John Welsh v. Board of Trustees, Police and Firemen's

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0191-14T4

JOHN WELSH,
APPROVED FOR PUBLICATION
Appellant,
January 15, 2016
v. APPELLATE DIVISION

BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,

Respondent.
_______________________________________________

Submitted December 8, 2015 – Decided January 15, 2016

Before Judges Yannotti, St. John, and
Guadagno.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 107244.

Feeley & LaRocca, LLC and The Blanco Law
Firm, LLC, attorneys for appellant (Pablo N.
Blanco, of counsel and on the brief; John D.
Feeley, on the brief).

John J. Hoffman, Acting Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Danielle P. Schimmel, Deputy
Attorney General, on the brief).

The opinion of the court was delivered by

GUADAGNO, J.A.D.
 John Welsh appeals from the August 5, 2014 final

administrative determination of the Board of Trustees (Board) of

the New Jersey Police and Firemen's Retirement System (PFRS),

denying his request to reactivate and merge his former PFRS

pension account with his current PFRS account. We affirm.

The facts are not in dispute. Welsh first enrolled in the

Public Employee's Retirement System (PERS) on November 1, 1997

when he was working as a security guard with Passaic County. On

October 1, 1999, Welsh's job title changed to corrections

officer, and his membership in PERS was transferred to PFRS.

In March 2003, Welsh and another corrections officer were

accused of assaulting an inmate. After a hearing, Welsh was

suspended without pay. In April 2004, Welsh was charged with

third-degree aggravated assault. He resigned by letter dated

April 6, 2004.

Welsh maintained that the Passaic County Sheriff (Sheriff)

and County Prosecutor (Prosecutor) agreed to resolve the

criminal matter with Welsh being admitted into a pre-trial

intervention program without having to make any admission of

wrongdoing. Welsh further claimed that he received assurances

that he would eventually be allowed to return to serve as a

sheriff's officer if he successfully completed the pre-trial

intervention program.

2 A-0191-14T4
 On April 7, 2004, a consent order was entered into with the

Prosecutor, admitting Welsh in the pre-trial intervention

program for a period of six months. The criminal matter was

dismissed at the conclusion of the six-month period, on November

10, 2004.

On December 12, 2004, the Sheriff wrote a letter to the

Prosecutor inquiring as to Welsh's reinstatement. On December

16, 2004, the Prosecutor advised the Sheriff that he did not

recommend Welsh being considered for a position in Passaic

County law enforcement.

Welsh's last PFRS pension contribution before he resigned

was on March 31, 2003. On December 15, 2004, the New Jersey

Division of Pensions and Benefits (Division) sent a letter to

Welsh explaining that his PFRS account would expire two years

after his last pension contribution, and noting an "Account

Expiration Date" of March 31, 2005.

In January 2005, Welsh filed an application with the New

Jersey Department of Personnel (DOP) seeking reemployment with

the Sheriff's Office, and was advised that his name had been

certified to the Sheriff by the DOP as being eligible for

reemployment as a corrections officer.

On June 17, 2005, the Sheriff advised the DOP that the

Sheriff's Office had submitted Welsh's recommendation in error.

3 A-0191-14T4
The Sheriff stated that he did not sign the application, but

instead, a facsimile stamp had been used without his approval.

He also requested the application be rescinded due to the fact

that Welsh voluntarily resigned for disciplinary reasons. On

July 12, 2005, the DOP approved the Sheriff's request and

rescinded Welsh's application.

Welsh appealed to the DOP, and, on December 23, 2005, the

DOP issued a final administrative determination upholding the

removal of Welsh's name from the reemployment list. Welsh

appealed to this court, and we affirmed. We noted that "there

is nothing in the record that disputes the Sheriff's

representation that the submission was not authorized by him,

nor is there anything in the record that would question the fact

that the Sheriff stated that it was not in the best interest of

the Department to re-employ the appellant." In re Varcadipane

and Welsh, No. A-3148-05 (App. Div. Mar. 12, 2007) (slip op. at 8).

Welsh filed a complaint alleging breach of contract and

breach of an implied covenant of good faith against the

Sheriff's Office. On August 13, 2007, Welsh entered into a

settlement agreement with the Sheriff's Office, which provided

that, upon passing a fitness for duty examination, he would be

reemployed as a corrections officer at the same pay rate he held

prior to his resignation. Welsh executed a release that

4 A-0191-14T4
provided "all of [Welsh's] monetary claims for back pay, pension

credits, health benefits, and/or monetary damages as alleged,

are hereby dismissed with prejudice." The agreement further

stated that "[t]here will be no monetary contributions,

payments, or settlement payments to [Welsh], as such [Welsh]

will not receive back pay; pension credits; outstanding medical

bills, or the like." The agreement was filed with the Law

Division on October 16, 2007.

On October 29, 2007, Welsh returned to work and was re-

enrolled in a new PFRS pension account, effective November 1,

2007. On June 9, 2008, the County Pension Administrator

inquired of the Division whether Welsh's former PFRS account

could be reinstated. The Division responded that Welsh's former

PFRS account could not be reinstated because it expired on March

31, 2005, two years after his last pension contribution on March

31, 2003.

On November 1, 2010, Welsh and the Sheriff's Office

executed a rider to the settlement agreement, which amended

Welsh's "date of reinstatement" from October 29, 2007 to January

28, 2005. On August 1, 2011, the Civil Service Commission1

(Commission) granted the Sheriff's Office's request to change

1
On June 30, 2008, a law took effect that abolished the DOP and
transferred all its powers and duties to the Civil Service
Commission.

5 A-0191-14T4
Welsh's reinstatement date to January 28, 2005, but with the

caveat that it was "for salary step placement and seniority-

based purposes only."

In March 2013, the Sheriff's Office requested that the

Division combine Welsh's former and current PFRS accounts,

"thereby recording his service from November 1, 1997 to present

with a break of service between April 6, 2004 [and] January 28,

2005." The County Pension Administrator joined in the request.

On November 7, 2013, the Division denied the request,

concluding that Welsh's prior PFRS account expired on March 31,

2005. The Division noted that Welsh's last pension contribution

was March 31, 2003; he formally resigned on April 6, 2004; and

despite the amended re-hire date, the settlement agreement did

not award any back pay or pension credits between April 3, 2003

and October 29, 2007. The Division advised that Welsh could

withdraw the prior account's funds and "purchase all, or a

portion of, the prior [PFRS] membership under his current PFRS

membership[.]"

Welsh appealed the Division's decision to the Board,

arguing that the Division erred because: (1) he was not seeking

pension credit for the period of the amended reinstatement date

(January 28, 2005) to the day he began working again (October

29, 2007); (2) he never withdrew funds from his former PFRS

6 A-0191-14T4
account; (3) he was only seeking to have the PFRS accounts

merged; and (4) that the Division mistakenly denied his request

because it believed that he was re-hired on October 29, 2007.

After meeting to consider Welsh's appeal, the Board denied

Welsh's request, concluding that he was not reinstated with back

pay and did not receive any service credit between April 1, 2003

and October 29, 2007. Welsh appealed and, on August 5, 2014,

the Board issued a final administrative determination denying

the appeal.

On appeal, Welsh claims that he should be permitted

reinstatement of his original pension account because the Board

failed to recognize that it is permitted to consider equitable

factors to craft a just remedy in these circumstances.

We begin by noting the well-established principles that

guide our review. Our review of an administrative agency

determination is limited. Mazza v. Bd. of Trs., 143 N.J. 22, 25

(1995). We will not upset an agency's factual findings unless

they are "arbitrary, capricious or unreasonable, or . . . lacked

fair support in the evidence[.]" Campbell v. Dep't of Civil

Serv., 39 N.J. 556, 562 (1963). We are not bound by an agency's

legal conclusions or its interpretation of a statute. Mayflower

Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). The party

7 A-0191-14T4
challenging the administrative determination bears the burden of

proof. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).

Welsh claims that because the rider to his settlement

agreement amended his reinstatement date to January 28, 2005,

his current PFRS account should be merged with his former PFRS

account, which expired on March 31, 2005. Welsh further argues

that the nunc pro tunc amendment had the effect of reversing the

expiration of his former PFRS account because it resulted in

shortening his absence from employment to less than two years.

In the alternative, Welsh argues that the Division erred because

it "failed to recognize that it is permitted to consider

equitable factors to craft a just remedy in these

circumstances."

The termination of a PFRS account is governed by N.J.S.A.

43:16A-3, which provides in pertinent part:

(3) Should any member withdraw his
aggregate contributions, or become a
beneficiary or die, or if more than 2 years
have elapsed from the date of his last
contributions to the system, he shall
thereupon cease to be a member.

(4) Should any member resign or be
dismissed from the police or fire service of
the employing agency and not make
application for the return of his aggregate
contributions, the retirement system shall
upon receiving conclusive advice of such
separation, terminate the membership. . . .

[N.J.S.A. 43:16A-3 (emphasis added).]

8 A-0191-14T4
 It is not disputed that Welsh resigned on April 6, 2004,

after being charged with aggravated assault of an inmate and his

employer agreeing that he could leave in good standing. We are

satisfied that his resignation resulted in a termination of the

former PFRS membership under N.J.S.A. 43:16A-3(4).

In addition, Welsh's last pension contribution to his

former PFRS account was made on March 31, 2003, and there were

no contributions made between that time and March 31, 2005.

Welsh received notice that his former PFRS account would expire

on March 31, 2005. After more than two years elapsed with no

pension contributions, his former PFRS account expired pursuant

to N.J.S.A. 43:16A-3(3). See Cologna v. Bd. of Trs., Police and

Firemen's Ret. Sys., 430 N.J. Super. 362, 375 (App. Div. 2013)

(analyzing the legislative history of N.J.S.A. 43:16A-3, which

was adopted after a conditional veto rejecting a proposed

amendment that would have extended the return to service period

from two to three years because the amendment was unnecessarily

broad and would lead to a sharp rise in costs).

There are narrow exceptions to N.J.S.A. 43:16A-3 where a

PFRS account will not terminate. N.J.A.C. 17:1-2.18 is entitled

"Service and salary credit: award of back pay," and provides in

pertinent part:

9 A-0191-14T4
(a) A member who appeals the suspension or
termination of the member's employment and
who, by award or settlement, becomes
entitled to full pay for all or a portion of
that employment for the period of such
suspension or termination shall receive
service credit for the period covered by the
award or settlement provided a full normal
pension and, if applicable, the contributory
group life insurance contribution is
received from the member or is deducted from
the value of the award. The member must
receive full back pay, including normal
salary increases before mitigation and the
contributions will be computed on the base
salaries that the employee would have earned
for the reinstated suspended or terminated
period. In the event that the amount of
back payment, after mitigation, is
insufficient to deduct the value of the
normal pension contributions and, if
applicable, the contributory group life
insurance due, such contribution shall be
paid by the member to the respective
retirement system by certified check or
money order.

(b) If a member waives an award of back
pay, then the member cannot receive service
or salary credit for the period of the
award.

. . . .

(f) For those defined contribution
retirement programs administered by the
Division, the member is not entitled to the
employer contributions for the period of the
award unless the member receives an award
equal to full back pay pursuant to N.J.A.C.
17:1-2.18.

[N.J.A.C. 17:1-2.18.]

10 A-0191-14T4
 Here, the settlement agreement between Welsh and the

Sheriff's Office, and its attached rider altering Welsh's

reinstatement date to January 28, 2005, do not prevent the

former PFRS account from expiring. Welsh's argument that his

"absence from employment was for less than two years, from April

6, 2004 to January 28, 2005" focuses on his adjusted resignation

and reinstatement dates, rather than the date of his last

pension contribution. As we have explained, N.J.S.A. 43:16A-

3(3) is unequivocal that the relevant date for purposes of the

two-year expiration period is the "date of [the member's] last

contributions to the system." Because Welsh failed to make any

contributions to his former PFRS account within two years of his

last contribution date, March 31, 2003, his PFRS membership

expired.

Moreover, Welsh does not qualify for an exception under

N.J.A.C. 17:1-2.18. As noted, the regulation requires that a

"full normal pension . . . contribution is received from the

member or is deducted from the value of the award." N.J.A.C.

17:1-2.18(a). Here, Welsh's settlement agreement expressly

prohibited any back pay or pension credit, and provided that

"all of [Welsh's] monetary claims for back pay, pension credits,

health benefits, and/or monetary damages . . . are hereby

dismissed with prejudice." The terms of the agreement provided

11 A-0191-14T4
that there "will be no monetary contributions, payments, or

settlement payments to [Welsh]" and he "will not receive back

pay; pension credits; outstanding medical bills, or the like."

The 2010 rider did not alter Welsh's disentitlement to back

pay, pension credit, or service credit under the agreement. The

rider only requested that Welsh's date of reinstatement be

changed to January 28, 2005. Further, when the Commission

granted the Sheriff's Office's request to change Welsh's

reinstatement date, it expressly limited the application of the

rider to apply to "salary step placement and seniority-based

purposes only." Therefore, neither the settlement agreement nor

its attached rider prevented the termination of Welsh's former

PFRS account.

Despite the clear intent of the controlling statute and

regulation, Welsh maintains that the Board has "stymied what

Welsh and his employer intended" in the settlement agreement,

and argues that we should disregard these provisions and remand

because the Board should exercise its equitable powers, namely

equitable estoppel, to craft an appropriate remedy in this case.

The doctrine of equitable estoppel is "rarely invoked

against a governmental entity." Middletown Twp. Policemen's

Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J.

361, 367 (2000) (quoting Wood v. Borough of Wildwood Crest, 319

12 A-0191-14T4
N.J. Super. 650, 656 (App. Div. 1999)). The doctrine can be

invoked "where interests of justice, morality and common

fairness clearly dictate that course." Ibid. (quoting Gruber v.

Mayor & Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)). In

Middletown, the Supreme Court explained:

The essential principle of the policy of
estoppel here invoked is that one may, by
voluntary conduct, be precluded from taking
a course of action that would work injustice
and wrong to one who with good reason and in
good faith has relied upon such conduct. An
estoppel . . . may arise by silence or
omission where one is under a duty to speak
or act. It has to do with the inducement of
conduct to action or nonaction. . . . The
repudiation of one's act done or position
assumed is not permissible where that course
would work injustice to another who, having
the right to do so, has relied thereon.

[Ibid. (quoting Summer Cottagers' Ass'n of
Cape May v. City of Cape May, 19 N.J. 493,
503-04 (1955)).]

Welsh relies on our opinions in Sellers v. Board of

Trustees of the Police and Firemen's Retirement System, 399 N.J.

Super. 51 (App. Div. 2008), and Francois v. Board of Trustees,

Public Employees' Retirement System, 415 N.J. Super. 335 (App.

Div. 2010), in arguing that an equitable remedy is appropriate

in this case. In both cases, we applied the doctrine of

equitable estoppel to the actions of New Jersey pension boards.

However, contrary to Welsh's arguments, both cases are

significantly distinguishable because the petitioners in those

13 A-0191-14T4
cases were able to show detrimental reliance on either their

employer's or the pension board's actions.

In Sellers, supra, a thirty-eight-year old dispatcher with

Essex County College left his job in order to take a position as

a firefighter with Bloomfield Township under the mistaken belief

that credit for prior service would exempt him from the

prohibitions in N.J.S.A. 43:16A-3, N.J.A.C. 17:4-2.5, and a

prohibition against hiring and enrolling in PFRS any officer

over thirty-five-years old. 399 N.J. Super. at 52-55.

We noted that changes in the Age Discrimination in

Employment Act, 29 U.S.C.A. § 623(a), triggered the development

of a practice "whereby the Board ha[d] exercised equitable

powers to waive the age requirement on a case-by-case basis[,]"

id. at 55, and that, several years before, the Board permitted

"at least nine individuals to enroll in PFRS . . . despite the

fact they exceeded the maximum age requirement[,]" id. at 57.

We also noted the unique overlap of the statutory scheme at

issue, which required the petitioner to be enrolled in PFRS in

order to be a firefighter, and therefore made the Township's

decision to hire him dependent on the Board's PFRS

determination. Id. at 60-61. We stated "[a] problem arises in a

case, such as this one, where the municipality believes that the

age requirement is met and the Board determines, after the

14 A-0191-14T4
employee has been permanently hired, that the age requirement

has not been met." Id. at 61.

Given that the petitioner left his job to be a firefighter,

and that he was hired and initially approved by the Board, we

remanded the case so that the Board could consider crafting a

solution that took into account the equities of the situation,

including whether "the government failed to 'turn square

corners' with [the petitioner]." Id. at 62. We noted:

People accepting the firefighter positions
in good faith should not be putting their
careers and the financial well-being of
their families in jeopardy by giving up
their current jobs and accepting public
employment only to find out later that they
do not meet the age requirements for the
positions, particularly when all of the
relevant information was available to the
State and municipality before the
commencement of employment.

[Ibid.]

Our decision in Francois is similar. There, the petitioner

was an employee of the New Jersey Economic Development Authority

(NJEDA), and served on "mobility assignment" for a two-year

period as director of the real estate department of the Port

Authority of New York and New Jersey (Port Authority). Francois,

supra, 415 N.J. Super. at 338.

When initially accepting the mobility assignment, and when

it was extended, the petitioner was sent memoranda from the

15 A-0191-14T4
NJEDA that advised that he "may continue to accrue service

credit with the New Jersey State Pension System . . . for

retirement purposes during the term of this assignment." Id. at

341, 343. The facts were "clear that . . . at age fifty-three

and after approximately twenty-seven years of creditable

service . . . [the petitioner] did not want to jeopardize or

sacrifice his pension benefits." Id. at 343.

The petitioner eventually advised the NJEDA that he

intended to retire and join the Port Authority. Id. at 344.

When applying for retirement, the Division did not credit the

petitioner's time on mobility assignment. Id. at 345.

In reversing the Division's decision, we cited Sellers and

explained that the petitioner received written assurances from

the NJEDA before taking the assignment, and that he was

"entitled to presume that he would not be penalized by accepting

the mobility assignment while remaining on the [NJEDA] payroll

and being paid by it." Id. at 353. We explained that there was

no authority that required an agency to obtain the approval of

the Division before making assignments, or gave the Division the

authority to monitor the work assignments of State employees.

Id. at 354. Although we limited the wages eligible for the

petitioner's pension benefits, we concluded that equitable

16 A-0191-14T4
considerations entitled him to service credit for the time spent

on the mobility assignment. Id. at 355-56.

The petitioners in Sellers and Francois both demonstrated

detrimental reliance on express assurances of employment

qualification or pension credit either by their employers or the

pension boards. In this case, however, Welsh has not shown

detrimental reliance, the essential principle undergirding

equitable relief.

Welsh asserts that he and the Sheriff's Office "entered

into a settlement agreement which both believed would result in

Welsh receiving pension credit for his prior service from

November 1, 1997 to August 6, 2004." The express terms of the

agreement, which Welsh and the Sheriff both signed, contradict

this claim. It was an express term of Welsh's release of his

lawsuit against the Sheriff's Office, and of his reemployment

with them, that he "will not receive . . . pension credits[.]"

There is no evidence that Welsh accepted his reinstatement in

reliance on receiving pension credit or that his former PFRS

account remain active.2

2
The only other conditions of Welsh's reinstatement included
passing a fitness for duty examination, an assessment of his
underlying conduct to ensure that he is not a safety threat, and
authorization to return to work from the Prosecutor.

17 A-0191-14T4
 Welsh also argues that the 2010 rider amending his

reinstatement date to January 28, 2005 permitted reinstatement

of his former PFRS account. Again, there is no evidence that

the rider was executed in reliance on receiving pension credit,

or that the rider was meant to change the express terms of the

settlement agreement, which prohibited Welsh from receiving such

credit. There are no assurances in this case that Welsh would

continue receiving pension credit, or that his account would

remain active, after he resigned. The settlement agreement and

rider were executed well after Welsh's PFRS account properly

expired. Neither provided any assurances regarding

reinstatement or merging of his PFRS accounts, nor induced a

course of action by Welsh.

Welsh has not shown with any specificity why justice

requires an equitable remedy. Welsh continues to be employed by

the Sheriff's Office, still has his current PFRS membership

account, and is still entitled to withdraw the funds from his

former PFRS account and purchase his former service for credit

in his current account.

Affirmed.

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