                                NOT FOR PUBLICATION WITHOUT THE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-2586-17T1

CHRISTOPHER LYNCH,

          Petitioner-Appellant,

v.

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

          Respondent-Respondent.


                   Argued June 4, 2019 – Decided June 25, 2019

                   Before Judges Messano and Rose.

                   On appeal from the Board of Trustees, Police and
                   Firemen's Retirement System, Department of the
                   Treasury, PFRS No. 3-88180.

                   Samuel J. Halpern argued the cause for appellant.

                   Amy Chung, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Melissa H. Raksa, Assistant
                   Attorney General, of counsel; Porter Ross Strickler,
                   Deputy Attorney General, on the brief.)
PER CURIAM

      Christopher Lynch appeals from a January 9, 2018 final decision of the

Board of Trustees (Board) of the Police and Firemen's Retirement System

(PFRS), imposing a total forfeiture of his pension service and salary credit due

to misconduct, and concluding Lynch was ineligible to apply for accidental

disability retirement benefits (ADRB) because the terms of a settlement

agreement with his employer prohibited his return to work. We affirm.

                                       I.

      We commence our review with a discussion of the governing legal

principles to give context to the Board's decision, recognizing "[o]ur review of

administrative agency action is limited."     Russo v. Bd. of Trs., Police &

Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts presume the

validity of the "administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). For those reasons,

we will not overturn an agency decision "unless there is a clear showing that it

is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Stein v. Dep't of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div.

2019) (quoting J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017)). Nor will

we overturn an agency decision merely because we would have come to a


                                                                         A-2586-17T1
                                       2
different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). We are not,

however, bound by the "agency's interpretation of a statute or its determination

of a strictly legal issue." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189, 196 (2007).

      A public employee must provide "honorable service" to receive pension

or retirement benefits.   N.J.S.A. 43:1-3(a); N.J.A.C. 17:1-6.1(a); see also

Corvelli v. Bd. of Trs., Police & Firemen's Ret. Sys., 130 N.J. 539, 550 (1992)

(noting all of New Jersey's public pension statutes have an implied requirement

of honorable service, and forfeiture can be ordered for employees who violate

that requirement). The Board is authorized to order forfeiture, in who le or in

part, "for misconduct occurring during the member's public service which

renders the member's service or part thereof dishonorable." N.J.S.A. 43:1 -3(b);

N.J.A.C. 17:1-6.1(a), (c). Ordinarily, to require forfeiture of the portion of a

member's pension that accrued prior to the criminal activity, the Board must find

that the misconduct was related to the member's service. Masse v. Bd. of Trs.,

Pub. Emps.' Ret. Sys., 87 N.J. 252, 263 (1981). Nevertheless, forfeiture is not

limited to misconduct resulting in a criminal conviction. Corvelli, 130 N.J. at

552. Rather, "[t]he term 'honorable service' . . . is sufficiently generic to




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                                        3
encompass a broad range of misconduct bearing on the forfeiture decision,

including but not limited to criminal conviction." Ibid.

      Forfeiture of a public employee's pension is governed by the factors

enumerated by our Supreme Court in Uricoli v. Police & Firemen's Retirement

System, 91 N.J. 62, 77-78 (1982), and codified in N.J.S.A. 43:1-3(c):

            (1) the member's length of service; (2) the basis for
            retirement; (3) the extent to which the member's
            pension has vested; (4) the duties of the particular
            member; (5) the member's public employment history
            and record covered under the retirement system; (6) any
            other public employment or service; (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 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 [(statutory or
            Uricoli factors)].

Of particular relevance here, the Board may attribute more weight to factors

seven, eight, and nine, when applicable.      See Corvelli, 130 N.J. at 552-53

(holding total pension forfeiture "was justified by . . . application of Uricoli

factors seven, eight, and nine").



                                                                         A-2586-17T1
                                        4
                                       II.

      Applying those legal standards to the present case, we turn to the pertinent

facts and procedural history, which are largely undisputed. Lynch was hired by

the Sussex County (County) Sheriff's Office (SCSO) as a corrections officer,

and established membership in the PFRS in 1999. During the course of his

employment, Lynch received several commendations and achievements. He

was promoted to sergeant in 2008, and then to lieutenant in 2011.

      In February 2015, however, the SCSO issued a Preliminary Notice of

Disciplinary Action (PNDA) charging Lynch with violations of various

administrative rules, including failure to perform his duties.      The charges

stemmed from an internal affairs investigation of an inmate's possession of a

cell phone, contrary to the jail's regulations. As the commanding officer on

duty, Lynch failed to ensure the inmate was properly searched when he was

readmitted to the jail from a hospital. Lynch also failed to take appropriate

action after receiving conflicting reports about the inmate's claim he had a

catheter.

      In April 2015, another internal affairs investigation revealed Lynch had

purchased steroids for personal use from a corrections officer. Lynch apparently

knew about the officer's use and distribution of illegal narcotics for more than


                                                                          A-2586-17T1
                                        5
one year. Following a positive drug test, the SCSO issued a PNDA to Lynch

charging him with various administrative violations, including failure to

perform his duties, insubordination, and conduct unbecoming a public

employee. Lynch was suspended without pay.

      In June 2015, Lynch filed an application for ADRB regarding an assault

that occurred five months earlier by an inmate who was a known prostitute.

During the course of his attempt to restrain the inmate, she bit Lynch's hand,

drawing blood. Lynch claimed he suffered from "a great deal of stress and

anxiety" as a result, fearing he might have contracted a communicable disease

from the inmate.    The following month, Lynch filed an amended ADRB

application, contending he sustained injuries during a previous assault in

October 2014, and witnessed an assault of his officer in July 2013.

      In August 2015, Lynch, the County, and the SCSO executed a settlement

agreement. Among other things, the County and the SCSO agreed to withdraw

the disciplinary charges. In exchange, Lynch agreed to irrevocably resign from

the SCSO as of August 10, 2015, and to "be barred from future law enforcement

employment in the State of New Jersey."        The settlement agreement also

acknowledged that Lynch "intend[ed] to apply for a disability pension."




                                                                          A-2586-17T1
                                       6
      On March 21, 2016, the Board reviewed the administrative charg es filed

against Lynch and determined his public service had been dishonorable. The

Board issued an initial decision ordering a total forfeiture of Lynch's service and

salary credit earned in his fifteen years and nine months of public employment.

The Board also determined Lynch's application for ADRB was rendered "moot

because his total service and salary credit [we]re forfeited." The Board denied

petitioner's ensuing application for reconsideration but approved his request for

a hearing, and the matter was transmitted to the Office of Administrative Law

for a hearing before an Administrative Law Judge (ALJ).

      At the hearing, the Board presented the testimony of the SCSO Internal

Affairs Investigator John Schanstra, who conducted both investigations, an d

Lynch testified in his own behalf. Notably, Lynch admitted he purchased

steroids from the corrections officer on "two or three" occasions for a few

months prior to March 2015. Contrary to his statement to Schanstra, Lynch

claimed he "just became aware of [the officer's drug-dealing] role a couple of

months before" the investigation commenced. Lynch said the January 2015

assault by the female inmate triggered his steroid use.

      The ALJ also considered documentary evidence, including the internal

affairs reports, the PNDAs, the settlement agreement, and Lynch's applications


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                                        7
for ADRB.      Thereafter, the ALJ issued an initial decision, evaluating the

statutory factors and ultimately modified the Board's decision.

      Regarding the cell phone incident, the ALJ found "while Lynch's conduct

may have been negligent, perhaps even grossly negligent or reckless . . . [his]

conduct was not dishonorable or the type of conduct contemplated by the

forfeiture statute." Although the ALJ acknowledged the disciplinary charges

had been settled, she also "observed that the SCSO sought a forty-five day

suspension."   Thus, the ALJ reasoned "even if Lynch's conduct had been

dishonorable, any forfeiture in excess of the penalty sought by the appointing

authority would be excessive."        Accordingly, the ALJ recommended no

forfeiture for the cell phone incident.

      Turning to the steroids incident, the ALJ found "there [wa]s no question

of Lynch's guilt and culpability." The ALJ elaborated:

            [Lynch] admitted to knowing about [the officer's]
            illegal activity; he admitted to the purchase and use of
            illegal steroids, including one transaction in the parking
            garage of the Sussex County Jail; and he tested positive
            for illegal steroids. Lynch's stated reason for the use of
            illegal steroids was that it was a lapse in judgment as a
            result of the January 2015 assault, whereby he was
            humiliated and made to feel inferior in front of his staff.
            While that and the October 2014 assault may otherwise
            have been plausible reasons, it is noted that Lynch's
            knowledge of [the officer]'s illegal activity and his
            failure to take action predated both the January 2015

                                                                          A-2586-17T1
                                          8
             and October 2014 assaults. Further, by his own
             admission, Lynch did not report [the officer] because
             Lynch was using illegal steroids himself.

      However, the ALJ concluded "Lynch's conduct was not so dishonorable

as to require total forfeiture of all pension benefits."       Rather, the ALJ

recommended a partial forfeiture, commencing January 1, 2014, i.e., the date on

which she deemed Lynch first became aware of the officer's drug distribution.

      The Board issued a final decision dated January 9, 2018. Although the

Board accepted the ALJ's factual findings, it rejected the ALJ's legal

conclusions, finding her analysis of the statutory factors was incorre ct. The

Board then considered the statutory factors. Citing Corvelli, 130 N.J. at 552-

53, the Board afforded "considerable weight" to statutory factors seven ("the

nature of the misconduct"), eight ("the relationship between the misconduct and

. . . Lynch's position as a [c]orrections [l]ieutenant"), and nine ("Lynch's

motives").

      Regarding the cell phone incident, the Board cited the testimony of

Schanstra, emphasizing an inmate's possession of a cell phone is "a threat to the

safety of the jail . . . it could be used to call others or take photographs or

schematics of safety and security measures." Accordingly, the Board found

Lynch's inactions "endangered the entire jail population."      The Board thus


                                                                         A-2586-17T1
                                       9
concluded, the "egregious nature" of this charge, alone, "warrant[ed] a total

forfeiture."

      Further, the Board determined Lynch's involvement with illegal steroids

represented "serious and significant episodes of misconduct" and his failure to

take any action against the officer, were both "directly related" to his job as a

corrections lieutenant.    Finding those "incidents reveal[ed] a complete

dereliction of duty," the Board concluded total forfeiture was warranted.

      Because Lynch could not return to work under the terms of his settlement

agreement,1 the Board also concluded Lynch did not leave work due to a

disabling medical condition. Accordingly, the Board determined Lynch was not

eligible for ADRB.

      On appeal, Lynch raises the following points for our consideration:

               POINT I

               THE PFRS BOARD'S IMPOSITION OF TOTAL
               FORFEITURE OF LYNCH'S PENSION SERVICE
               WAS WHOLLY UNWARRANTED UNDER A FAIR
               AND BALANCED APPLICATION OF THE
               [ELEVEN-]FACTOR URICOLI TEST.




1
  See N.J.S.A. 43:16A-8(2) (requiring beneficiaries who retire on disability
benefits to return to duty after their disability "has vanished or has materially
diminished").
                                                                         A-2586-17T1
                                      10
            POINT II

            THE BOARD IS BARRED FROM RAISING THE
            SEPARATION    OF   SERVICE     RULE     TO
            DISQUALIFY LYNCH BECAUSE THIS ISSUE WAS
            NOT RAISED BELOW AND IS IN ANY EVENT
            INAPPLICABLE BECAUSE N.J.A.C. 17:1-6.4 WAS
            NOT PROMULGATED UNTIL WELL AFTER THE
            DISCIPLINARY CHARGES WERE MADE AND
            THE SETTLEMENT WAS EXECUTED.

            POINT III

            THE BOARD IS NOT BARRED BY THE
            SETTLEMENT AGREEMENT BETWEEN LYNCH
            AND HIS EMPLOYER FROM ANY RETURN TO
            WORK ORDER.

      Regarding Lynch's first point, we note at the outset that Lynch does not

dispute the Board's findings regarding each statutory factor, nor does he cite any

binding authority to support his argument. Rather, Lynch references his nearly

sixteen years of service, claiming "[a]ll service rendered prior to January 1, 2014

was deemed untainted and honorable" by the ALJ. Conversely, the Board cites

one of its prior decisions, "impos[ing] a total forfeiture of over [twenty] years

of service credit on a correction officer who was convicted of conspiring to bring

a cell phone into a prison." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

587 (1988) (recognizing a reviewing court should give "due regard also to the

agency's expertise where such expertise is a pertinent factor").


                                                                           A-2586-17T1
                                       11
      Having reviewed the record, we are convinced there is sufficient credible

evidence in the record to support the Board's evaluation of the statutory factors

and its decision that a total forfeiture of Lynch's public service and salary credit

was warranted under the circumstances. See J.B., 229 N.J. at 43. The Board's

decision was based on two separate incidents, both of which clearly constituted

a breach of honorable public service. See N.J.S.A. 43:1-3(b). Those incidents,

together, dispel Lynch's argument that he "acted impulsively in a moment of

weakness and vulnerability."        Rather, the record supports the Board's

determination that, under the circumstances of both incidents, Lynch's service

was dishonorable and related to his duties as a high-ranking lieutenant. See

Masse, 87 N.J. at 263.

      Turning to Lynch's remaining points, we agree that his separation from

service was not raised by the Board in its initial decision and, as such, it was not

considered by the ALJ. Nonetheless, because we find the Board's decision

imposing a total forfeiture of Lynch's service and salary credit was warranted,

his application for ADRB was rendered moot. Therefore, we need not consider

the arguments raised in his remaining points. 2


2
  Pursuant to Rule 2:6-11(d), the Board filed a supplemental letter brief, citing
our recent decision in Cardinale v. Board of Trustees, Police & Firemen's


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                                        12
      To the extent we have not specifically addressed Lynch's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in our written opinion. R. 2:11-3(e)(1)(E). Pursuant to our "limited" standard

of review, Russo, 206 N.J. at 27, we affirm substantially for the reasons

expressed in the Board's final decision, which "is supported by sufficient

credible evidence on the record as a whole." R. 2:11-3(e)(1)(D).

      Affirmed.




Retirement System, 458 N.J. Super 260 (App. Div. 2019). In Cardinale, we
determined a PFRS member's irrevocable resignation from employment "renders
the individual ineligible for ordinary disability benefits." Id. at 262. As we
stated, however, the Board's initial decision does not mention Lynch's inability
to return to work.
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                                      13
