NOT FOR PUBLICATION WITHOUT THE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-2324-17T2
JEFFREY W. DESIMONE,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
_____________________________
Submitted May 1, 2019 – Decided May 15, 2019
Before Judges Currier and Mayer.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. 3-52748.
Kenneth T. Palmer, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jeffrey D. Padgett, Deputy
Attorney General, on the brief).
PER CURIAM
Petitioner Jeffrey W. DeSimone appeals from a December 12, 2017 final
administrative determination issued by respondent Board of Trustees of the
Police and Firemen's Retirement System (Board), denying his application for
deferred retirement pension benefits. The Board denied DeSimone's benefits
because he was terminated from his employment as a police officer with the
Township of Brick (Township) for conduct unbecoming a public employee and
other reasons. We affirm.
After having been employed for thirteen years as a Township police
officer,1 DeSimone was terminated from his position based on charges of
misconduct or delinquency in accordance with N.J.S.A. 43:16A-11.2.
DeSimone was unsuccessful in challenging his termination and seeking
reinstatement to the police department.
After he was terminated, DeSimone claimed he spoke to an analyst at the
Division of Pensions and Benefits (pension board). DeSimone alleged the
analyst explained his pension was secure because he was not involved in any
criminal conduct. The analyst sent documents to DeSimone, confirming his
1
DeSimone had other service credits giving him just short of fifteen years in
the pension system.
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pension contributions were reallocated to the deferred retirement pension plan.
According to DeSimone, he relied on the information provided by the pension
board analyst and decided to leave his contributions in the pension fund rather
than investing the money elsewhere. DeSimone also claimed he spoke to
various pension board personnel and checked the pension benefit website over
the years to confirm his pension status. 2
On March 11, 2017, DeSimone submitted an application requesting his
deferred retirement pension benefits. In response, the Township sent documents
to the Board, explaining DeSimone's dismissal from the police department. In
August 2017, the Board denied the application for deferred retirement pension
benefits. The Board held DeSimone was terminated for cause by the Township
and was thus ineligible for deferred retirement pension benefits in accordance
with N.J.S.A. 43:16A-11.2.
DeSimone appealed the Board's denial and requested an administrative
hearing before the Office of Administrative Law (OAL). The Board did not
2
DeSimone supports his pension status with a self-serving September 15, 2017
letter to the Board. However, DeSimone submitted no certification or affidavit
declaring the information contained in the letter was based on competent or
admissible evidence. See R. 1:6-6 (requiring "facts not appearing of record or
not judicially noticeable, the court may hear it on affidavits made on personal
knowledge, setting forth only facts which are admissible in evidence to which
the affiant is competent to testify").
A-2324-17T2
3
refer the matter to the OAL because there were no issues of disputed fact
requiring a hearing.
On December 12, 2017, the Board issued a final administrative
determination, finding DeSimone ineligible for deferred retirement pension
benefits. Relying on N.J.S.A. 43:16A-11.2, the Board held "[r]emoval for cause
on charges of misconduct or delinquency automatically disqualifie[d]
[DeSimone] from eligibility for a [d]eferred retirement." The Board advised
DeSimone that he was entitled to the return of his accumulated pension
contributions.
On appeal, DeSimone claims the Board was equitably estopped from
denying deferred retirement pension benefits based on the information from the
pension board that he was eligible for such benefits.
Our review of an administrative agency action is limited due to the
"'expertise and superior knowledge' of an agency in its specialized field."
Francois v. Bd. of Trs., 415 N.J. Super. 335, 347 (App. Div. 2010) (quoting
Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223 (2009)).
We will uphold an agency's decision "unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair support in the record."
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4
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)
(quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).
The doctrine of equitable estoppel applies in situations where "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." Summer Cottagers' Ass'n of Cape May v. City of
Cape May, 19 N.J. 493, 503-04 (1955). However, "equitable estoppel is rarely
invoked against the government . . . ." Bridgewater-Raritan Educ. Ass'n v. Bd.
of Educ., 221 N.J. 349, 364 (2015) (quoting In re Johnson, 215 N.J. 366, 386
(2013)). In the limited circumstances where the doctrine has been applied in a
pension case, the petitioner "demonstrated detrimental reliance on express
assurances of employment qualification or pension credit either by their
employer[] or pension board[]." Welsh v. Bd. of Trs., Police & Firemen's Ret.
Sys., 443 N.J. Super. 367, 379 (App. Div. 2016).
Here, the doctrine of equitable estoppel cannot be invoked by DeSimone
since he failed to prove detrimental reliance. At best, DeSimone claims he was
provided information by the pension board regarding deferred retirement
pension benefits after his termination. However, he lacks any competent
evidence of his communications with the pension board. Nor does the record
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5
indicate the pension board was aware of the basis for DeSimone's departure from
the police department. Absent knowledge of the reason for DeSimone's
termination, the information provided by the pension board was accurate.
DeSimone knew he was dismissed for misconduct or delinquency under N.J.S.A.
43:16A-11.2, negating any good faith basis for his reliance on information from
the pension board.
Further, DeSimone's reliance on periodic inquiries directed to the pension
board and pension website confirming his pension status is unavailing. The
computer-generated pension information is a ministerial clerical task completed
without any legal analysis of whether DeSimone was disqualified from receipt
of pension benefits for any reason. The pension board did not engage in conduct
amounting to any misrepresentation because the pension board was unaware
DeSimone lost his job for conduct unbecoming a public employee until after
DeSimone applied for deferred retirement pension benefits.
Having reviewed the record, the Board's decision denying DeSimone's
deferred retirement benefits was not arbitrary or capricious.
Affirmed.
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