NOT FOR PUBLICATION WITHOUT THE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-3115-17T4
MARY LOU FORSELL,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,
Respondent-Respondent.
Submitted February 25, 2019 – Decided March 20, 2019
Before Judges Messano and Rose.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury, TPAF No. 1-447554.
Bergman & Barrett, attorneys for appellant (Michael T.
Barrett, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Melissa Bayly, Deputy Attorney
General, on the brief).
PER CURIAM
Petitioner Mary Lou Forsell appeals from a February 2, 2018 final agency
decision of the Board of Trustees (Board) of the Teachers' Pension and Annuity
Fund (TPAF), denying her application for deferred retirement benefits. We
affirm.
Because the facts pertinent to the Board's decision are wholly undisputed
and set forth in its cogent written decision, we will not discuss the evidence in
detail. In sum, petitioner was enrolled in the TPAF in 1994, when she initially
was hired as a teacher by the Montgomery Township Board of Education.
Thereafter, she was transferred to the West Windsor-Plainsboro Regional
School District (Regional School District), where she worked as a computer
teacher.
In 2011, the Regional School District's board of education filed
disciplinary charges against petitioner, contending she had "permitted or
otherwise allowed inappropriate photographs to be displayed in her
classroom[,]" publically discussed a student's financial circumstances, and made
disparaging remarks about special education students. The matter was referred
to an administrative law judge (ALJ). Nine witnesses, including petitioner,
testified at the three-day hearing, and the parties entered numerous documents
A-3115-17T4
2
into evidence. Following the hearing, the ALJ determined the Regional School
District established charges of unbecoming conduct, failure to respect students'
privacy rights and lack of professionalism. The ALJ recommended petitioner's
removal. On January 9, 2012, the Commissioner of Education (Commissioner)
adopted the ALJ's recommendation. Consequently, she was removed from her
tenured teaching position on January 13, 2012. Petitioner did not appeal the
Commissioner's decision. 1
On October 17, 2016, petitioner applied for a retirement allowance.
Because she had amassed seventeen years and one month of service with the
TPAF system, but was less than sixty years old, petitioner applied for deferred
retirement benefits pursuant to N.J.S.A. 18A:66-36.2 The matter was referred
1
On July 25, 2013, the State Board of Examiners suspended petitioner's
teaching certificates for two years, which was affirmed by the Commissioner on
March 5, 2014. Petitioner did not appeal the Commissioner's decision.
2
Pertinent to this appeal, N.J.S.A. 18A:66-36(b) provides (emphasis added):
Should a member of the [TPAF], after having
completed 10 years of service, be separated . . .
involuntarily from the service, before reaching service
retirement age, and not by removal for conduct
unbecoming a teacher or other just cause . . . such
person may elect to receive, in lieu of the payment . . .
[a] deferred retirement allowance beginning at age 60.
A-3115-17T4
3
to the Board, which ruled petitioner was statutorily ineligible for deferred
retirement benefits because she had been "removed for cause directly related to
her employment." Petitioner then requested an administrative hearing.
Concluding there were "no issues of fact to be adduced at a hearing" and the
issue entailed "a purely legal question[,]" the Board denied petitioner's request
in its February 2, 2018 written decision. This appeal followed.
On appeal, raises the following points for our consideration:
POINT ONE
IMPOSING FORFEITURE IN THIS CASE IS
EXCESSIVE AND UNFAIR.
POINT TWO
N.J.S.A. 18A: 66-36 AS APPLIED IN THIS CASE IS
UNCONSTITUTIONAL BECAUSE IT
SIGNIFICANTLY IMPACTS [PETITIONER]'S
CONSTITUTIONAL RIGHT TO DUE PROCESS
AND EQUAL PROTECTION UNDER THE LAW.
We have considered these contentions in light of the record and applicable
legal principles and conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). Pursuant to our "limited"
standard of review, Russo v. Board of Trustees, Police & Firemen's Retirement
Systems, 206 N.J. 14, 27 (2011), we affirm substantially for the reasons
expressed in the Board's comprehensive written decision, which "is supported
A-3115-17T4
4
by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D).
In doing so, we determine the Board's decision was not arbitrary, capricious, or
unreasonable. Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56
(App. Div. 2001). We add only the following comments.
In essence, petitioner challenges the Commissioner's January 9, 2012
determination terminating her from her tenured teaching position. Specifically,
she contends her conduct "does not constitute 'unbecoming conduct'" and, as
such, "forfeiture is not a mandatory penalty." Petitioner's argument is
procedurally and substantively flawed.
Petitioner was afforded a full hearing for the disciplinary charges before
the ALJ, during which she testified and moved numerous exhibits into evidence.
Petitioner did not appeal the Commissioner's decision affirming the ALJ's
decision. Therefore, because the issue is not properly before us, and we lack
jurisdiction to review it, we need not address it. See State v. Rambo, 401 N.J.
Super. 506, 520 (App. Div. 2008) ("It is a fundamental of appellate practice that
we only have jurisdiction to review orders that have been appealed to us."); see
also 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459
(App. Div. 2004) ("[O]nly the judgment or orders designated in the notice of
appeal . . . are subject to the appeal process and review . . . .").
A-3115-17T4
5
Nonetheless, we have considered petitioner's claim and agree with the
Board that she is collaterally estopped from relitigating the conduct unbecoming
determination. The doctrine of collateral estoppel "bars relitigation of any issue
which was actually determined in a prior action, generally between the same
parties, involving a different claim or cause of action." In re Liquidation of
Integrity Ins. Co., 214 N.J. 51, 66 (2013). Our Supreme Court has enunciated a
five-part test to determine whether the doctrine applies:
the party asserting the bar must show that: (1) the issue
to be precluded is identical to the issue decided in the
prior proceeding; (2) the issue was actually litigated in
the prior proceeding; (3) the court in the prior
proceeding issued a final judgment on the merits; (4)
the determination of the issue was essential to the prior
judgment; and (5) the party against whom the doctrine
is asserted was a party to or in privity with a party to
the earlier proceeding.
[In re Estate of Dawson, 136 N.J. 1, 20 (1994) (citations
omitted).]
Pertinent to this appeal, "[a]dministrative tribunals can and do provide a
full and fair opportunity for litigation of an issue, and their judgments on
identical issues may form the basis for application of the doctrine of collateral
estoppel so long as they are rendered in proceedings which merit such
deference." Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 87 (2012)
(citations and internal quotation marks omitted). "Thus, our courts will accord
A-3115-17T4
6
administrative rulings that otherwise satisfy collateral estoppel standards
preclusive effect if the proceedings provide 'significant procedural and
substantive safeguards,' similar to those that are provided to litigants in courts
of law." Ibid. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 524
(2006)).
Here, all five Dawson factors were satisfied: (1) the conduct unbecoming
issue was decided in the tenure proceedings; (2) the issue was actually litigated
and (3) decided on the merits in those proceedings; (4) such determination was
the sole reason for petitioner's removal from her tenured position; and (5)
petitioner was, of course, the same party in the tenure proceedings. See 136 N.J.
at 20. As noted, petitioner was afforded a full and fair hearing before the ALJ,
where she and multiple witnesses testified and several exhibits were admitted in
evidence. Accordingly, petitioner is estopped from rearguing her conduct
unbecoming finding before us.
Little needs to be said about petitioner's two constitutional challenges to
N.J.S.A. 18:66-36. Indeed, her equal protection argument, that other pension
applicants have done far worse misdeeds yet still retained their pension benefits,
is factually and legally unsupported and requires no comment from us.
A-3115-17T4
7
Secondly, petitioner's due process claim, that she was punished more
harshly for electing to challenge her removal, is misplaced. To support her
contention, petitioner cites two Federal criminal cases: Bordenkircher v. Hayes,
434 U.S. 357 (1978), and United States v. Mazzaferro, 865 F.2d 450 (1st Cir.
1989), both of which determined whether a defendant was punished more
harshly for rejecting a plea bargain and electing to proceed to trial.
Here, however, petitioner was not removed because she elected to
challenge the Regional School District's charges, but rather because she did not
prevail before the ALJ. We agree with the Board that the plain language of
N.J.S.A. 18A:66-36 "precludes [TPAF] members who have been removed for
conduct unbecoming from collecting deferred retirement benefits irrespective of
whether they chose to litigate their tenure cases." Had petitioner succeeded
before the ALJ, she would not have been disqualified for benefits under the
statute. Accordingly, petitioner's forfeiture of her pension rights does not rise
to a due process violation.
Affirmed.
A-3115-17T4
8
MARY LOU FORSELL VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND (TEACHERS' PENSION AND ANNUITY FUND)
Combined Opinion