WILLIE JETTI VS. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-4018-15T1

WILLIE JETTI,

Petitioner-Appellant,

v.

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

Respondent-Respondent.
__________________________________

Submitted November 29, 2017 – Decided July 26, 2018

Before Judges Fuentes and Koblitz.

On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of Treasury, PFRS No. 3-76211.

Fusco & Macaluso Partners, LLC, attorneys for
appellant (Amie E. DiCola, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Robert
S. Garrison, Jr., Deputy Attorney General, on
the brief).

PER CURIAM
 From February 1, 2007 to March 10, 2009, Willie Jetti was

simultaneously employed as a corrections officer by the Essex

County Corrections Department and as a firefighter by the City of

Newark. Jetti appeals from the final decision of the Board of

Trustees, Police and Firemen's Retirement System (PFRS or Board)

denying his application for accidental disability retirement

benefits and ordering a partial forfeiture of service credit. We

affirm.

The conflict and disruption caused by appellant holding these

two full-time public service positions compromised the safety of

the public and of appellant's coworkers. On at least eight

occasions between July 1, 2007 and March 10, 2009, Jetti reported

to the Newark Fire Department that he was unable to work due to

illness or injury. On these same days, Jetti worked his complete

shift as a Corrections Officer at the Essex County Correctional

Facility. On May 29, 2009, the City served Jetti with a

Preliminary Notice of Disciplinary Action (PNDA) alleging

incompetency, inefficiency, and failure to perform duties,

N.J.A.C. 4A:2-2.3(a)(1); chronic absenteeism or lateness, N.J.A.C.

4A:2-2.3(a)(4); conduct unbecoming a public employee, N.J.A.C.

2 A-4018-15T1
4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-2.3(a)(7);1 and

other sufficient cause related to the violations of the rules and

regulations of the Newark Fire Department, N.J.A.C. 4A:2-2.3

(a)(12).2 The PNDA also included the following statement:

While serving in the capacity as a firefighter
with the City of Newark, Willie Jetti, did
purposely commit [an] act of malingering by
feigning an illness, and/or injury that
rendered him incapable to perform his required
duties as a firefighter by reporting to his
Command on July 1, 2007, March 29, 2008, June
17, 2008, August 24, 2008, September 13, 2008,
October 19, 2008, February 4, 2009, and on
March 10, 2009 that he was legitimately sick
and/or injured while knowing that said
information was false. Firefighter Jetti then
reported to work and received compensation as
a corrections officer with the Essex County
Department of Corrections during the same time
period he was on paid sick leave with the City
of Newark.

On November 13, 2009, Essex County served Jetti with a PNDA

notifying him of the results of a joint investigation conducted

by the Internal Affairs Departments of the City's Fire Department

and the County's Department of Corrections. This investigation

found Jetti had reported he was sick and unable to perform his

duties as a corrections officer approximately thirty-six times;

1
The PNDA erroneously charged Jetti with a violation of N.J.A.C.
4A:2-2.5(a)(7). The Final Notice of Disciplinary Action correctly
lists this charge as N.J.A.C. 4A:2-2.3(a)(7).
2
Jetti was originally charged with N.J.A.C. 4A:2-2.3(a)(11),
which has since been re-codified as N.J.A.C. 4A:2-2.3(a)(12).

3 A-4018-15T1
on these same dates, Jetti reported to work as a firefighter for

the City. Jetti waived his right to a departmental hearing. On

May 26, 2010, the County served him with a Final Notice of

Disciplinary Action (FNDA), advising him that the disciplinary

charges against had been sustained. The County removed Jetti from

his position as a corrections officer effective May 26, 2010.

After Jetti appealed to the Civil Service Commission, the

matter was transferred to the Office of Administrative Law for a

hearing before an Administrative Law Judge (ALJ). On October 5,

2010, Jetti, the City, and the County appeared before the ALJ and

reported that they had reached a settlement agreement.

In the Stipulation of Settlement and General Release between

Jetti and the City of Newark, the City agreed to amend the FNDA

against Jetti to reflect that effective June 1, 2009, Jetti had

"resigned in good standing" from his position as a firefighter.

(emphasis added). The settlement further provided that: "The

City's personnel records shall reflect Jetti's resignation and

that the charges set forth in the FNDA shall be withdrawn." In

exchange, Jetti agreed to waive "any and all rights and/or claims

that he has, may have, and/or may have had against the City and

4 A-4018-15T1
its directors, officers, employees, agents and attorneys,

concerning any and all matters arising from . . . this Agreement."3

However, after some time passed without a definitive

resolution, the ALJ found "it became apparent" that Jetti refused

to sign the settlement agreement that included the County. The

ALJ ordered the parties and counsel to appear on January 5, 2011

to ascertain the reason why Jetti was unwilling to settle with the

County. The ALJ found that Jetti was unwilling to include the

County in the settlement "because he did not trust the County or

its political affiliates, and indicated that he did not recall the

prior hearing due to injury-induced memory issues."

On February 28, 2011, the County moved before the ALJ to

enforce the settlement. The County argued that the record of the

October 5, 2010 settlement conference shows Jetti understood the

terms of the Agreement, had the opportunity to consult with his

attorney, and voluntarily agreed to sign the Stipulation. Jetti

submitted a certification again claiming to have no recollection

of what occurred on October 5, 2010.

3
The Agreement identified by name the "claims" Jetti agreed to
forgo, which include, "but is not limited to . . . the New Jersey
Law Against Discrimination, [N.J.S.A. 10:5-1 to -49], Title VII
of the Civil Rights Act of 1964, [42 U.S.C. § 2000e-1 to -17], Age
Discrimination and Employment Act, [29 U.S.C. § 621 to 634],
Conscientious Employee Protection Act, [N.J.S.A. 34:19-1 to -14],
and the American With Disabilities Act, [42 U.S.C. § 12101 to
12213]."

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 On April 11, 2011, the ALJ issued an Initial Decision finding

that on October 5, 2010, "counsel for each of the parties advised

the [ALJ] that both matters were settled." The ALJ found Jetti

reviewed the Stipulation with the assistance of his attorney. The

ALJ explained, "after some brief discussion between [Jetti] and

counsel relative to one of the terms, [Jetti] signed the

Stipulation and the original was provided to the [ALJ]."

Thereafter, Jetti's attorney questioned him on the record to ensure

that Jetti was aware of the contents of the Stipulation and that

he was entering into the agreement voluntarily. The ALJ also

questioned Jetti directly to confirm Jetti "had read and understood

the Stipulation."

Based on this record, the ALJ concluded that Jetti entered

into the Stipulation knowingly, voluntarily, and with the

assistance of counsel. The ALJ found the Stipulation of Settlement

was binding and met all of the requirements in N.J.A.C. 1:1-19.1,

and was therefore enforceable as to all of the parties in the

case, including the County. In a Final Administrative Action

issued on June 15, 2011, the Civil Service Commission adopted the

ALJ's factual findings and legal conclusion holding that the

Stipulation of Settlement Agreement was binding as to all parties.

In response to Jetti's direct appeal, this court affirmed the

6 A-4018-15T1
Civil Service Commission's decision in an unpublished opinion. In

re Jetti, Essex Cty., No. A-2709-11 (App. Div. Oct. 28, 2013).

Against this procedural backdrop, we now address the PFRS's

April 13, 2016 decision to deny Jetti's application for accidental

disability benefits. On March 10, 2009, while working as a

corrections officer at the Essex County Correctional Center, Jetti

was allegedly attacked by an inmate. Jetti claimed that he has

little recollection of how the attack occurred or how many inmates

may have been involved in the assault. Jetti also claimed that

as a result of this assault, he suffers from back pain, dizziness,

nausea, and anxiety.

On May 11, 2010, while the disciplinary charges were pending

concerning the abuse of sick days and other matters related to

holding two full-time public positions, Jetti applied for

accidental disability benefits based on the job-related incident

as a corrections officer. At the time Jetti filed this

application, the Division of Pensions and Benefits was not aware

of Jetti's pending disciplinary charges. On January 11, 2011, the

PFRS Board denied Jetti's application for accidental disability

benefits, after applying the standard established by the Supreme

Court in Richardson v. Bd. of Tr., Police and Firemen's Ret. Sys.,

192 N.J. 189 (2007).

7 A-4018-15T1
 The PFRS Board "determined that Mr. Jetti exhibited poor

judgment in calling out sick from his Essex County job to work for

the City of Newark when in actuality he was not sick." It found

Jetti's misconduct warranted the forfeiture of service and salary

credit for the period of time that he held the dual public

positions. The PFRS Board found especially troubling the five

occasions Jetti reported working for both the County and the City

on the same day, resulting in a twenty-four-hour work day.

Finally, the PFRS Board concluded Jetti qualified for deferred

retirement. Jetti challenged the Board's decision and sought a

hearing before an ALJ.

On March 7, 2016, the ALJ issued an Initial Decision

recommending the denial of Jetti's application for accidental

disability benefits based on his failure to satisfy the standard

in Richardson. With respect to the pension forfeiture, the ALJ

found that "on June 6, 2007, the Division of Pensions expressly

notified [Jetti] that there was . . . no law" that permits

"multiple-location members in the PFRS . . . ." In addition,

Jetti was "over the maximum age allowed to begin as a firefighter

within PFRS." Despite this, the ALJ found the disciplinary charges

against Jetti remained mere allegations because they were not

proven.

8 A-4018-15T1
 The PFRS Board reviewed the ALJ's Initial Decision and

disagreed with his conclusion with respect to the pension

forfeiture issue. Relying on the Court's decision in Corvelli v.

Bd. of Trs., 130 N.J. 539 (1992), the Board found it was "not

restricted to considering only [Jetti's] convictions." Citing

N.J.S.A. 43:1-3(c), the Board reasoned it was "required to evaluate

and consider all of [Jetti's] actions while in public service, in

order to determine whether his misconduct . . . violated the

requirement of honorable public service and warranted a partial

forfeiture of his service credit." This statute provides, in

relevant part:

In evaluating a member's misconduct to
determine whether it constitutes a breach of
the condition that public service be honorable
and whether forfeiture or partial forfeiture
of earned service credit or earned pension or
retirement benefits is appropriate, the board
of trustees shall consider and balance the
following factors in view of the goals to be
achieved under the pension laws:

. . . .

(7) the nature of the misconduct or crime,
including the gravity or substantiality of the
offense, whether it was a single or multiple
offense and whether it was continuing or
isolated;

(8) the relationship between the misconduct
and the member's public duties;

(9) the quality of moral turpitude or the
degree of guilt or culpability, including the

9 A-4018-15T1
 member's motives and reasons, personal gain
and similar considerations;

(10) the availability and adequacy of other
penal sanctions; and

(11) other personal circumstances relating to
the member which bear upon the justness of
forfeiture.

[N.J.S.A. 43:1-3(c) (emphasis added).]

Mindful of these factors, the Board noted that the Division

of Pensions had expressly notified Jetti on June 6, 2007, of the

absence of legal support for "multiple location members" and that

he was over the age limit to begin as firefighter for purposes of

the PFRS. Despite this admonition, Jetti "stayed in his

firefighter position with the City of Newark[.]" The Board

concluded that once it determines that a partial forfeiture is

warranted,

it shall order that benefits be calculated as
if the accrual of pension rights terminated
as of the date the misconduct first occurred
or, if termination as of that date would in
light of the nature and extent of the
misconduct result in an excessive pension or
retirement benefit or in an excessive
forfeiture, a date reasonably calculated to
impose a forfeiture that reflects the nature
and extent of the misconduct and the years of
honorable service.

[N.J.S.A. 43:1-3(d) (emphasis added).]

When reviewing a final State agency determination, we can

intervene only if the decision is arbitrary, capricious,

10 A-4018-15T1
unreasonable, Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997), or

not supported by substantial credible evidence in the record. N.J.

Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric.,

196 N.J. 366, 384-85 (2008). We have articulated this standard

of review as follows:

Under the arbitrary, capricious, and
unreasonable standard, our scope of review is
guided by three major inquiries: (l) whether
the agency's decision conforms with relevant
law; (2) whether the decision is supported by
substantial credible evidence in the record;
and (3) whether, in applying the law to the
facts, the administrative agency clearly erred
in reaching its conclusion.

[Twp. Pharmacy v. Div. of Med. Assistance &
Health Servs., 432 N.J. Super. 273, 283-84
(App. Div. 2013).]

We discern no legal basis to disturb the Board's decision

ordering a partial forfeiture of Jetti's pension benefits. There

is overwhelming evidence of Jetti's misconduct. "The Legislature

vested the PFRS Board of Trustees with 'the general responsibility

for the proper operation of the retirement system.'" In re Town

of Harrison, 440 N.J. Super. 268, 291 (App. Div. 2015) (quoting

N.J.S.A. 43:16A-13(a)(1)). The Stipulation of Settlement between

Jetti and the County of Essex and the City of Newark in no way

precludes the PFRS Board from fulfilling its statutory obligations

as the Trustees of this public pension system. We thus affirm

11 A-4018-15T1
substantially for the reasons expressed by the PFRS Board in its

April 13, 2016 final decision.

Affirmed.

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