Opinion
DOCKET NO. A-4297-14T2
08-11-2016
PAUL LIOBE, Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Randi Doner April argued the cause for appellant (Oxfeld Cohen, P.C., attorneys; Ms. April, of counsel and on the brief). Robert E. Kelly, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christin E. Deacon, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Board of Trustees, Police and Firemen's Retirement System, PFRS No. 3-110937. Randi Doner April argued the cause for appellant (Oxfeld Cohen, P.C., attorneys; Ms. April, of counsel and on the brief). Robert E. Kelly, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christin E. Deacon, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Paul Liobe appeals from the April 14, 2015 final administrative determination of the Board of Trustees (Board) of the New Jersey Police and Firemen's Retirement System (PFRS), denying his request for Tier 1 membership in the PFRS. Given our standard of review, we discern no basis to disturb the Board's decision.
To fully understand the issue presented, we first briefly examine relevant PFRS membership tier classifications. Tier 1 membership is limited to those who were enrolled on or before May 21, 2010; Tier 2 is for members enrolled between May 21, 2010 and June 28, 2011; and Tier 3 is for members who enrolled after June 28, 2011. Employers' Pensions and Benefits Administration Manual, PFRS Membership Tiers (July 8, 2016), http://www.state.nj.us/treasury/pensions/epbam/pensions/retirements/retpfrs.htm. Retirement allowance calculations are the same for members of all three Tiers, but final compensation calculations are different. Ibid. An eligible employee may be enrolled only after completion of mandatory Police Training Commission (PTC) training. N.J.A.C. 17:4.2.6.
The facts here are not disputed. On May 17, 2010, Liobe began employment as a corrections officer with Sussex County. Liobe's application for enrollment in PFRS was submitted by Sussex County to the Division of Pensions and Benefits (Division) on June 2, 2010, and processed on June 29, 2010. Liobe's effective date of PFRS enrollment was initially established as June 1, 2010, under Tier 2 membership.
On July 21, 2010, Sussex County notified the Division that Liobe had not completed mandatory PTC training and should not have PFRS pension contributions deducted until he successfully completed the training. After determining that Liobe was ineligible for PFRS enrollment, the Division closed his account. No payroll deductions for pension contributions were made from Liobe's salary.
Liobe completed PTC training on August 30, 2011, and, thereafter, Sussex County submitted a PFRS application for him. Liobe was enrolled under Tier 3 membership, effective September 1, 2011. In 2012, Liobe purchased service credit for the period from May 17, 2010, his date of hire, to the date of his enrollment for $3595.97.
On June 2, 2014, Liobe wrote to the Division seeking to appeal his Tier 3 classification. He argued that the Division should recognize May 17, 2010 as his "regular or permanent appointment date with an enrollment date in PFRS reflecting same." Liobe retained counsel, and on October 7, 2014, his attorney sent a letter to the Board complaining of "wrongdoing" regarding the processing of his pension forms.
On October 16, 2014, the Division responded and explained that Liobe was not eligible for admission to PFRS until he had completed the required PTC training, which did not occur until August 30, 2011.
On November 20, 2014, Liobe's attorney sent a letter to the Division repeating his claim that Liobe was entitled to Tier 1 membership. The Board considered Liobe's appeal, and in a letter dated January 13, 2015, notified him that his request to enroll in Tier 1 PFRS membership was denied.
On February 4, 2015, Liobe appealed the Board's determination and requested an administrative hearing. On March 9, 2015, the Board determined that there were no questions of fact which would require an administrative hearing. On April 14, 2015, the Board issued its final determination denying Liobe's request for Tier 1 membership.
On appeal, Liobe challenges the decision of the Board in denying his application for Tier 1 status. He claims his entry into the police training academy for PTC was delayed by Sussex County for one year after he was hired due to economic concerns. Because Liobe's ability to complete PTC was strictly at the discretion of the County, he claims that the decision to deny him Tier 1 membership was arbitrary, capricious, and unreasonable.
Our standard of review of a final decision of a State administrative agency is well-settled. We will not upset an agency's ultimate determination unless the agency's decision is shown to have been arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole. Barrick v. State, 218 N.J. 247, 259 (2014). We must defer to the agency's expertise and superior knowledge of a particular field, and do not substitute our judgment for that of the agency, even when we may have reached a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). However, we are not bound by the agency's interpretation of a statute or its determination of a strictly legal issue. In re Taylor, 158 N.J. 644, 658 (1999). The party challenging the administrative determination bears the burden of proof. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).
Defendant cites an unpublished case, Knox v. Public Employees' Retirement System, No. A-1444-10 (App. Div. Feb. 23, 2012), as the "polestar" authority on the issue presented, and claims a second unpublished opinion, Kochel v. Public Employees' Retirement System, No. A-1106-12 (App. Div. Sept. 11, 2014), has "binding effect" on our decision.
Knox and Kochel, however, have no precedential value due to their unpublished status. Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 559 (2015). The use and authority of unpublished opinions is governed by Rule 1:36-3, which provides that "[n]o unpublished opinion shall constitute precedent or be binding upon any court" and that, "except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court."
Relying on our decisions in Eherenstorfer v. Division of Public Welfare, 196 N.J. Super. 405 (App. Div. 1984), and Raymond v. New Jersey State Parole Board, 221 N.J. Super. 381 (App. Div. 1987), Liobe argues that, even though Knox and Kochel are unpublished, these decisions are binding on the Board. We find this reliance misplaced.
In Eherenstorfer, supra, we held that an unpublished decision that voided certain regulations of the Division of Public Welfare was binding on the Division in subsequent cases involving the voided regulations. 196 N.J. Super. at 412 ("A party does not have the right to avoid a legal determination made by this court merely because a decision is unpublished.").
Similarly, in Raymond, supra, we held that the defendant Parole Board was bound by an interpretation of the Parole Act contained in two prior unpublished opinions because the Board was a party in both of those cases. 221 N.J. Super. at 384-85.
In Knox and Kochel we did not void or interpret any of the regulations or statutes that are at issue here. As a result, neither case is binding upon the Division under the principles underlying our decisions in Eherenstorfer and Raymond. Knox and Kochel, therefore, have no precedential value here. Moreover, both cases are distinguishable.
In Knox, an assistant prosecutor filed a retirement application with the Public Employees' Retirement System (PERS) after thirty-one years of service with the Union County Prosecutor's Office (UCPO). Knox, supra, slip op. at 2. After his retirement, Knox returned to work as a seasonal employee with UCPO, working twenty hours per week. Id. at 3. Four years later, Knox was informed that, because he failed to observe the thirty-day post-retirement break in service, he was required to return the total amount of pension benefits paid to him during the period of his temporary employment, more than $258,000. Id. at 5.
We reversed, finding that Knox served honorably through thirty years of public service; that he did not seek to abuse or manipulate the pension system; that he followed his employer's advice regarding the effect of his new position on his right to receive pension payments; and that his "honest mistake" of starting a new position sixteen days too soon should not result in the "catastrophic result" that the Department of Treasury demands of him. Id. at 22.
Kochel also involved a penalty requiring repayment of retirement benefits. Kochel served as a salaried township manager and was also a member of the township sewerage authority, for which he received a stipend. Kochel, supra, slip op. at 1. He retired from both positions in June 2007, and began to collect PERS retirement benefits. Ibid. After his retirement, Kochel continued his employment as township manager for approximately three months. Id. at 1-2. After conducting an audit, the Board determined that Kochel did not have a break in service and required him to repay the entire retirement allowance he had received and make contributions to PERS based on his post-retirement earnings. Ibid.
We affirmed the Board's determination requiring Kochel to repay the retirement allowance he received for the months of June, July, and August and compelling him to contribute based on his earnings as township manager, but reversed the Board's decision to compel him to repay the retirement allowance he received after October 1, 2007, finding it "arbitrary and so punitive as to be inconsistent with the remedial purposes of the pension law." Id. at 28. We concluded that the "imposition of a full forfeiture of Kochel's retirement for a year in response to a technical deviation that the Division identified late and after Kochel had resigned . . . [was] arbitrary because it is inconsistent with the Board's mission and the remedial purpose of the pension law." Id. at 32.
Liobe now argues that the Division was bound by Kochel and Knox, and that the determination that Liobe is ineligible for Tier 1 membership was arbitrary, capricious, and unreasonable. We disagree.
The Police Training Act requires "[a] person appointed as an adult . . . corrections officer . . . by the State or county shall satisfactorily complete prior to permanent appointment a basic training course approved by the Police Training Commission." N.J.S.A. 52:17B-68.1(a). N.J.A.C. 17:4-2.6 provides, "an employee who is appointed to a regular classified appointment from a Civil Service list to a PFRS position shall be considered for PFRS enrollment upon successful completion of the police or firefighting training."
Both Knox and Kochel had more than thirty years of service before being subjected to forfeiture of previously distributed retirement benefits. By contrast, Liobe was a new hire who became aware of the PTC training requirements by, at least, July 2010, and knew or should have known that no payroll deductions had been taken for pension contributions from the time he was hired until he completed PTC training. Rather than seeking to avoid the harsh consequences of repayment of previously distributed benefits, as in Knox and Kochel, Liobe seeks the prospective benefit of Tier 1 membership in contravention of N.J.A.C. 17:4-2.6. None of the equities which compelled the results in Knox and Kochel are present here.
We find no reason to disturb the determination of the Board denying Liobe's request to change his PFRS membership from Tier 3 to Tier 1.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION