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Should a final determination of the discipline not be rendered within those 180 days, the proposal states that the officer shall, commencing on the 181^st calendar day, begin to receive the base salary he/she was being paid at the time of the suspension and shall continue to do so until a final determination on the termination is rendered. Simply put, this addition to the statute would allow officers who are suspended without pay to begin collecting their base pay once again if the appeal of their termination is not resolved within 180 days. It goes without saying that this addition helps to alleviate the problem many officers find themselves in currently, namely being economically starved for an extended amount of time while trying to challenge their removal from employment.    

The proposal also instructs how the 180 day period should be calculated. While the 180 day period seems to be a favorable time period for the officers, it is important to note that this time period might be significantly extended and keep an officer without pay for a period much larger than 180 days. For example, time periods such as: (1) the period between an officer’s termination and the date on which his/her appeal is filed; and (2) the days that accrue during a postponement, should an officer have requested one, will not toll the 180 day period. Therefore, it is imperative that New Jersey public safety officers become intimately familiar with the events which can extend the 180 day time frame should this bill be accepted into law. That way, the officers can maximize their resources efficiently so as to ensure the time frame without pay remains as close to the 180 days as possible.

Next, it is important to note that if the Civil Service Commission denies the officer’s appeal, the officer will be required to reimburse his employing agency or department all of the base salary received during the period of the appeal. Put another way, if an officer has been receiving his base salary after the 180 day period expired and he/she ultimately loses, the officer has to pay all the monies he or she has received. Moreover, the proposal provides that if an officer fails to reimburse the employing agency for the payments, the employing agency may obtain a lien for those amounts on any property and income of the officer, including the officer’s pension, sick and vacation leave to which the officer is entitled.

Finally, the bill directs the Director of the Office of Administrative Law to establish a special unit, known as the Law Enforcement and Firefighter Unit, to deal with removal cases. The unit will be made up of Administrative Law Judges who are qualified and experienced in disciplinary matters and cases which fall under the purview of this statute. As a result of the establishment of this unit, the Office of Administrative Law will be better able to adhere to the 180 day time frame which will, potentially, result in quicker resolutions than what is currently being experienced for all parties involved.

Based on our review of these proposals, I am of the opinion that while many of the proposals are favorable to New Jersey public safety officers, the benefits are somewhat misleading. I believe the Legislature in: (1) installing a deadline for resolving cases regarding the termination of an officer; (2) allowing the officer to regain pay status when appeals are not resolved within that deadline; and (3) establishing the Law Enforcement and Firefighter Unit addresses a number of important concerns, namely forcing these types of cases to be resolved in an expedited fashion and allowing officers certain financial alleviation should an appeal persist for an extended amount of time.

However, (1) the various ways in which the 180 day deadline could be significantly extended; (2) the provision providing reimbursement to the employment agency in the event the appeal is unsuccessful; and (3) permitting a lien on an officer’s property to include his/her pension, severely undermines many of the advantages of the bill. Therefore, it is important that, if this bill passes, officers are mindful of what it specifically includes, excludes, and requires by way of affirmative action on the part of the member or association. Our office will keep apprised of the bill’s progression through the Legislature so make sure to check this blog periodically to ascertain any updates.

The TPAF Board of Trustees has the responsibility for the proper operation of the retirement system. The Board consists of three (3) active or retired members of TPAF, one (1) individual appointed by the other trustees, the State Treasurer, and two (2) individuals appointed by the Governor with advice and consent of the Senate. The Board meets monthly to conduct its business.

Membership in TPAF requires that eligible members be appointed to positions of employment requiring certification by the New Jersey Department of Education as members of regular teaching or professional staff of a public school system in New Jersey. If the position of employment meets the membership criteria, the individuals that occupy the positions are required to enroll within TPAF as a term and condition of employment. Employees of the Department of Education holding unclassified, professional, and certification titles are also eligible for membership.

State Police Retirement System

The State Police Retirement System (“SPRS”) was established in 1965 as the successor to the State Police Retirement and Benevolent Fund (“SPRBF”). The Division of Pensions and Benefits is assigned all administrative functions of the retirement system except for investment of the assets.

The SPRS Board of Trustees has the responsibility for the proper operation of the retirement system. The Board consists of two (2) active or retired members appointed by the Superintendent of the State Police, the State Treasurer, and two (2) members appointed by the Governor with advice and consent of the Senate. The Board meets quarterly to conduct business.

All members of the SPRBF became members of the SPRS in 1965. Further, all individuals who became full-time troopers or commissioned or non-commissioned officers of the Division of State Police after July 1, 1965 are required to enroll in SPRS upon acceptance of employment.

Judicial Retirement System

The Judicial Retirement System (“JRS”) was established on June 1, 1973 after repeal of the laws which provided benefits to certain members of the judiciary and their beneficiaries since 1948. For administrative purposes, the State House Commission acts as the Board of Trustees for the JRS.

Membership for this retirement system is reserved for an elite few. If an individual is a member of the State Judiciary, he or she is required to join the JRS as a term and condition of employment. The JRS covers the Chief Justice and Associate Justices of the State Supreme Court as well as all judges of the New Jersey Superior Court and Tax Court.

For retirement plans that set a retirement age between age 55 and 62, it is generally expected that the employer will make a good faith determination of the typical retirement age for the industry in which the covered workforce is employed. In most instances, the employer will be given deference in setting the retirement age. However, this assumes that the determination is reasonable under the facts and circumstances of the particular situation.

Alternatively, a normal retirement age that is lower than age 55 is presumed to be earlier than the earliest age that is reasonably representative of the typical retirement age for the industry of the relevant covered workforce absent facts and circumstances that demonstrate otherwise.  

Significantly, for our purposes, in the case of a retirement plan where substantially all of the participants in the plan are qualified public safety officers, a normal retirement age of age 50 or later is deemed not to be earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed.  Specifically, the new regulation will provide the following once in effect:

Age 50 safe harbor for qualified public safety employees. A normal retirement age under a plan that is age 50 or later is deemed to be not earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed if substantially all of the participants in the plan are qualified public safety employees (within the meaning of section 72(t)(10)(B)).

Under §72(t)(10)(B), a qualified public safety employee means any employee of a State or political subdivision of a State who provides police protection, firefighting services, or emergency medical services for any area within the jurisdiction of such State or political subdivision. The definition clearly encompasses the members of PFRS.

          Non-government plans are required to adopt these modifications for the first plan year beginning after June 30, 2008. Government plans, such as PFRS, are not subject to the new regulation until plan years beginning on or after January 1, 2009. For PFRS and other State plans, this would mean the regulation would not take effect until July 1, 2009. Consequently, members retiring in the short-term need not be concerned.

          It has become the concern of many labor organizations that these new regulations will preempt the “special retirement” provision of PFRS, which allows members to conceivably retire prior to attaining the age of 50. At this juncture, I am of the opinion that the regulations will not preempt the “special retirement” provision of the PFRS. Moreover, I do not believe these regulations will affect a PFRS member’s ability to retire after establishing twenty-five (25) years of creditable service, even though the member may not have reached the age of 50.     

          Under the wording of the regulations, a normal retirement age of 50 or above is required for a plan in which substantially all of the participants are qualified public safety officers/employees. In addition to the “special retirement” provision, N.J.S.A. 43:16A-5 states in pertinent part:

Any member in service who has attained age 55 years may retire on a service retirement allowance upon filing a written and duly executed application to the retirement system, setting forth at what time, not less than one month subsequent to the filing thereof, he desires to be retired. Any member in service who attains age 65 years shall be retired on a service retirement allowance forthwith on the first day of the next calendar month, except that a member hired prior to January 1, 1987 may remain a member of the system until the member attains age 68 years or 25 years of creditable service, whichever comes first.

[N.J.S.A. 43:16A-5(1).]

          It is our position that N.J.S.A. 43:16A-5 sets the normal retirement age for PFRS at 55 because this is when a member can apply and receive retirement benefits. In addition, the statute sets the mandatory retirement age at 65. Since the normal retirement age is 55, which satisfies the regulations requirements for plans covering qualified public safety officers, PFRS would remain unaffected by the new regulations because it is compliant with same. Furthermore, I believe the “special retirement” provision, which allows members to retire prior to attaining the age of 50 after obtaining twenty-five (25) years of service, is indeed just that, a “special” provision that falls outside of the purview of these regulations. These regulations address the normal retirement ages, whereas N.J.S.A. 43:16A-11.1 specifically deals with the special situation of a member establishing twenty-five (25) years of service. 

          Undoubtedly, many labor organizations across the State will be keeping a close watch upon these regulations. In fact, a letter authored by Frederick Beaver, Director of the State Department of Treasury, has been posted on the State PBA website. In this letter Mr. Beaver concurs with our conclusion that the regulations will not affect PFRS members’ retirement ability upon completion of twenty-five (25) years of service. 

          Our office will be keeping you up to date on this important topic. Periodic updates will be posted regarding the various issues surrounding these regulations as more information becomes available.