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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2698-16T3


IN THE MATTER OF
THOMAS J. EVANS
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM ENROLLMENT ELIGIBILITY.
_______________________________

           Argued April 23, 2018 – Decided July 24, 2018

           Before Judges Fasciale and Sumners.

           On appeal from the New Jersey Department of
           Treasury, Division of Pensions and Benefits.

           Michael A. Casale argued             the    cause    for
           appellant Thomas J. Evans.

           Nicholas L. DePaolo, Deputy Attorney General,
           argued the cause for respondent Board of
           Trustees, Public Employees' Retirement System
           (Gurbir S. Grewal, Attorney General, attorney;
           Melissa H. Raksa, Assistant Attorney General,
           of counsel; Nicholas L. DePaolo, on the
           brief).

PER CURIAM

     Thomas J. Evans, a Nutley Township (the Township) elected

official, appeals the final agency decision of the Board of

Trustees (Board), Public Employees' Retirement System (PERS), that

he is ineligible to enroll in its pension system because he was
not enrolled – despite his request to a Township employee to do

so – prior to a change in the law that prevented his enrollment.

Evans contends that the error in not enrolling him should be

rectified by the Board through the correction of error statute,

N.J.S.A. 43:15A-54.      Because the Board failed to address Evans'

argument that the error should be corrected, we remand.

     We briefly summarize the essential facts in the record before

the Board.      Evans was elected as a Commissioner for the Township

in 2003, and has been continuously re-elected through the time

period relevant to this appeal.           With his election, he had the

option to enroll in PERS under N.J.S.A. 43:15A-7 because he was

not a military veteran.1     Evans contended he exercised that option

by asking the Township payroll clerk to enroll him.            He further

contended that, after noticing he had not received any information

from PERS regarding his pension, he inquired with the payroll

clerk, who reportedly claimed she would look into the situation.

However, Evans later discovered that he had not been enrolled.

     On   two    occasions   in   2009,    the   Township   electronically

submitted Evans' application for PERS' enrollment; however, it was

rejected because of reform legislation, Chapter 92, P.L. 2007.



1
   N.J.S.A. 43:15A-7 made it mandatory for PERS enrollment of an
elected official who qualified as a military veteran.


                                     2                             A-2698-16T3
Under the new law, elected officials who had not been enrolled in

PERS prior to July 1, 2007, were ineligible to enroll.2                  N.J.S.A.

43:15A-7(d).

     It was not until four years later that Evans followed up with

PERS by writing an October 24, 2013 letter to the agency detailing

how the former payroll clerk had mistakenly failed to satisfy his

request to enroll him in PERS.               Two months later, the Acting

Director, Divisions of Pensions and Benefits, wrote to a State

assemblyman     in    response    to    his     inquiry      regarding        Evans'

eligibility to enroll in PERS; explaining that Evans was not

eligible because he failed to enroll prior to the July 1, 2007

effective date of the new law, which no longer allowed PERS

enrollment    "to    any   previously       elected    official   who    had      not

exercised his or her option to enroll in the [PERS] retirement

system."3

     After corresponding with the Governor's Counsel and the Board

Secretary,     the   Township's    Attorney,          on   September    2,     2016,



2
   Moreover, the enrolled elected official had to be continuously
elected and enrolled after July 1, 2007 to remain in PERS.
N.J.S.A. 43:15A-7(d).
3
   Under the new legislation, the Defined Contribution Retirement
Program was created for eligible public officials who had not been
enrolled in PERS prior to July 1, 2007, or if enrolled before that
date, failed to maintain continuous membership thereafter.
N.J.S.A. 43:15C-2.

                                        3                                    A-2698-16T3
forwarded the Board Secretary affidavits from Evans and three

other Township officials concerning Evans' efforts to enroll in

PERS.   No affidavit was submitted from the aforementioned payroll

clerk because she passed away in 2009.     In Evans' affidavit, he

requested that the Board consider correcting the Township's error

in not enrolling him "consistent with the [Board's] authority

established in the [c]orrection of [e]rrors [s]tatute, N.J.S.A.

43:8A-21."   The statute provides:

           Any person who shall knowingly make any false
           statement or shall falsify or permit to be
           falsified any record or records of the pension
           fund in any attempt to defraud such pension
           fund as a result of such act shall be guilty
           of a misdemeanor and shall be punishable
           therefor under the laws of the State of New
           Jersey.   Should any change or error in the
           records result in any member or person
           receiving from the pension fund more or less
           than he would have been entitled to receive
           had the records been correct, the board of
           trustees shall correct such error, and as far
           as practicable, shall adjust the payments in
           such manner that the actuarial equivalent of
           the   benefit   to  which   such   member   or
           beneficiary was correctly entitled shall be
           paid.

           [N.J.S.A. 43:8A-21.]

     At its meeting on September 21, the Board considered the

affidavits, but determined that Evans was not eligible to enroll

in PERS because no enrollment application was submitted for him.

In the Board Secretary's September 22 letter to Evans summarizing


                                  4                         A-2698-16T3
the   Board's    decision,   there     was   no   mention     that   the     Board

considered but rejected application of the correction of errors

statute to enroll him into PERS.             The Board's meeting minutes

reflecting its decision also made no mention of the statute.

      Evans appealed the Board's decision; contending the Board did

not address whether he should be eligible to enroll under "the

[c]orrection     of    [e]rrors   [s]tatute,       N.J.S.A.    43:8A-21"        and

requested a hearing before the Office of Administrative Law (OAL).

The Board, finding the appeal was solely a question of law,

declined to transmit the matter to the OAL as a contested hearing,

and denied the appeal for the same reasons expressed in the minutes

of the September 21 Board meeting and in the Board Secretary's

September   22   letter.      Again,    there     was   no   consideration        of

enrolling Evans into PERS retroactively based upon a correction

of the payroll clerk's alleged error.

      Before us, Evans contends that the Board should have enrolled

him nun pro tunc because even though the pension reform legislation

that makes it ineligible for him to enroll in PERS after July 1,

2007, a different correction of errors statute, N.J.S.A. 43:15A-

54, should have been applied to alleviate the payroll clerk's

failure to enroll him three years before the effective date of the

pension reform.       Evans no longer relies upon N.J.S.A. 43:8A-21 as



                                       5                                   A-2698-16T3
a basis to gain enrollment in PERS as he previously did before the

Board.    N.J.S.A. 43:15A-54 provides:

            If any change or error results in an employee
            or beneficiary receiving from the retirement
            system more or less than he would have been
            entitled to receive, then on discovery of the
            error, the retirement system shall correct it
            and, so far as practicable, adjust the
            payments in such a manner that the actuarial
            equivalent of the benefit to which he was
            correctly entitled shall be paid.

            The application of any member for prior
            service credit or credit for all previous
            service shall be approved if the employer, for
            whom the service was rendered stipulates, in
            writing, to the retirement system that the
            information necessary for the award of such
            credit was not presented to the employee and
            agrees to make the necessary additional
            contribution to the contingent reserve fund
            and   the   employee   makes    the   required
            contributions, if any.

            [N.J.S.A. 43:15A-54.]

        Evans cites the long-standing decision in Burkhart v. Pub.

Emps. Ret. Sys., State, Dep't of Treasury, 158 N.J. Super. 414,

421 (App. Div. 1978), which involved the calculation of the

petitioners' costs to purchase credit for missed time of PERS

enrollment, where this court held "N.J.S.A. 43:15A-54 was adopted

. . .    as a provision for the correction of errors, both as to the

amount of pension benefits and the inclusion of members erroneously

excluded by prior oversights."      He further relies upon Cavalieri

v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 539

                                    6                        A-2698-16T3
(App. Div. 2004) (quoting Burkhart, 158 N.J. at 423), where we

ruled that "[t]he statute 'should be liberally construed and

administered in favor of the persons intended to be benefited

thereby.'"

     Our role in reviewing the decision of an administrative agency

is limited. In re Stallworth, 208 N.J. 182, 194 (2011).   We accord

a strong presumption of reasonableness to an agency's exercise of

its statutorily delegated responsibility, City of Newark v. Nat.

Res. Council, 82 N.J. 530, 539 (1980), and defer to its fact

finding, Utley v. Bd. of Review, 194 N.J. 534, 551 (2008).          We

will not upset the determination of an administrative agency absent

a showing that it was arbitrary, capricious, or unreasonable; that

it lacked fair support in the evidence; or that it violated

legislative policies.   Lavezzi v. State, 219 N.J. 163, 171 (2014);

Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

     Here, we are unable to determine whether the Board violated

its legislative policies because it failed to address Evans'

contention that the payroll clerk's error – which is seemingly

accepted by the Board given its focus on the conclusion that no

enrollment application for Evans was submitted and that there was

no disputed fact requiring a contested hearing – in not enrolling

him into PERS should be corrected retroactively by the Board.       We

are mindful that Evans now cites N.J.S.A. 43:15A-54 and its

                                 7                           A-2698-16T3
interpretation in Burkhart, and not N.J.S.A. 43:8A-21 as he did

before the Board.   Nevertheless, Evans made the Board fully aware

that he was seeking relief under a correction of error theory.      In

fact, after the Board's initial rejection of his request to be

enrolled in PERS, he appealed to the Board arguing that the Board

failed to "dispute" his argument that the payroll clerk's error

should be corrected under N.J.S.A. 43:8A-21 to effectuate his

enrollment. The Board is obligated to interpret and apply statutes

under its purview; it should have considered the applicability of

N.J.S.A. 43:8A-21, as well as N.J.S.A. 43:15A-54 given the factual

circumstances presented by Evans' enrollment request.

     Accordingly, we are constrained to remand this matter to the

Board to fully consider and state its conclusions regarding these

legal issues.   We leave it to the Board's discretion to allow any

additional legal arguments to be raised.    Of course, we take no

position as to whether Evans is entitled to enrollment in PERS

under either correction of error statute discussed herein.

     Reversed and remanded.   We do not retain jurisdiction.




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