Procaccino v. State , 87 N.J. 265 ( 1981 )

The opinion of the Court was delivered by

SCHREIBER, J.

Plaintiff, Procaccino, began working with the New Jersey Department of Transportation in 1948. When he retired from his position as title examiner on April 1, 1978, he was 54 years old and had performed his job satisfactorily for more than 32 years.

Beginning in 1954 he was also employed during his off-hours as a constable for the Mercer County District Court. As a result of an investigation into his activities as a constable, he was suspended and later discharged from that job.

In January 1978 he was indicted for improperly appropriating funds entrusted to him while in county employ. The alleged misconduct occurred between September 29, 1975 and July 30, 1976.

In March 1979, plaintiff plead guilty to misconduct in office. On June 1,1979, he was sentenced to an 18 month jail term, but the sentence was suspended subject to probation for one year and restitution of the funds taken. We were informed at oral argument that the restitution had been made and the probationary period served.

In conjunction with his retirement from the Department of Transportation, plaintiff sought his pension from the Public Employees Retirement System (PERS), effective April 1, 1978. The Board of Trustees discontinued processing his application because of the pending indictment. Following the plea of guilty, the Board held that the “conviction constitutes dishonorable service as a matter of law” and that therefore plaintiff was not eligible for a pension. Plaintiff appealed to the Appellate Division, which affirmed. The court noted that conviction of a crime defeats the honorable service requirement if the offense involves (1) administration of the public employment or (2) moral turpitude even if not job-related. It affirmed the Board’s determination that, though the conduct was unrelated to his employment in the Department of Transportation, the offense was one of moral turpitude. The Appellate Division acknowledged the “harsh result,” commenting that “perhaps [a] more equitable result would be reached under .. . several recent decisions of other jurisdictions ... which take issue with a forfeiture imposed when, as here, a public employee who is otherwise eligible to receive a service pension is disqualified because of his unlawful conduct.” We granted plaintiff’s petition for certification. 85 N.J. 471 (1981).

Plaintiff seeks a pension under N.J.S.A. 43:15A-41b, asserting he may retire early having established 25 years of “creditable service” before reaching age 60. The principles which we have adopted this day in Masse v. State of N.J., Dep’t of Treasury, 87 N.J. 252 (1981), are equally applicable here. The alleged offense was unrelated to his employment by the State in the Department of Transportation; his job as a constable did not taint his work as a title examiner; he was not removed from his job in the Department of Transportation for misconduct' or delinquency; and he had performed creditable service for over 25 years before the misconduct as a constable occurred.

Reversed and remanded to the Public Employees’ Retirement System to process plaintiff’s application for a pension.