Most recently the new Jersey Superior Court, Appellate Division issued a decision in the matter of Behar v. Board of Trustees, Public Employees Retirement System, Docket Number A-0296-22, that discusses the very real pitfalls of post-retirement employment for public employees in the state of New Jersey. We want to bring these pitfalls to your attention and help you take prophylactic measures to avoid the same wherever and whenever possible.

Behar worked for the Division of Criminal Justice (DCJ) as a Detective 2 State Investigator. On March 13, 2017, he applied for a Special Service Retirement from PERS meaning that he had twenty five (25) years of pensionable service credit and was thus eligible to retire given that he was a sworn law enforcement officer. On that date, Behar completed an Application for Retirement Allowance and acknowledged three terms and conditions of retirement by checking off boxes on the application which state:

  • I agree to comply with all of the retirement application terms and conditions.
  • I certify that I have made no pre-arrangement to return to public employment after retirement in any capacity.
  • I certify that I have read the Post-Retirement Employment Restrictions.

After filing the application the Board approved the same at its regular meeting and sent a letter stating: [I]f you are considering working after retirement, you should be aware of the restrictions imposed by laws and regulations governing post-retirement employment. The letter also cautioned that it is your responsibility to inform your prospective employer that you are receiving retirement benefits from a New Jersey public retirement system and that his retirement benefits may be suspended or even cancelled entirely in the event of a violation, and you will be responsible for the repayment of benefits you were not entitled to receive.

In addition, the letter advised Behar if he became re-employed post retirement, he may be required to “re-enroll” in his former retirement system or a different retirement system. Behar was instructed to read “Fact Sheet #86,” a publication of the Division of Pensions and Benefits, regarding “Post- Retirement Employment Restrictions.”

In August 2021, Behar applied for an investigator position with the DOL, which is covered by PERS. He participated in a video interview and stated that he had retired from the DCJ and was receiving a State pension. On January 3, 2022, after collecting PERS retirement benefits for four and-a-half years, Behar began working thirty-five hours per week for the DOL.

On January 28, 2022, the Division received a Notification of Employment After Retirement Form from the DOL’s External Audit Unit advising of Behar’scnew post-retirement employment. Based on its investigation, the Division concluded Behar was required to re-enroll in PERS because he was employed full-time after retirement in a PERS covered position, citing N.J.S.A. 15A-57.2 and N.J.S.A. 43:15A-7(d)(4).

On February 3, 2022, the Division sent a letter to Behar and the DOL advising he was required to re-enroll in PERS, had to repay any retirement benefits he received after his enrollment, and that his pension benefit would be cancelled. The Division determined it was entitled to recoup the retirement benefits Behar received while he should have been enrolled in PERS. The Division informed Behar that he must terminate all PERS-covered employment in order to receive retirement benefits again, and he would have to re-apply for retirement benefits thereafter. As a result, the Division suspended payment of Behar’s retirement benefits effective March 1, 2022.

Behar appealed the matter to the Board claiming the DOL interview panel did not inform him that his re-employment would affect his retirement benefits. He also blamed the Division for not contacting him before he started working for the DOL. The Board rejected these arguments and affirmed. The Board considered Behar’s appeal and determined his return to full-time employment with the DOL violated PERS statutes and regulations regarding post-retirement employment. The Board decided Behar was an active employee in a PERS eligible position when he began working for the DOL, and thus, he was required to reimburse the retirement benefits he improperly receive. Bear appealed the decision to the Appellate Division

What is important to note in this case is that the Appellate Division has a very limited scope in reviewing matters such as Behar’s. The Court noted that a strong presumption of reasonableness attaches to [an agency decision] and the Court will not disturb that decision unless it is arbitrary, capricious and unreasonable, contrary to applicable law… or . . . not supported by substantial credible evidence in the record as a whole. Stallworth, 208 N.J. at 194. Furthermore, the Court was clear in stating that We [the Court] “may not substitute [our] own judgment for the agency’s, even though [we] might have reached a different result. Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)).

As a result of the case law cited above, the Court affirmed the Pension board’s decision stating that The Board had the statutory obligation to cancel Behar’s benefits because he became re-employed in a position with the DOL eligible for membership in PERS. N.J.S.A. 43:15A-57.2(a). Such an individual shall be re-enrolled in PERS and shall contribute thereto at a rate based on his age at the time of re- enrollment. N.J.S.A. 43:15A-57.2(a).

The reason that we are bringing this case to your attention is to inform you of the statutory post-retirement re-employment restrictions that are in place for public employees in the State of New Jersey. These restrictions do not just exist for law enforcement officers and individuals that retire and collect “special retirement pensions” in the state of New Jersey. Instead, restrictions exist in each of the retirement systems and apply for not only regular retirement pensions but also disability pensions as well.

If you have questions regarding situations such as the one referenced in this blog post, or questions regarding employment if you are receiving disability retirement benefits, consult with counsel that practices in this area of the law. Being one of these attorneys that practices and consults on public employee retirements, we often look into such situations and call on the Board of Trustees from the various retirement systems to issue a ruling on the matter before the member undertakes affirmative action that can have dire consequences. As they often say—An Ounce of Prevention is Worth Far More than a Pound of Cure.

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Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog (www.njpublicsafetyofficers.com) approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.