In Re Hess
25 A.3d 1199
| N.J. Super. Ct. App. Div. | 2011Background
- Hess, a PERS member since 1987 and OIT employee since 2000, pled guilty to two counts of third-degree assault by auto after a DUI crash and received probation and jail terms.
- OIT suspended Hess immediately upon conviction and pursued forfeiture and discipline; PNDA and FNDA were issued, leading to suspension and then removal actions.
- Hess applied for a deferred retirement allowance to become effective December 1, 2019; Board denied the application as unqualified due to termination for cause.
- The Board relied on N.J.S.A. 43:15A-38 and Borrello to hold that deferred retirement could be forfeited when removal for cause is based on misconduct.
- A forfeiture order under N.J.S.A. 2C:51-2 was entered related to the conviction, but Hess did not appeal that specific forfeiture.
- The central question was whether the deferred retirement provision applies when the misconduct leading to removal is unrelated to the employee’s official duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does N.J.S.A. 43:15A-38 permit forfeiture of deferred retirement for off-duty misconduct unrelated to employment? | Hess argues misconduct must relate to employment for forfeiture to apply. | Board argues Borrello allows forfeiture when removal is for cause, regardless of duty-relatedness. | Deferred retirement cannot be forfeited for off-duty, non-work-related misconduct; remand for further consideration. |
| Is Borrello controlling to deny Hess’s deferred retirement? | Hess contends Borrello is distinguishable and does not govern here. | Board treats Borrello as controlling on the forfeiture issue. | Borrello is not controlling for this precise issue; the statute requires a broader, liberally construed analysis. |
| Should Hess's vested deferred retirement be denied given her age and service credit at termination? | Hess was vested and eligible for deferred retirement under liberal statutory construction. | Board concluded she was ineligible due to removal for cause for work-related misconduct. | Vesting and liberal construction favor Hess; denial remanded for proper consideration consistent with this opinion. |
Key Cases Cited
- Masse v. Bd. of Trs., 87 N.J. 252 (1981) (off-duty misconduct cannot automatically forfeit creditable service)
- Procaccino v. State Dep't of Treasury, 87 N.J. 265 (1981) (unrelated-to-employment misconduct may not warrant forfeiture)
- Uricoli v. Bd. of Trs., 91 N.J. 62 (1982) (balancing factors govern forfeiture even where misconduct relates to employment)
- Borrello v. Public Employees' Retirement System, 313 N.J. Super. 75 (App.Div. 1998) (forfeiture under statutory language; referenced as controlling in part)