The opinion of the court was delivered by
Bаsed on his conviction for crimes of moral turpitude the Board of Trustees of the Public Employees’ Retirement System (hereafter PERS) declared appellant’s service as a public employee prior to January 31,1977 “dishonorable” for the purpose of computing pension credit, thus disallowing the credit he had earned for service before that date. The PERS board considered it immaterial that the crimes in question, impairing the morals of a minor, were unrelated to appellant’s public employment as assistant superintendent (foreman) of the Water and Sewer Department of the Borough of Highlands and that appellant was continued in that position after his conviction. The board’s decision is in keeping with case law previously established by this court. Nevertheless, finding that we are not bound by prior decisions of our Supreme Court on this precise issue, we have reexamined the underlying principles and reach a different conclusion.
The board’s determination followed its administrative practice of long standing. It was derived from the principle expressed in Plunkett v. Hoboken Bd. of Pension Comm’rs, 113 N.J.L. 230, 232 (Sup.Ct.1934), aff’d on opinion below, 114 N.J.L. 273 (E. &
Our Supreme Court has not squarely decided the issue presented in this case. Although the general rule was acknowledged without comment by the Supreme Court in Makwinski v. State, supra, the statement in Makwinski was dictum to the extent that it applied to crimes unrelated to public employment. In Makwinski the police chief’s conviction for misconduct in office constituted wrongdoing related to his public employment, and the rule requiring forfeiture of pension rights for a crime of moral turрitude unrelated to one’s employment was not involved.
The rule in question was first formulated in Ballurio v. Castellini, 29 N.J.Super. 383 (App.Div.1954), and was accepted by this court in Gauli, supra. In Ballurio, a street department foreman was suspended from employment because he had been charged with committing an illegal abortion. Prior to the hearing of his removal from employment he filed an application for retirement, but it was not processеd. After he was convicted his dismissal from employment was made final. Holding that
A pension is a bounty springing from the appreciation and graciousness of the sovereign; it is an inducement to conscientious, efficient and honorable service. And its utility would be destroyed if a person who is properly subject to discharge because of guilt of a crime involving moral turpitude can be said to have an indefeasible claim to a pension simply because he has served the required length of time and reached the necessary age and happens to win а headlong race to file his application for retirement before the public authorities can try him on the charges pending against him arising from such crime. [At 389.]
The court then reasoned that Ballurio was deprived of the privilege of obtaining a pension from the time his employment was suspended until the criminal proсeedings terminated and his dismissal became final. Since he was properly removed from office before his pension was granted, the court held he was not entitled to the pension. In Gauli, supra, this court cited Ballurio for the principle that the commission of a crime of moral turpitude unrelated to public employment forfeits one’s pension rights, but the case was remanded to determine whether unlawful possession of a weapon constituted such a crime.
The cases which served as the apparent source of the rule and introduced the concept of moral turpitude as a disqualifying factor, Plunkett v. Hoboken Bd. of Pension Comm’rs, supra, 113 N.J.L. at 233 and McFeely v. Hoboken Bd. of Pension Comm’rs, 1 N.J. 212, 218 (1948), both involved crimes related to the pensionеr’s public employment. In Plunkett the crime was embezzlement of money from the Hoboken Firemen’s Relief Association by a fire department employee, constituting “misconduct, in violation of departmental rules and regulations.” 113 N.J.L. at 231. McFeely involved a chief of police who was indicted for nonenforcement of gambling laws and conspiracy to “oppress” and “persecute” other members of the police force. 1 N.J. at 217. Plunkett held that pension rights do not become “vested” merely by the passage of years of service. 113 N.J.L. at 233. The court reasoned that the rule was needed to prevent misconduct after an employee had attаined the requisite minimum credits for a pension. The McFeely court held that there was an implied power to suspend action on a pension claim
An employee may be subject to discharge for conduct unbecoming a public employee, such as in Ballurio v. Castellini, supra, even if the wrongful conduct does not touch upon the duties of the public office оr position involved. See N.J.S.A. 2A:135-9. Confidence in government could be shaken if a public employee in a sensitive position is continued in office after being convicted of a crime of moral turpitude simply because the crime was unrelated to public employment. The question here is whether a crime of morаl turpitude should work a forfeiture of pension rights acquired through years of faithful and honorable service. In Ballurio the court found that the employee’s discharge from employment took effect before the pension had been granted. But Mount v. Pub. Employees’ Retirem. Sys. Trustees, 133 N.J.Super. 72 (App.Div.1975), held that a pension that had been granted could be suspended upon the discovery of criminal activity related to and committed in the course of the pensioner’s prior public employment. We agree that the issue should not turn on the timing of the pension application. However, in our view a public employee who has earned pension rights through years of faithful public servicе should receive those rights even if he has been derelict in his private life. Here punishment for the crime has been determined by standards of criminal justice. To require the forfeiture of pension rights in addition to the criminal sanction is a harsh and arbitrary penalty
Here, appellant, born in 1925, had been employed by the Borough of Highlands since 1947 and had almost 30 years of pension credit when he entered guilty pleas in 1977 to two crimes of impairing the morals of a minor contrary to N.J.S.A. 2A:96-3. Appellant had been suspended temporarily for three weeks in 1975 after the charges were filed, but he was reinstated and has continued in employment.
Mr. Masse is a faithful servicer in the service of the Borough of Highlands, is concerned much. He performs vеry well in many cases under extreme conditions. With his responsibility, he must be able to respond with very little notice. He oversees a department that has had at one time as many as seven people and [the] fact that we have found no grounds in that time for any disciplinary measures, whether he be reprimanded or anything else, says a lot. I think from my observation Mr. Masse is an excellent employee.
He added that appellant would be continued in employment until he elects to retire.
The crimes for which appellant was indicted involved four young girls aged 10,13,15 and 16. The first two counts charged him with showing three of the children pornographic рictures on March 28, 1975. The next two counts charged him with touching the breasts of the 15-year-old girl and masturbating in her presence. The remaining counts, including the seventh count, charged him with forcing the 15 and 16-year-old girls to masturbate him and asking the 13-year-old girl to touch his genital organs (the ninth count). He entered guilty pleas to the seventh and ninth cоunts. He was given concurrent suspended one to three-year prison terms, placed on probation for two years on condition that he receive psychiatric counselling, and fined
N.J.S.A. 43:1-2 provides that no “pension or subsidy” shall be paid by the State or any municipality or school district to any person “for the period during which he is confined in a penal institution as a result of conviction of a crime involving moral turpitude, . . . .” It provides for the forfеiture of pension payments during such period of incarceration, but it permits payments to be made in the discretion of a pension board to a needy mother, father, wife or minor child of such pensioner. While this statute was mentioned briefly in Fromm v. Police and Firemen’s Sys. Bd. of Directors, 81 N.J.Super. 138, 145 (App.Div.1963), and Ballurio v. Castellini, supra, 29 N.J.Super. at 394, its implications have not been analyzed in any of the cases dealing with this subject. The legislative intent is to provide for the suspension and forfeiture of pension payments on conviction of a crime of moral turpitude during the period of confinement only. This is made clear by the language in N.J.S.A. 43:1-2 that specifies that “for the period during which he is confined to a penal institution” the pensioner “shall lose all right to so much pension or subsidy as he would receive or be entitled to receive had he not been so confined; . . . .” (Emphasis supplied.) Thus, a court-made rule calling for the forfeiture of pension rights in cases not specified by the Legisla
The interplay of judicial and legislative action makes it difficult to analyze the rules in other states; however, some courts have applied the legislated right to retirement literally and have refused to read forfeiture provisions into the law on their own initiative, even when the employee has been convicted of a crime. Daigle v. McLaughlin, 193 F.Supp. 902 (D.D.C.1961); Willens v. Commission on Judicial Qualifications, 10 Cal.3d 451, 110 Cal.Rptr. 713,
We ought not go too far in imposing civil sanctions for immoral, criminal conduct that can be sufficiently punished in a criminal setting. Criminal conduct varies greatly in seriousness, and our sense of morality may not be a fair guide to determine which crimes require forfeiture of a pension and which do not. Cf. Makwinski v. State, supra. The rule applied by the PERS board, which has grown casually out of a few cases and little analysis, is inherently arbitrary and may often be unreasonable. It is inconsistent with the view that pension credits represent to some extent deferred wages for services rendered. Watt v. Franklin Boro., 21 N.J. 274, 279 (1956); Spina v. Consolidated Police and Firemen’s Pension Fund Comm’n, 41 N.J. 391, 401-402 (1964). See, also, N.J.S.A. 2A:152-2 (saved from repeal by the Code of Criminal Justice, N.J.S.A. 2C:98-3): “No conviction
Accordingly, we reverse and reinstate all of appellant’s pension credits for his years of service.
Notes
Before the hearing officer, the parties stipulated in part:
On February 17, 1977 the Petitioner and his employer filed an application for early retirement. The Petitioner’s part of the application was not dated, not signed and not notarized. The employer’s part was signed with the date of February 16, 1977.
By a letter dated July 7, 1977 Petitioner notified the Board of Trustees that he wished to withdraw his application for retirement.
The Board of Trustees at its December 14, 1977 meeting made a determination that any service rendered by Petitioner for the Borough of Highlands prior to January 31, 1977 was dishonorable. The Board further decided that any service rendered after February 1, 1977 would be considered honorable service. Petitioner was so notified by a letter dated December 21, 1977.
Petitioner does not question the right of the board to conduct the hearing and issue its determination in the absence of a pending request for retirement benefits, and we express no opinion on the issue.
See Makwinski v. State, supra, 76 N.J. at 92, where the court noted that Makwinski’s sentence was a $250 fine without probation, but revocation of pension rights could cost him the loss of $150,000. Judge Conford, concurring, in an opinion in which Justice Schreiber joined, stated that the punishment “ ‘does not fit the crime’ — or at least not to the extent that we should
Citing N.J.S.A. 2A: 135-9, the Attorney General questions whether appellant was properly continued in his appointive position as distinguished from his new title of “foreman.” We express no opinion on this subject since it is not before us.