CHRISTOPHER LYNCH VS. BOARD OF TRUSTEES (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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
    A-2586-17T1
    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
    A-2586-17T1
    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
    A-2586-17T1
    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.
    A-2586-17T1
    13