Opinion
DOCKET NO. A-1487-13T1
03-24-2015
RICHARD CLARK, Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent.
Raff & Masone attorneys for appellant (Craig E. Hoogstra, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from the Board of Trustees, Public Employees' Retirement System, Docket No. 543032. Raff & Masone attorneys for appellant (Craig E. Hoogstra, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief). PER CURIAM
Richard Clark appeals from a final decision of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) denying him pension benefits. We affirm.
The pertinent facts are not in dispute. Clark was employed by the City of Bayonne as a laborer beginning in 1980. In 1992, he was promoted to the position of Parking Meter Collector and Repairer. In 1994, Bayonne authorities conducted an investigation that included surveillance of Clark and others. They observed Clark taking coins from his collections and putting them by the fistful into his pocket. Clark was terminated from his position on July 22, 1994, and charged both administratively and by a criminal indictment with official misconduct, theft, and related offenses. On the indictment, Clark was admitted into the Pretrial Intervention Program, see N.J.S.A. 2C:43-12 to -14; R. 3:28, and the criminal charges were dismissed in 1997.
The disciplinary charges were litigated before an Administrative Law Judge (ALJ). After hearing testimony and viewing a surveillance videotape of Clark's actions, the ALJ issued a decision on August 20, 1999, finding that Clark repeatedly stole money from the parking meter collections and recommending his removal from his public employment. On October 7, 1999, the Merit System Board adopted the findings and recommendation of the ALJ and concluded that Clark's termination from employment was justified.
At the time of his termination in July 1994, Clark had sixteen years and nine months of creditable service as a member of PERS. At the age of forty-nine, he was not then eligible for retirement benefits. He applied for a pension in November 2012. In April 2013, the Board notified Clark that he was ineligible for deferred retirement benefits because he had been removed from his employment for official misconduct. Clark requested a hearing, but the Board did not afford him an evidentiary hearing and issued a final decision confirming the denial of retirement benefits.
Clark had purchased some additional service credits upon his employment by Bayonne in 1980.
On appeal, Clark does not raise any viable argument calling into question the Board's decision. Having reviewed the record, we affirm the Board's decision for the reasons stated in the Board's letter-decision of October 17, 2013. We add only a few comments.
N.J.S.A. 43:15A-38 entitles a PERS member to receive deferred retirement benefits if, "after having completed 10 years of service," the member is "separated voluntarily or involuntarily from the service, before reaching service retirement age, and not by removal for cause on charges of misconduct or delinquency . . . ." Clark was removed for cause on a charge of misconduct, and so, he was not entitled to deferred retirement benefits.
Clark argues that the Board should have conducted a hearing because two of his co-workers who were also caught stealing from the parking meters received retirement benefits. Our record does not reveal the circumstances of the co-workers, but the Board argues that their rights were not controlled by the statute we have quoted. The Board has provided records indicating partial forfeiture of the co-workers' pension rights. It argues that the more lenient balancing test of Uricoli v. Board of Trustees of the Police and Firemen's Retirement System, 91 N.J. 62, 77-78 (1982), applied to the rights of the co-workers but that Borrello v. Board of Trustees of the Public Employees' Retirement System, 313 N.J. Super. 75, 77-78 (App. Div. 1998), is the controlling case applicable to Clark's pension rights and required automatic forfeiture of his retirement benefits under N.J.S.A. 43:15A-38.
We cannot determine on this record whether the pension decisions made as to the co-workers were appropriate or not. We can determine, however, that nothing in Clark's record suggests he was treated contrary to the law or otherwise unfairly.
Finally, there was no need for the Board to grant Clark an evidentiary hearing because the facts were not in dispute. See High Horizons Dev. Co. v. State, 120 N.J. 40, 49-50 (1990) (an evidentiary hearing is necessary in an administrative action only if adjudicatory facts are in dispute); In re Farmers' Mut. Fire Assurance Ass'n of N.J., 256 N.J. Super. 607, 618 (App. Div. 1992) (same). Nor is the application of law to those facts truly in dispute. The Board's decision was correct on the facts and the law.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION