NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1522-22
DULCE VIEIRA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. _________________________
Submitted April 8, 2024 – Decided April 30, 2024
Before Judges Marczyk and Chase.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx7581.
Goldman Davis Krumholz & Dillon PC, attorneys for appellant (Kristen Welsh Ragon, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Porter Ross Strickler, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Dulce Vieira appeals from the December 8, 2022 final
administrative determination by the Board of Trustees ("Board") of the Public
Employees' Retirement System ("PERS") denying her petition to remain in her
PERS Tier 1 membership account. We affirm.
I.
On July 1, 2004, petitioner was enrolled in PERS when she was hired as
a library assistant for Boonton Township. On February 1, 2016, she started
working as a library assistant for Roxbury Township, at which time her PERS
membership transferred to Roxbury. On July 6, 2019, petitioner resigned from
her position at Roxbury.
In October 2018, prior to resigning from Roxbury, petitioner had applied
for a position with the Department of Environmental Protection ("DEP"). She
was initially scheduled for an interview on March 16, 2020. However, because
of the COVID-19 pandemic, the interview was canceled and not rescheduled
until May 2021. She was ultimately hired by the DEP and commenced working
at her new position on September 25, 2021. Petitioner was subsequently
A-1522-22 2 enrolled in a new PERS Tier 5 membership account. 1 The Assistant Director for
the Division of Human Resources at the DEP contacted the Division of Pensions
and Benefits ("Division") explaining that petitioner had been scheduled for an
interview in March 2020, but due to the COVID-19 pandemic, the DEP did not
resume hiring until 2021. As a result, her employment was delayed for fourteen
months. The Assistant Director further indicated that had petitioner been
interviewed as originally intended, she would have been hired no later than May
2020, within the two-year window of her last pension contribution, thereby
reactivating her Tier 1 PERS account.
In May 2022, the Division advised petitioner that her Tier 1 membership
had expired on June 30, 2021, pursuant to N.J.S.A. 43:15A-7(e).2 She was
further advised she was vested in her Tier 1 PERS account and was "entitled to
a pension retirement, but cannot continue [her] membership in that account."
1 Tier 5 memberships, which are financially less advantageous than Tier I memberships, apply to state employees enrolled after June 28, 2011. N.J.S.A. 43:15A-7. 2 Petitioner's last pension contribution to her PERS account was on June 30, 2019. Because she did not hold PERS-covered employment for two years following her resignation from Roxbury, her PERS account expired on June 30, 2021.
A-1522-22 3 Petitioner was further advised a new PERS account had been established in
response to the application submitted by the DEP.
Petitioner appealed the Division's determination to the Board. She argued
that if the DEP had conducted its original interview in March 2020, she would
have been hired and resumed her PERS-covered employment prior to the June
30, 2021 expiration of her PERS Tier 1 account. Petitioner further argued she
had a conditional offer of employment within the two-year period, even though
she did not commence employment with the DEP until September 2021. The
Board denied her request, and she appealed the Board's determination.
On December 8, 2022, the Board issued its final administrative
determination. The Board held petitioner's inactive membership in PERS
expired on June 30, 2021, pursuant to N.J.S.A. 43:15A-7(e). The Board further
noted that although petitioner received an offer of employment within two years
of her last pension contribution, she did not return to service until September
25, 2021—beyond the two-year limitation period set forth at N.J.S.A. 43:15A-
7(e). Accordingly, the Board denied her request to extend the expiration of her
original PERS account beyond the two-year limitation period under N.J.S.A.
43:15A-7(e).
A-1522-22 4 The Board further noted, pursuant to N.J.S.A. 43:15A-8, that petitioner
was not entitled to keep her Tier 1 PERS membership open for a period of ten
years because she voluntarily resigned from her position at Roxbury, and she
was not "discontinued" as contemplated by a plain reading of the statute. The
Board noted, under Cologna v. Board of Trustees, Police & Firemen's
Retirement System, that "discontinued from service" means "discontinued by
the employer," and that N.J.S.A. 43:15A-8(a) is limited to a situation where an
employee has been involuntarily terminated from service due to a layoff or
workforce reduction initiated by the employer. 430 N.J. Super. 362, 372 (App.
Div. 2013). This appeal followed.
II.
Petitioner contends the Board "strictly interpreted" N.J.S.A. 43:15A-7(e)
and in doing so failed to employ the principles of equity which would have
permitted her to maintain her Tier 1 status. She argues that after she resigned
from Roxbury, she diligently pursued reemployment in the public sector.
However, her efforts were impacted by the COVID-19 pandemic, which caused
a delay in attaining her current position. She maintains the Board erred in failing
to toll the two-year membership period under N.J.S.A. 43:15A-7(e). She asserts
that pension statutes should be construed liberally in favor of an employee.
A-1522-22 5 James v. Bd. of Trs., 323 N.J. Super. 100, 109-10 (App. Div. 1999), rev'd on
other grounds, 164 N.J. 396 (2000) (citing Steinman v. Dep't of Treasury, 116
N.J. 564, 572-73 (1989)).
Petitioner argues the Board failed to consider the impact of COVID-19 on
her ability to meet the two-year statutory timeframe. She concedes that no
executive order "expressly authorized a broad expansion of statutory PERS
membership criteria" because of the COVID-19 pandemic, but she references
various executive orders issued by the Governor and omnibus orders issued by
our Supreme Court, asserting we should toll the time period in N.J.S.A. 43:15A-
7(e). She argues there were "practical impossibilities" which prevented her from
being reemployed during the two-year period set forth in the statute.
Alternatively, petitioner argues she was eligible, under N.J.S.A. 43:15A-8,
to obtain new employment within ten years after leaving Roxbury because she
left through no fault of her own. She contends she was essentially
"constructively discharged" because the circumstances at her work had changed.
Specifically, her hours had been reduced from thirty-five hours per week as a
full-time employee to twenty hours per week, and she also lost her medical
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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-1522-22
DULCE VIEIRA,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
Respondent-Respondent. _________________________
Submitted April 8, 2024 – Decided April 30, 2024
Before Judges Marczyk and Chase.
On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx7581.
Goldman Davis Krumholz & Dillon PC, attorneys for appellant (Kristen Welsh Ragon, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Porter Ross Strickler, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Dulce Vieira appeals from the December 8, 2022 final
administrative determination by the Board of Trustees ("Board") of the Public
Employees' Retirement System ("PERS") denying her petition to remain in her
PERS Tier 1 membership account. We affirm.
I.
On July 1, 2004, petitioner was enrolled in PERS when she was hired as
a library assistant for Boonton Township. On February 1, 2016, she started
working as a library assistant for Roxbury Township, at which time her PERS
membership transferred to Roxbury. On July 6, 2019, petitioner resigned from
her position at Roxbury.
In October 2018, prior to resigning from Roxbury, petitioner had applied
for a position with the Department of Environmental Protection ("DEP"). She
was initially scheduled for an interview on March 16, 2020. However, because
of the COVID-19 pandemic, the interview was canceled and not rescheduled
until May 2021. She was ultimately hired by the DEP and commenced working
at her new position on September 25, 2021. Petitioner was subsequently
A-1522-22 2 enrolled in a new PERS Tier 5 membership account. 1 The Assistant Director for
the Division of Human Resources at the DEP contacted the Division of Pensions
and Benefits ("Division") explaining that petitioner had been scheduled for an
interview in March 2020, but due to the COVID-19 pandemic, the DEP did not
resume hiring until 2021. As a result, her employment was delayed for fourteen
months. The Assistant Director further indicated that had petitioner been
interviewed as originally intended, she would have been hired no later than May
2020, within the two-year window of her last pension contribution, thereby
reactivating her Tier 1 PERS account.
In May 2022, the Division advised petitioner that her Tier 1 membership
had expired on June 30, 2021, pursuant to N.J.S.A. 43:15A-7(e).2 She was
further advised she was vested in her Tier 1 PERS account and was "entitled to
a pension retirement, but cannot continue [her] membership in that account."
1 Tier 5 memberships, which are financially less advantageous than Tier I memberships, apply to state employees enrolled after June 28, 2011. N.J.S.A. 43:15A-7. 2 Petitioner's last pension contribution to her PERS account was on June 30, 2019. Because she did not hold PERS-covered employment for two years following her resignation from Roxbury, her PERS account expired on June 30, 2021.
A-1522-22 3 Petitioner was further advised a new PERS account had been established in
response to the application submitted by the DEP.
Petitioner appealed the Division's determination to the Board. She argued
that if the DEP had conducted its original interview in March 2020, she would
have been hired and resumed her PERS-covered employment prior to the June
30, 2021 expiration of her PERS Tier 1 account. Petitioner further argued she
had a conditional offer of employment within the two-year period, even though
she did not commence employment with the DEP until September 2021. The
Board denied her request, and she appealed the Board's determination.
On December 8, 2022, the Board issued its final administrative
determination. The Board held petitioner's inactive membership in PERS
expired on June 30, 2021, pursuant to N.J.S.A. 43:15A-7(e). The Board further
noted that although petitioner received an offer of employment within two years
of her last pension contribution, she did not return to service until September
25, 2021—beyond the two-year limitation period set forth at N.J.S.A. 43:15A-
7(e). Accordingly, the Board denied her request to extend the expiration of her
original PERS account beyond the two-year limitation period under N.J.S.A.
43:15A-7(e).
A-1522-22 4 The Board further noted, pursuant to N.J.S.A. 43:15A-8, that petitioner
was not entitled to keep her Tier 1 PERS membership open for a period of ten
years because she voluntarily resigned from her position at Roxbury, and she
was not "discontinued" as contemplated by a plain reading of the statute. The
Board noted, under Cologna v. Board of Trustees, Police & Firemen's
Retirement System, that "discontinued from service" means "discontinued by
the employer," and that N.J.S.A. 43:15A-8(a) is limited to a situation where an
employee has been involuntarily terminated from service due to a layoff or
workforce reduction initiated by the employer. 430 N.J. Super. 362, 372 (App.
Div. 2013). This appeal followed.
II.
Petitioner contends the Board "strictly interpreted" N.J.S.A. 43:15A-7(e)
and in doing so failed to employ the principles of equity which would have
permitted her to maintain her Tier 1 status. She argues that after she resigned
from Roxbury, she diligently pursued reemployment in the public sector.
However, her efforts were impacted by the COVID-19 pandemic, which caused
a delay in attaining her current position. She maintains the Board erred in failing
to toll the two-year membership period under N.J.S.A. 43:15A-7(e). She asserts
that pension statutes should be construed liberally in favor of an employee.
A-1522-22 5 James v. Bd. of Trs., 323 N.J. Super. 100, 109-10 (App. Div. 1999), rev'd on
other grounds, 164 N.J. 396 (2000) (citing Steinman v. Dep't of Treasury, 116
N.J. 564, 572-73 (1989)).
Petitioner argues the Board failed to consider the impact of COVID-19 on
her ability to meet the two-year statutory timeframe. She concedes that no
executive order "expressly authorized a broad expansion of statutory PERS
membership criteria" because of the COVID-19 pandemic, but she references
various executive orders issued by the Governor and omnibus orders issued by
our Supreme Court, asserting we should toll the time period in N.J.S.A. 43:15A-
7(e). She argues there were "practical impossibilities" which prevented her from
being reemployed during the two-year period set forth in the statute.
Alternatively, petitioner argues she was eligible, under N.J.S.A. 43:15A-8,
to obtain new employment within ten years after leaving Roxbury because she
left through no fault of her own. She contends she was essentially
"constructively discharged" because the circumstances at her work had changed.
Specifically, her hours had been reduced from thirty-five hours per week as a
full-time employee to twenty hours per week, and she also lost her medical
benefits. Petitioner relies on Mancini v. Township of Teaneck for the proposition
A-1522-22 6 that a withdrawal of benefits formerly provided to an employee may constitute
an adverse employment action. 349 N.J. Super. 527, 564-65 (App. Div. 2002).
Our role in reviewing the decision of an administrative agency is limited.
In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison,
81 N.J. 571, 579 (1980)). We accord a strong presumption of reasonableness to
an agency's exercise of its statutorily delegated responsibility and defer to its
fact-finding. City of Newark v. Nat. Res. Council in Dep't of Env't Prot., 82
N.J. 530, 539 (1980); Utley v. Bd. of Rev., Dep't of Lab., 194 N.J. 534, 551
(2008). We will not upset the determination of an administrative agency absent
a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair
support in the evidence; or that it violated legislative policies. Lavezzi v. State,
219 N.J. 163, 171 (2014); Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562
(1963).
On questions of law, our review is de novo. In re N.J. Dep't of Env't Prot.
Conditional Highlands Applicability Determination, Program Int. No. 435434 ,
433 N.J. Super. 223, 235 (App. Div. 2013) (citing Russo v. Bd. of Trs., Police
& Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). We are "in no way bound by
the agency's interpretation of a statute or its determination of a strictly legal
issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
A-1522-22 7 In determining whether agency action is arbitrary, capricious, or
unreasonable, a reviewing court must examine:
(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 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.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]
"The party challenging the agency action has the burden to show that the
administrative determination is arbitrary, capricious or unreasonable." In re
Renewal TEAM Acad. Charter Sch., 247 N.J. 46, 73-74 (2021) (citing In re Att'y
Gen. L. Enf't Nos. 2020-5 and 2020-6, 246 N.J. 462 (2021)).
It is a long-standing proposition that pension statutes "should be liberally
construed and administered in favor of the persons intended to be benefited
thereby." Geller v. Dep't of Treasury, 53 N.J. 591, 597-98 (1969). However,
this liberality is to be applied when the employee is eligible for benefits, "but
eligibility is not to be liberally permitted." Smith v. Dep't of Treasury, Div. of
Pensions & Benefits, 390 N.J. Super. 209, 213 (App. Div. 2007). Rather, in
determining eligibility, "applicable guidelines must be carefully interpreted so
A-1522-22 8 as not to 'obscure or override considerations of . . . a potential adverse impact
on the financial integrity of the [f]und.'" Ibid. (alteration in original) (quoting
Chaleff v. Tchrs.' Pension & Annuity Fund Trs., 188 N.J. Super. 194, 197 (App.
Div. 1983)).
PERS is governed by N.J.S.A. 43:15A-1 to -161. N.J.S.A. 43:15A-7(e)
provides: "Membership of any person in the [PERS] retirement system shall
cease if [they] shall discontinue [their] service for more than two consecutive
years." Petitioner does not dispute she discontinued her service for more than
two consecutive years after she made her last pension contribution to her Tier 1
PERS account on June 30, 2019. She did not commence her new position with
the DEP until September 25, 2021—beyond the time period in N.J.S.A.
43:15A-7(e). We conclude there is no basis to expand the timeframe set forth
in N.J.S.A. 43:15A-7(e), notwithstanding the COVID-19 pandemic. Petitioner
has not cited to any controlling authority where equitable principles have been
applied in an analogous situation. The Legislature could have enacted
exceptions to the statute to address issues arising under N.J.S.A. 43:15A-7(e) as
a result of the COVID-19 pandemic. However, it did not do so. In the absence
of such statutory amendments, we are constrained to affirm the Board's decision.
Petitioner also relies on N.J.S.A. 43:15A-8(a) which provides:
A-1522-22 9 If a member of the retirement system has been discontinued from service without personal fault or through leave of absence granted by an employer or permitted by any law of this State and has not withdrawn the accumulated member's contributions from the retirement system, the membership of that member may continue, notwithstanding any provisions of this act if the member returns to service within a period of [ten] years from the date of discontinuance from service.
N.J.S.A. 43:15A-8(a) is a "discrete and limited exception," Del Pomo v. Board
of Trustees, Public Employees' Retirement System, 252 N.J. Super. 430, 433
(App. Div. 1991), to the general rule that should be "narrowly construed,"
Petition of Singer Asset Finance Co., 314 N.J. Super. 116, 121 (App. Div. 1998).
While petitioner was dissatisfied with her reduction in hours, she was not
involuntarily terminated from service due to a layoff or workforce reduction
initiated by her employer. In Lally v. Public Employees' Retirement System,
the PERS Board interpreted N.J.S.A. 43:15A-8(a) as being confined to
circumstances where an employee is on an approved leave of absence or their
employer "terminates through no fault of [their] own (layoff, abolishment of
position)." 246 N.J. Super. 270, 272 (App. Div. 1991). We affirmed, holding
that because Lally left her employment when her political term expired, she was
not "not laid off, nor was her position abolished." Ibid. Petitioner here was also
A-1522-22 10 not laid off and her position was not abolished. Accordingly, she is not entitled
to the protections of N.J.S.A. 43:15A-8(a).
Petitioner does not contest that she voluntarily resigned from her
employment with Roxbury, and there is no suggestion Roxbury sought to
terminate her employment. At best, she claims she was "constructively
discharged" because of the reduction in her hours, which she characterizes as an
"adverse employment action," relying on Mancini. 349 N.J. Super. at 565.
Petitioner's reliance on Mancini is misplaced. The facts and allegations in that
matter bear no resemblance to this case. Mancini involved a sexual harassment
and retaliation action under the Law Against Discrimination. Id. at 534. Here,
there is no suggestion petitioner's reduction in hours at Roxbury was at all
influenced by any improper motives. Rather, she simply alleges the reduction
in hours was some type of adverse employment action resulting in her
constructive discharge. We are unconvinced. As noted, petitioner was not
"discontinued from service" or terminated by a layoff or abolishment of her
position. Accordingly, the Board did not err in finding she voluntarily resigned
and was not entitled to extend her Tier 1 PERS membership.
We are also unconvinced by petitioner's equity-related arguments. "Here,
as in all cases, equity follows the law." Berg v. Christie, 225 N.J. 245, 280
A-1522-22 11 (2016). A pension member cannot obtain an equitable remedy unavailable under
applicable statutory law. Ibid. "When positive statutory law exists, an equity
court cannot supersede or abrogate it." In re Quinlan, 137 N.J. Super. 227, 261
(Ch. Div. 1975), modified and remanded on other grounds, 70 N.J. 10 (1976).
Petitioner cannot invoke an equitable doctrine to override an unambiguous
statute. Berg, 225 N.J. at 280. Despite the DEP's delays in conducting her
interview, we are bound by the clear language of N.J.S.A. 43:15A-7(e).
Petitioner was not hired within the statutorily prescribed timeframe and ,
therefore, was unable to continue her membership as a Tier I PERS member.
The Board's decision is supported by sufficient credible evidence in the
record as a whole. R. 2:11-3(e)(1)(D). To the extent we have not addressed any
of petitioner's remaining arguments, we find they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1522-22 12