ALFRED J. PETIT-CLAIR, JR. VS. CITY OF PERTH AMBOY (L-3703-13, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2049-14T2

ALFRED J. PETIT-CLAIR, JR.,

Plaintiff-Appellant,

v.

CITY OF PERTH AMBOY,

Defendant-Respondent.
__________________________________

Argued January 8, 2018 – Decided September 7, 2018

Before Judges Sabatino, Ostrer and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. L-3703-13.

Alfred Petit-Clair, Jr., appellant, argued the
cause pro se.

Michael S. Williams argued the cause for
respondent (Cruser Mitchell Novitz Sanchez
Gaston & Zimet, LLP, attorneys; Douglas V.
Sanchez, of counsel; Michael S. Williams, on
the brief).

PER CURIAM

Plaintiff Alfred Petit-Clair, Jr. complains that the City of

Perth Amboy lacked the power in 2009 to terminate retiree medical
benefits for part-time employees like himself, who were already

eligible to retire but had not done so. Plaintiff appeals from

the Chancery Division's order granting the City of Perth Amboy

summary judgment and dismissing his complaint. Plaintiff

essentially argues he obtained a contractual right to the retiree

health benefits because the City's mayor had assured him in 1990,

before he was hired, that he would receive them, and the City

adopted a resolution in 1994 formalizing such benefits. He also

argues the City was equitably estopped from denying him benefits,

and barred by N.J.S.A. 40A:10-23 from treating part-time employees

differently from full-time employees.

We are unpersuaded. Absent a clear and unmistakable

expression of intent to create a contractual obligation, the City

was free to withdraw previously granted employee benefits. Also,

the City was not equitably estopped from withdrawing the benefits,

as plaintiff's reliance on the mayor's assurances was

unreasonable. Furthermore, the City was free to treat part-time

and full-time employees differently, because they were not

similarly situated. We therefore affirm.

I.

In a previous opinion, we reviewed facts regarding

plaintiff's employment with the City. Petit-Clair v. Bd. of Trs.,

No. A-2048-16 (Mar. 1, 2018) (slip op. at 2-4) (Petit-Clair I).

2 A-2049-14T2
We focused on his claimed entitlement to pension credits under the

Public Employees' Retirement System (PERS), after over twenty-five

years of service as the part-time attorney for the City's zoning

board of adjustment (ZBA). Here, we highlight facts relevant to

plaintiff's claimed entitlement to retiree health benefits from

the City. We extend to plaintiff all favorable inferences. See

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Before the ZBA formally selected plaintiff as its part-time

attorney in 1990, see N.J.S.A. 40:55D-71(b), the mayor assured

plaintiff he would be eligible for health benefits when he later

retired. In January 1994, the City adopted a resolution formally

granting retiree health benefits to both part-time and full-time

employees. After noting its authority under N.J.S.A. 40A:10-23,

the resolution stated:

NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE
COUNCIL OF THE CITY OF PERTH AMBOY:

1. That health and hospital benefit
coverage shall, upon adoption of this
resolution, be provided, at City expense, as
set forth in the City's health benefits plan
for retirees, to employees and their
dependents who retire after 25 years' or more
of service with the City of Perth Amboy and
employees, and their dependents, who have
retired and reached the age of 62 or older
with at least 15 years of service with the
City of Perth Amboy.

3 A-2049-14T2
In the years following the 1994 resolution, the City provided for

retiree health benefits in collective negotiation agreements,

which did not cover plaintiff. See Perth Amboy Ordinance No.

1464C-2009 (Adopted May 27, 2009).

In 2009, the City withdrew retiree health benefits from part-

time employees who were not covered by collective negotiation

agreements, but left them in place for certain full-time workers.

The change was accomplished in three steps. In January 2009, the

City rescinded the 1994 resolution, thereby denying retiree health

benefits to all employees not covered by such agreements. Ibid.

Four months later, the City restored retiree health benefits for

employees who had worked for the City continuously since 1994, but

only if they did so full-time. The May 2009 ordinance states:

SECTION 2. Pursuant to N.J.S.A. 40A:10-
23, the City will assume the premium cost of
the controlling group health and hospital
insurance coverage for employees who retire
and satisfy the following conditions:

A. The employee commenced full-time
employment for the City of Perth Amboy prior
to July 1, 1994 and remained continuously
employed full-time by the City through the
date of qualifying retirement under a State
of New Jersey administered retirement plan;
and

1. The employee retired:

a. On a State disability pension
as a result of an on-the-job
injury sustained while

4 A-2049-14T2
 performing services for the
City of Perth Amboy; or

b. After 25 years or more of
employment service in the City
of Perth Amboy; or

c. With at least 15 years of
employment service in the City
of Perth Amboy and reached the
age of 62 years or older.

B. The level of insurance will be the
prevailing group coverage that is in effect
for the non-unionized employees of the City
and the qualifying retiree will be subject to
and responsible for any employee contributions
and/or co-pays in effect from throughout
retirement.

[Ibid.]

Five months later, the City amended the ordinance in its

entirety, to expand the class of eligible full-time employees by

covering full-time employees who started working for the City

before January 1, 2008, instead of July 1, 1994. See Perth Amboy

Ordinance No. 1484-2009 (Adopted Oct. 14, 2009), codified at Perth

Amboy Municipal Code, art. V, § 85-8 to 85-9 (2018). Part-time

employees remained ineligible.1

When the City adopted the May 2009 ordinance, plaintiff was

already eligible to retire. He was sixty-five years of age, and

had worked eighteen years for the ZBA. At that time, however,

1
We take judicial notice of the October 2009 ordinance, which is
not a part of the record. See N.J.R.E. 201(a); N.J.R.E. 202(b).

5 A-2049-14T2
plaintiff was unaware of the ordinance's consideration and

passage. The City conceded at oral argument that plaintiff would

have received retiree health benefits had he retired before they

were rescinded. He became aware of the change in policy in 2011,

when he submitted retirement papers, and was informed he would

need to procure his own insurance. In order to retain insurance

for himself and his adult disabled son, plaintiff withdrew his

retirement application and continued working as the ZBA attorney.2

The City contends that it restricted retiree health benefits

in 2009, and adopted other cost-cutting measures, to address a

structural budget deficit. Among other austerity measures, the

City raised taxes twenty-six percent; increased water and sewer

rates by seventy percent for industrial users and forty-six percent

for residential users; laid off about one hundred employees and

reduced payroll through attrition; and increased deductibles and

copayments under the health insurance plan.3

As noted in Petit-Clair I, slip op. at 3, plaintiff received

assurances from a different mayor in 2011. The mayor told

2
At oral argument, plaintiff stated he was still the attorney for
the ZBA, but was uncertain about the future.
3
The City contends it was on the brink of bankruptcy. Plaintiff
responds that the City never hired bankruptcy counsel, let alone
filed a bankruptcy petition.

6 A-2049-14T2
plaintiff that his problem with retiree health benefits would be

worked out. But, it was not.

II.

Plaintiff initially filed his verified complaint against the

City on September 24, 2012. He withdrew that complaint with the

City's consent pending his pension appeal, and then filed a

complaint in lieu of prerogative writs on June 5, 2013. He alleged

the May 2009 ordinance was "ultra vires as an 'irregular exercise

of basic power'"; the City was equitably estopped from depriving

him of retiree health benefits; and the City's actions were

arbitrary and capricious. After a period of discovery, the parties

filed cross-motions for summary judgment.

During oral argument, the City asserted plaintiff's action

was time-barred by Rule 4:69-6. Substantively, the City contended

the 2009 ordinance was not ultra vires, and it was empowered to

distinguish between full-time and part-time employees, and benefit

only the former. The City also argued plaintiff unreasonably

relied on the mayor's promise in 1990 that he would receive retiree

health benefits.

Plaintiff argued that the City was barred from withdrawing

the benefits because he relied for many years on the prospect of

receiving them, and they were a form of earned compensation, not

a gratuity. He contended the City was equitably estopped from

7 A-2049-14T2
withdrawing the benefits, because he reasonably relied, to his

detriment, on the promises of payment. Plaintiff also argued the

City's distinction between classes of employees violated the

uniformity requirement in N.J.S.A. 40A:10-23(a).4

The trial court granted the City summary judgment on both

procedural and substantive grounds. In a written decision, Judge

Frank M. Ciuffani found plaintiff's action was time-barred by Rule

4:69-6. Plaintiff filed it roughly two years after he discovered

in 2011 that he was ineligible for retiree health benefits, in

violation of the Rule, which generally imposes a forty-five day

time-bar.

Substantively, the court rejected plaintiff's argument that

the City's actions were an irregular exercise of its delegated

powers. The plain language of N.J.S.A. 40A:10-23 grants

municipalities broad discretion in providing retiree health

benefits. The court relied on Fair Lawn Retired Policemen v.

Borough of Fair Lawn, 299 N.J. Super. 600, 606 (App. Div. 1997),

in which we recognized that a municipality in its discretion could

elect to assume only a portion of the cost of retirement health

4
The statute states that a public employer may provide retirement
insurance benefits to employees "who have retired and reached the
age of 62 years or older with at least 15 years of service with
the employer . . . under uniform conditions as the governing body
of the local unit shall prescribe." N.J.S.A. 40A:10-23.

8 A-2049-14T2
coverage. Judge Ciuffani reasoned, just as "a municipality may

elect to share in the costs of providing retirement health benefits

rather than take an all or nothing approach, a municipality might

naturally also decide to limit the provision of such benefits to

full time employees."

The court then rejected plaintiff's argument that the City

should be equitably estopped from denying plaintiff retirement

health benefits. The court found that plaintiff unreasonably

relied on the mayor's 1990 promise, as the mayor lacked the

authority to make it, and it presumed plaintiff would be

reappointed ZBA attorney each year for at least fifteen years.

The court also found plaintiff failed to demonstrate that he

detrimentally changed his position based on the promise, because

he continued to maintain his law practice while he served as ZBA

attorney and only declined a small number of cases due to a

conflict of interest.

The court also held that N.J.S.A. 40A:10-23's "uniform

conditions" requirement did not prevent the City from rescinding

retirement health benefits from part-time employees. Citing Fair

Lawn, and Gauer v. Essex County Division of Welfare, 108 N.J. 140

(1987), the court found the City exercised its discretion to grant

retiree health benefits only to full-time employees, and the

"uniform conditions" proviso did not "require strict uniformity

9 A-2049-14T2
across all classes . . . . Instead, [the] requirement is satisfied

so long as employers have a meritorious basis to distinguish a

certain class of employees from another." Thus, the court granted

the City's motion for summary judgment and denied plaintiff's.

Plaintiff then filed a motion for reconsideration, seeking

Judge Ciuffani's recusal. The judge denied the motion orally.

This appeal followed.5 Plaintiff renews and refines the

arguments presented to the trial court. He also contends the

trial court erred in not relaxing the deadline for filing the

action in lieu of prerogative writs, and denying his recusal

motion.6

III.

On appeal from an order granting summary judgment, we exercise

de novo review, applying the same standard as the trial court.

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). As

we discern no genuine issue of material fact, our task is to

determine whether the motion judge correctly applied the law.

Ibid. We discern no error.

5
The case was initially argued in September 2015, and then
adjourned so it could be reargued, back-to-back with the pension
appeal.
6
The parties also filed supplemental briefs on whether the PERS
Board's decision on plaintiff's eligibility for pension service
credit should have collateral estoppel effect in this case. We
need not reach that issue given our disposition on other grounds.

10 A-2049-14T2
 Plaintiff challenges the May 2009 ordinance on three

principal grounds: it violates the uniformity requirement of

N.J.S.A. 40A:10-23; it withholds what he contends is a "vested"

right to a form of compensation; and principles of equitable

estoppel should bar application of the ordinance to him. His

challenge must be viewed against a presumption that local

ordinances are valid and an appropriate exercise of local

governmental power. See Bell v. Stafford, 110 N.J. 384, 394

(1988). Plaintiff bears a heavy burden to establish invalidity.

Ibid.

A.

The City's disparate treatment of part-time employees does

not violate N.J.S.A. 40A:10-23, which authorizes local governments

to pay the cost of retiree health benefits "under uniform

conditions." The provision states:

The employer may, in its discretion, assume
the entire cost or a portion of the cost of
such coverage and pay all or a portion of the
premiums for [eligible] employees . . .
including the premiums on their dependents,
if any, under uniform conditions as the
governing body of the local unit shall
prescribe.

[N.J.S.A. 40A:10-23 (emphasis added).]

11 A-2049-14T2
Eligible employees include, among others, employees "who have

retired and reached the age of 62 years or older with at least 15

years of service with the employer." N.J.S.A. 40A:10-23(a)(d).7

The uniformity requirement has been interpreted to permit

disparate treatment of discrete classes of employees. In Gauer,

Essex County misread the statute to require it to rescind benefits

granted to former employees of the County Welfare Board, who were

absorbed into the County Division of Welfare when the County

recognized its form of government in 1979. 108 N.J. at 144. In

1974, the Board adopted a resolution granting retiree health

benefits to employees with twenty-five years of service. Id. at

143. After reorganization, the County continued paying those

benefits to (1) Board retirees who had been receiving them, as

well as (2) former Board employees who became Division employees,

if they retired with twenty-five years or more service in a state

or local pension system in accordance with the Board's resolution.

Id. at 144. Plaintiff was in the latter group, having retired in

1981. Ibid. However, effective January 1, 1985, in the name of

"uniform" treatment under N.J.S.A. 43:10A-23, the County stopped

7
There is no dispute that he satisfied N.J.S.A. 40A:10-23(a)(d).
Also eligible are employees who, among other things, must have "25
years or more of service credit in a State or locally administered
retirement system," N.J.S.A. 40A:10-23(a)(b) and -23(a)(c).
However, plaintiff's service credit in PERS remains at issue. See
Petit-Clair I.

12 A-2049-14T2
payments to former Board employees in both categories, so all

County welfare workers were treated equally. Ibid.

The Supreme Court held that the County was mistaken. The

Court defined the question to be "whether any group of county

employees is uniquely or specially situated so that particularized

treatment may be accorded such employees without violating the

uniformity standard." Id. at 147. The County mistakenly focused

on the fact the same entity employed former Board workers, as well

as workers who began service with the Division. Id. at 147-48.

"The issue is not whether the employer is the same, albeit a

successor in form, but whether successive employees are similarly

situated." Ibid.

The Court held that the former Board employees who were

already retired and receiving benefits were in a distinct class

who could receive disparate treatment. Referring to employees

like Gauer, who already retired after working for both agencies

and had been receiving the benefit, the Court said, "Employees who

worked for the former Board as well as the successor Division were

hired and/or served out their employment and retired under a

particular compensation scheme governing employment." Id. at 148.

They were entitled to be treated differently from new Division

hires, or Board employees who stayed after the new system denying

retiree health benefits was put in place. Ibid. "They stand on

13 A-2049-14T2
a distinctively different footing from any employees who were

thereafter hired or continued to be employed up to the point of

retirement under a different compensation/benefit scheme." Ibid.

To emphasize that the Court was addressing former Board employees

who had already retired when the 1985 policy was implemented, the

Court stated, "The retired former employees thus constitute a

distinct group and will represent, in the future, an ever-

diminishing class." Ibid. (emphasis added).8

Fair Lawn addressed a December 1988 ordinance that, in

conformity with applicable collective negotiation agreements,

separately treated four categories of retirees: (1) full-time

employees who retired before December 31, 1987; (2) full-time

employees who had not retired by December 31, 1987; (3) full-time

employees hired between January 1 and April 25, 1988; and (4)

employees, whether full-time, part-time, or temporary, hired after

April 26, 1988. 299 N.J. Super. at 603. The Borough paid for

half the cost of health benefits for retirees in the first

category. Ibid. A 1975 ordinance that preceded enactment of

N.J.S.A. 40A:10-23 provided for such a benefit to any retiree with

twenty years of service. Id. at 602. The 1988 ordinance paid all

8
If the group also included not-yet-retired former Board
employees, it is conceivable the class would not be "ever-
diminishing," but might temporarily grow.

14 A-2049-14T2
the cost for benefits for persons in the second and third category;

and none for those in the fourth category. Id. at 603.

The plaintiff, a group of retirees in the first category,

complained that the 1988 ordinance violated the uniformity

requirement of N.J.S.A. 40A:10-23 — apparently because they

continued to pay for half of the cost of their benefits, while

others paid nothing. See ibid. The trial court agreed that

everyone had to be treated the same, but ordered that "all retirees

are limited to the payment of 50% of their health care premiums

. . . ." Id. at 604. Also, all retirees receiving the benefit

had to have twenty-five years of service, consistent with N.J.S.A.

40A:10-23, rather than twenty years as the 1988 ordinance required.

Ibid.

Relying on Gauer, we held that the municipality was empowered

to treat the already-retired employees separately. Id. at 605-

06. "As regards employees who worked and retired under different

compensation/benefit conditions, the ordinance continues to give

effect to the scheme in effect at their retirement." Ibid. They

formed a distinct group who could receive disparate treatment.

Ibid. "Those retired former employees 'stand on a distinctively

different footing from any employees who were thereafter hired or

continued to be employed up to the point of retirement under a

different compensation/benefits scheme.'" Id. at 606 (quoting

15 A-2049-14T2
Gauer, 108 N.J. at 148). Also, nothing in the statute, as it then

existed, barred the municipality from paying only a portion of the

retirees' benefits. Id. at 606.9 We found "no logical reason to

hold that the legislature intended to restrict municipalities to

an all or nothing election" to provide benefits to eligible

employees. Ibid.

Applying Gauer and Fair Lawn, we conclude the uniformity

requirement of N.J.S.A. 40A:10-23 did not prohibit the City from

providing, in its May 2009 ordinance (and its October 2009

ordinance), retiree health benefits to certain full-time

employees, but not part-time employees. The City was not bound

to cover all employees, or none of them. Part-time workers form

a "specially situated" class of employees "so that particularized

treatment may be accorded such employees without violating the

uniformity standard." Gauer, 108 N.J. at 147.

B.

Even if the uniformity requirement did not require the City

to provide plaintiff retiree health benefits, he contends

"benefits cannot be rescinded, once they were authorized in the

first place." He argues the City lacked the authority to withdraw

9
Eventually, the Legislature amended N.J.S.A. 40A:10-23 to provide
that a municipality may pay "a portion of the cost" of coverage.
L. 2010, c. 2, § 15.

16 A-2049-14T2
those benefits once promised — by the mayor and the 1994 resolution

— because they were a form of compensation; his right to receive

them "vested" when he became eligible; and the City was barred

from withdrawing them, notwithstanding that plaintiff had not

retired before they were withdrawn.

Plaintiff misplaces reliance on Gauer, Fair Lawn, and a third

decision, Bonzella v. Monroe Township, 367 N.J. Super. 581 (App.

Div. 2004). Furthermore, plaintiff's position is at odds with

Berg v. Christie, 225 N.J. 245 (2016), in which the Supreme Court

upheld the Legislature's power to suspend future pension cost of

living increases (COLA) absent "unmistakable" or "unequivocal

intent to create a non-forfeitable right to yet unreceived COLAs

. . . ." Id. at 253. If the Legislature can deny future COLAs,

despite their prior authorization, then the City can deny yet

unreceived retiree health benefits to part-time employees like

plaintiff.

We turn first to the pre-Berg cases of Gauer, Fair Lawn, and

Bonzella. As discussed, Gauer addressed Essex County's decision

to cease paying retiree health benefits to persons who had worked

for the former Welfare Board and retired as Board employees, or

continued working for the Division after reorganization and

thereafter retired. Concluding that N.J.S.A. 40A:10-23 did not

compel that action, the Court also addressed "whether the County

17 A-2049-14T2
may nonetheless unilaterally terminate such benefits." 108 N.J.

148. The Court answered in the negative.

In reaching that conclusion, the Court "consider[ed] the

nature of the benefit; is it, in other words, a mere gratuity, or

are there sufficient policy reasons to require continuation of

payment in the absence of proof of a loss of fiscal integrity in

the plan?" Ibid. The Court declined to characterize the benefits

simply as "compensation," but referred to their "compensatory

nature," and the "compensatory aspect of their nature. . . ." Id.

at 149-50. As the benefits were "intended at least in part as

compensation," the Court was "satisfied that, like pensions, these

retirement benefits were sufficiently compensatory to afford the

plaintiff some interest in their preservation." Id. at 150.10

10
The Court cited three cases, but none held retiree benefits were
non-modifiable, earned compensation. See Gauer, 108 N.J. at 149
(citing Uricoli v. Bd. of Trs., Police and Firemen's Retirement
Sys., 91 N.J. 62 (1982); Masse v. Bd. of Trs., Pub. Emps.
Retirement Sys., 87 N.J. 252 (1981); and Geller v. Dep't of the
Treasury, 53 N.J. 591 (1969)). The Uricoli Court noted that
pensions "are contractual in nature and constitute deferred
compensation for services rendered," but stopped short of adopting
other jurisdictions' view that "pensions [are] a vested
contractual right," 91 N.J. at 71. The Court noted that it
eschewed such a bright-line rule in Spina v. Consolidated Police
and Firemen's Pension Fund Commission, 41 N.J. 391 (1964).
Instead, the Uricoli Court held that the pension's compensatory
nature should be a factor in considering whether Uricoli's
misconduct should be grounds for loss of pension. 91 N.J. at 77-
78.

18 A-2049-14T2
 However, the Court's holding was limited to honoring benefits

that former Board employees, like Gauer, had already begun

receiving when the County withdrew them. The Court held the County

was obliged to honor the prior policy "with respect to employees

who were hired by the Board and/or served out their employment and

retired under the resolution's provision . . . ." Ibid. (emphasis

added).11

In Masse, the Court referred to the compensatory nature of
pension benefits, but only in interpreting whether the Legislature
would have stripped pension credits from an employee who committed
a crime unrelated to employment without expressly requiring it.
87 N.J. at 260-63. The Court endorsed the view that the right to
a pension was "not contractual in nature." Id. at 260 (quoting
Salz v. State House Comm'n, 18 N.J. 106, 111 (1955)).

The Geller Court stated that pension benefits "are in the
nature of compensation for services previously rendered and act
as an inducement to continued and faithful service," 53 N.J. at
597, but simply to support the liberal construction of the statute,
and the conclusion that a teacher was entitled to buy back pension
credits at a prior offering price, where the pension system
erroneously failed to make required deductions. Id. at 598.
11
The use of "and/or" followed by "and" injects an element of
ambiguity. We interpret the sentence to refer to three classes
of persons: (1) those who were hired by the Board, served out
their employment with the Division, and retired — all under the
resolution; (2) those who were not hired by the Board under the
resolution, presumably because they started working for the Board
before the resolution's adoption, but served out their employment
and retired under the resolution; and (3) those who were hired by
the Board and retired, both under the resolution, without serving
under the Division. This is consistent with the statement,
"Employees who worked for the former Board as well as the successor
Division were hired and/or served out their employment and retired
under a particular compensation scheme governing their

19 A-2049-14T2
 Furthermore, Gauer recognizes that retiree benefits are not,

without qualification, compensation; for if that were so,

rescission after an employee qualified for the benefit would be a

breach of contract. See ibid. As the Gauer Court noted, pension

benefits may be reduced "unilaterally when the underlying

motivation is . . . preservation of the integrity of the benefit

system . . . ." 108 N.J. at 150. Here, the City changed the

rules in 2009 because it claimed it could no longer afford the

cost of providing retiree health benefits as broadly as it had

previously. Although plaintiff emphasizes that the City did not

file for bankruptcy or even retain bankruptcy counsel, the City's

budgetary predicament was evidently serious, given the other

austerity measures the City adopted. In short, the integrity of

the City's finances was at stake.

Fair Lawn, which followed Gauer, also only addressed the

rights of persons who had already retired and were receiving an

awarded benefit when the municipality adopted its ordinance. 299

N.J. Super. at 602. For those members who retired under the 1975

ordinance with twenty years of service, before N.J.S.A. 40A:10-23

was enacted, which required twenty-five years of service, we stated

employment." Id. at 148. Those employees were distinguished from
"employees who were thereafter hired or continued to be employed
up to the point of retirement under a different
compensation/benefit scheme." Ibid. (emphasis added).

20 A-2049-14T2
that "Gauer protects them from retroactive modification" of their

retiree health benefits. Id. at 606. However, those members who

retired with less than twenty-five years, subsequent to enactment

of N.J.S.A. 40A:10-23, should be treated differently, unless they

had reached the age of sixty-two with fifteen years as service

with their employer. Ibid. We held, "As to non-disabled retirees

with less than twenty-five years of service who retired subsequent

to enactment of N.J.S.A. 40A:10-23, the provision of a fifty

percent payment is ultra vires and in derogation of the statute,

unless they had reached the age of sixty-two with fifteen years

of service with the employer at retirement." Ibid. Thus, the

Legislature was empowered to change the rules – by enlarging the

requisite years of service – for those not yet retired, regardless

of whether they would have qualified for the benefit had they

retired with over twenty years' service before the enactment.

In short, Fair Lawn does not support the proposition that the

City was barred from restricting eligibility for the benefit plan

once it was put in place. Rather, Fair Lawn confirmed the

Legislature's power to tighten eligibility requirements for a

benefit that had already been "promised" by a prior ordinance.

Furthermore, Fair Lawn addressed only the claim of parties who had

already retired before the municipal action, unlike plaintiff

21 A-2049-14T2
here, who remained on the job after the municipality rescinded the

benefit.

Nor are we persuaded that Bonzella compels a result favorable

to plaintiff. We held that Theresa and Thomas Bonzella, married

municipal employees, "had a contractual right to the [retiree

health] benefits provided by" a municipal resolution. 367 N.J.

Super. at 588. In 1982, Monroe Township passed a resolution

stating, "We hereby agree to pay the premium" for retiree health

benefits for persons with twenty-five or more years of service,

under the State Health Benefits Program (SHBP), in which the

township participated. In 1993, after opting out of SHBP, the

township adopted a second resolution stating it "shall provide

. . . insurance coverage for all employees retired after 25 years

or more of service . . . ." When the Bonzellas sought to retire,

taking their own coverage, naming their spouse as a dependent, the

township refused, invoking an administrative policy that barred

double-coverage. We relied on Gauer in holding that the coverage

was part of the plaintiffs' compensation. Id. at 588.

We acknowledge that the panel in Bonzella rejected the

township's argument that "Gauer is distinguishable because [the

Bonzellas] have not yet received any spousal medical benefits."

Id. at 589. Quoting another use of "and/or" in Gauer, the panel

held that the "Gauer Court did not distinguish between those who

22 A-2049-14T2
had already retired and those who continued to work under the

original compensation package. It held that benefits could not

be rescinded for those 'who had been hired — and/or retired — by

the predecessor agency under different employment conditions.'"

Ibid. (quoting Gauer, 108 N.J. at 147).

The quoted sentence from Gauer refers to three groups: persons

whom the Board hired under its benefit plan — that is, hired on

or after December 3, 1974; persons who were so hired and retired

by the Board; and persons who were hired by the Board, but not

under the plan – in other words, persons hired before December 3,

1974 — who nonetheless retired by the Board under its benefit

plan. The first group conceivably could include persons who had

not yet retired at all. But, Gauer goes on to clarify that it was

referring only to those who were not "retired . . . by the

predecessor agency[,]" but were retired by the Division, after the

1979 reorganization and before the 1984 policy change. 108 N.J.

at 147-48. Gauer fell into that category. As we have previously

noted, the Court specifically stated that Gauer stood on a

"different footing from any employees who were thereafter hired

or continued to be employed up to the point of retirement under a

different compensation/benefit scheme." Id. at 148 (emphasis

added).

23 A-2049-14T2
 In any event, a strong argument could be made that the

township in Bonzella explicitly bound itself contractually, unlike

the City, to pay benefits to the married plaintiffs based on the

express language of the 1982 ordinance. It stated that the

township "hereby agree[d]" to pay the benefits. 367 N.J. Super.

at 584. Such a clear undertaking may have shielded the Bonzellas

from a subsequent change, unlike the 1994 resolution in plaintiff's

case, which merely "authoriz[ed]" the City's "wish[] to provide"

the benefits at issue.

C.

Plaintiff's contention that he had an unalterable contractual

right to retiree health benefits also is at odds with the

principle, recently confirmed in Berg, that the legislative

creation of a contractual right must be unequivocal or

unmistakable. See 225 N.J. at 253. Absent such a clear expression

of intent, the Legislature, and impliedly a municipal governing

body, retain the power to adjust benefits previously granted. See

ibid.

In Berg, the Supreme Court held that pension benefits COLAs

were not contractual obligations of the State because the

Legislature did not make them unmistakably so. See id. at 272-

73. Consequently, the Legislature was free to eliminate new COLAs

for current retirees – even those who retired in reliance on them

24 A-2049-14T2
being there. See id. at 278. The Berg Court adopted the standard

that the Legislature's contractual undertaking must be

"unmistakable." Id. at 263-64. The Court also held that a claim

of a contractual undertaking must be subject to rigorous review

because of the "harsh" ramifications: "To find a contract created

by statute means that the Legislature binds itself to a policy

choice and surrenders the power of future elected representatives

to cut back on that choice." Id. at 260.

Berg dealt with the meaning of the non-forfeitable-right

statute — which made at least base pension benefits a contractual

right. See N.J.S.A. 43:3C-9.5. However, the statute expressly

excluded medical benefits: "For purposes of this section, a 'non-

forfeitable right to receive benefits' means that the benefits

program, for any employee for whom the right has attached, cannot

be reduced. The provisions of this section shall not apply to

post-retirement medical benefits which are provided pursuant to

law." N.J.S.A. 43:3C-9.5(a). As medical benefits are not a non-

forfeitable right, they are subject to forfeiture by Legislative

action.

The Berg Court hearkened to Spina, which upheld a legislative

revision of a pension formula, lengthening the service period

required for benefits, see 41 N.J. at 393. The Court noted that

the Legislature was "free to rewrite the formula" for the pensions,

25 A-2049-14T2
Berg, 225 N.J. at 261 (quoting Spina, 41 N.J. at 402), absent a

clear contractual undertaking that "cut[] off the legislative

prerogative to revisit its policy choices," ibid. "Writing for

the Court, Chief Justice Weintraub explained that a contractual

restriction on future legislative action 'should be so plainly

expressed that one cannot doubt the individual legislator

understood and intended it.'" Ibid. (quoting Spina, 41 N.J. at

405).

We add that the Spina Court eschewed characterizing an

employee's pension right as a "'gratuity,' 'compensation,'

'contract,' [or] 'vested rights.'" 41 N.J. at 401. "None fits

precisely and it would be a mistake to choose one and be driven

by that choice to some inevitable consequence." Ibid. The Court

cited approvingly the statement in Dodge v. Board of Education,

302 U.S. 74, 78 (1937) that there is a presumption that "a law is

not intended to create private contractual or vested rights but

merely declares a policy to be pursued until the legislature shall

ordain otherwise." Spina, 41 N.J. at 400. The Court noted that

our cases have long held that the "Legislature may revise pension

plans which governmental employees are required to join." Id. at

398. The Berg Court rejected an argument, much like plaintiff's

here, that once the Legislature adopted a COLA statute, it could

not be suspended. See 225 N.J. at 276.

26 A-2049-14T2
 In sum, we reject plaintiff's contention that the City created

a vested contractual right to retiree health benefits, which the

City could not rescind. The City did not unequivocally or

unmistakably intend to create such a right. Therefore, it retained

the authority to withdraw plaintiff's retiree health benefits

before he began receiving them.

D.

Plaintiff's remaining arguments require only brief comment.

Just as the Berg Court rejected the plaintiffs' equitable estoppel

argument, see id. at 279, we are constrained to reject plaintiff's

argument here. The Court held a plaintiff must show that the

party to be estopped "'engaged in conduct, either intentionally

or under circumstances that induced reliance,'" by engaging in a

"'knowing and intentional misrepresentation' . . . ." Ibid. (first

quoting Knorr v. Smeal, 178 N.J. 169, 178 (2003), then quoting

O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987)). The party

to be estopped in this case is not the mayor in 1990, but the

City. The mayor had no authority to bind the City to pay plaintiff

retiree health benefits many years in the future. The City's

passage of the 1994 resolution did not unambiguously guarantee the

retiree health benefits into the future. The City did not engage

in knowing and intentional misrepresentation.

27 A-2049-14T2
 Furthermore, as the trial court found, plaintiff's reliance

was not reasonable. Plaintiff could not reasonably expect that

the provision of retiree health benefits to part-time employees

would remain forever unchanged, absent an unequivocal and

unmistakable expression that it would. See ibid. ("The retirees

could not reasonably expect perpetual COLAs when the non-

forfeitable-right statute specifically notes that any benefit not

guaranteed by the statute, a category that we hold includes COLAs,

is subject to change by the Legislature.").

We need not reach plaintiff's argument that the trial court

erred in enforcing the forty-five day deadline under Rule 4:69-

6(a) for filing in lieu of prerogative writ actions. We have

addressed the merits of his claims, presuming for the sake of

argument, "it is manifest that the interest of justice so requires"

expansion of the time for filing. See R. 4:69-6(c). Also,

plaintiff's argument the trial judge should have recused himself

from this matter lacks sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

We close by acknowledging the harsh result that plaintiff

must bear. He served as the part-time ZBA attorney for over

twenty-five years, anticipating health benefits upon retirement.

Had he retired before the City rescinded the 1994 resolution, the

City would have provided that benefit. Nonetheless, the City

28 A-2049-14T2
retained the power to withdraw those benefits for employees who

had not yet retired, including employees like plaintiff who already

qualified for them.

Affirmed.

29 A-2049-14T2