NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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
A-0824-18T4 2 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
A-0824-18T4 3 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.
A-0824-18T4 4 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
A-0824-18T4 5 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.
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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-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
A-0824-18T4 2 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
A-0824-18T4 3 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.
A-0824-18T4 4 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
A-0824-18T4 5 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
A-0824-18T4 6 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.'"
A-0824-18T4 7 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
A-0824-18T4 8 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.
A-0824-18T4 9