different agencies and have different purposes.
Accordingly, we conclude that a posthumous retirement approved
pursuant to N.J.S.A. 43:15A-50 does not require payment of SCOR pursuant to
N.J.S.A. 11A:6-16.
IV.
Appellant further argues that the Commission's regulation governing
payment of SCOR is invalid because it provides that "an employee . . . whose
separation from employment is not based on retirement, is not eligible for
A-3893-18T4
14
SCOR." Appellant contends the regulation is ultra vires because it includes a
requirement that is not included in the enabling statute. She also contends the
phrase is not defined in the SCOR regulations.
Regulations adopted by an administrative agency are presumed to be
"valid and reasonable." Schundler, 211 N.J. at 548 (quoting N.J. Soc'y for the
Prevention of Cruelty to Animals v. N.J. Dept. of Agric., 196 N.J. 366, 385
(2008) (NJSPCA). The party challenging the regulation must show that the
agency's action was "arbitrary, capricious or unreasonable." Ibid. (quoting
Henry, 81 N.J. at 579-80).
"An administrative regulation 'must be within the fair contemplation of
the delegation of the enabling statute.'" N.J. Guild of Hearing Aid Dispensers
v. Long, 75 N.J. 554, 561 (1978) (quoting S. Jersey Airways v. Na'l. Bk. of
Secaucus, 108 N.J. Super. 369, 383 (App. Div. 1970)). A regulation may be
invalidated if it is "inconsistent with the statute it purports to interpret."
NJSPCA, 196 N.J. at 38 (quoting Smith v. Dir., Div. of Tax'n, 108 N.J. 19, 26
(1987)).
We are convinced that the Commission's regulation is within the "fair
contemplation" of the enabling act and it is consistent with the statutes
governing payment of SCOR. As noted, the statute provides that SCOR shall
A-3893-18T4
15
only be paid "upon retirement." N.J.S.A. 11A:6-16. The regulation reasonably
interprets the statute to mean that SCOR should only be paid when the
employee's separation is due to retirement. We therefore find no merit to
appellant's challenge to the validity of the regulation.
We have considered appellant's other contentions and conclude they lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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