The opinion
NOT FOR PUBLICATION WITHOUT THE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-2657-15
LATASHA WALKER-
HARRISON,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
____________________________
Submitted March 24, 2025 – Decided April 1, 2025
Before Judges Sabatino and Jablonski.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. xx9405.
Schumann Halon Margulies LLC, attorneys for
appellant (Nirmalan Nagulendran, on the briefs).
Gebhardt & Kiefer, PC, attorneys for respondent
(Leslie A. Parikh, on the brief).
PER CURIAM
Petitioner Latasha Walker-Harrison, a retired senior corrections officer of
the New Jersey Department of Corrections ("DOC"), appeals the December 14,
2015 final agency decision of the Board of Trustees of the Police and Firemen's
Retirement System ("PFRS") forfeiting her State pension. The Board forfeited
appellant's pension because her public service was rendered dishonorable due to
her participation in a criminal conspiracy to smuggle a cell phone into the prison
for the use of an inmate. Appellant was tried by a jury and convicted of second -
degree criminal conspiracy. The court sentenced her to a five-year custodial
term, of which she served sixteen months.
Appellant contends the Board's decision was an abuse of discretion
because it allegedly misapplied the multi-factor criteria of Uricoli v. Board of
Trustees, Police & Firemen's Retirement System, 91 N.J. 62 (1982), in finding
that her misconduct warranted total forfeiture. She asserts that a conviction for
conspiring to provide an inmate with a cell phone, after twenty years of
otherwise unblemished service, does not warrant total forfeiture. In that regard,
she relies on the recommended disposition of an administrative law judge
("ALJ"), who found total forfeiture inappropriate and instead recommended that
appellant receive only a partial five-year forfeiture.
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Having considered the appeal in light of the evidence in the record, the
applicable law, and our limited standard of review, we affirm the final agency
determination of total forfeiture. The Board reasonably applied the Uricoli
factors in a manner that was justified and supported by the pertinent evidence.
The decision was neither arbitrary nor capricious.
I.
The facts underlying appellant's wrongdoing have already been detailed
in our unpublished opinion affirming the criminal conviction of her co-
defendant, Ardones Livingston. We incorporate those facts by reference here.
See State v. Livingston, No. A-1170-12 (App. Div. Sept. 16, 2014).
Appellant had been employed as a corrections officer at the Adult
Diagnostic and Treatment Center ("ADTC") through January 2008, when she
was removed for allegedly fraternizing with an inmate. She was eventually
reinstated pursuant to a settlement agreement, but did not return on site to the
workplace.
Appellant's employment with the DOC terminated on October 1, 2009.
She applied to the Board for service retirement effective as of that date, based
on service time of twenty years and three months. The Board approved her
service retirement in January 2010.
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Appellant and Livingston were indicted in October 2010. The State's
proofs at the criminal trial established that appellant and Livingston took part in
a conspiracy to smuggle a cell phone into the ADTC in exchange for money. In
February 2009 Frank Rodriguez, an inmate at the ADTC who had been convicted
of sexual assault and other serious crimes, was found to be in possession of a
cell phone in violation of prison protocols. Id. at 2. Recordings of telephone
conversations played for the jury revealed that Rodgriguez had an ongoing
relationship with Traci Baio, a former ADTC employee. Ibid. Rodriguez had
instructed Baio to send the phone, referred to as "the toy," to appellant, and he
provided Baio with appellant's mailing address. Id. at 3. He also provided Baio
with Livingston's phone number, instructing Baio to leave a message saying,
"the money will be there by the end of the week." Ibid. Rodriguez told Baio he
had paid "them" (referring to appellant and Livingston) the sum of $170 from
his facility account and had borrowed an additional $150. Ibid.
A local postmaster testified that appellant picked up a package at the post
office on January 8, 2009, consistent with the conspiratorial plans. Ibid. In
addition, phone records documented multiple calls between Rodriguez's phone
number and those of Livingston and appellant during that period. Ibid.
Shortly thereafter, the cell phone was found in Rodriguez's possession at
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the prison. Id. at 2. As our previous opinion noted, "[f]or security reasons, the
[DOC] strictly prohibits the use of cell phones in a correctional facility like
ADTC and neither inmates nor corrections officer may possess them 'within the
secured perimeter.'" Ibid.
The criminal case was tried in June 2012 and the jury found appellant
guilty of second-degree conspiracy. Id. at 1. In July 2012, the court sentenced
appellant to a five-year custodial term. The sentencing judge summarized
appellant's crime as follows: "[S]he had procured a cell phone and conspired to
give it to another active DOC employee to bring into the State prison; and also
had a forty-four-minute Valentine’s Day conversation with an inmate who had
this phone."
Appellant did not appeal her conviction nor sentence.
On August 9, 2013, the Division of Pensions and Benefits suspended
appellant's retirement checks due to her incarceration.
Appellant was released in November 2013, having served sixteen months.
Appellant continues to claim she had nothing to do with the cell-phone incident,
despite the jury's findings and the phone record evidence.
The PFRS thereafter sought a total forfeiture of appellant's pension. The
contested case was referred to an ALJ for hearing. Appellant was the sole
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witness. She continued to maintain her innocence of the phone-smuggling
conspiracy. She also emphasized her infraction-free work history. She further
noted that she was not actively working at the ADTC at the time of the phone
conspiracy. Appellant did concede, however, that "[k]eeping cell phones out of
our prisons is a major safety and security issue because inmates who can
communicate surreptitiously with associates outside of prison can participate in
criminal activity that pose[s] a threat both inside and outside the prison walls."
On September 15, 2015, the ALJ issued a recommended disposition. The
ALJ found that appellant had engaged in workplace-related misconduct, as
proven at the criminal trial, but that her wrongdoing was not sufficiently
egregious to warrant total forfeiture of her pension. Instead, the ALJ
recommended a lesser sanction of a partial forfeiture of five years, given
appellant's twenty years of otherwise honorable service.
The PFRS took exception to the ALJ's lesser sanction, and the matter was
referred to the Board. At its meeting on October 19, 2015, the Board voted to
adopt the ALJ’s findings of fact but rejected the recommendation of partial
forfeiture of appellant's PFRS service and salary credit. Instead, based on the
ALJ’s factual findings and the Board’s analysis of the Uricoli factors,1 the Board
1
We identify and discuss the Uricoli factors in our analysis in Part II, infra.
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voted for total forfeiture.
The Board noted in its decision that our case law does not require that
each of the eleven Uricoli factors be weighted equally, and that a pension board
may reasonably put more weight on factors seven (the nature of the misconduct
or crime), eight (the relationship between the misconduct and the member's
public duties), and nine (the degree of moral turpitude or culpability). In taking
all the Uricoli factors into consideration, the Board afforded more weight to
factors seven, eight, and nine and determined that the balance weighed in favor
of a total forfeiture.
The Board explicitly rejected as incorrect the ALJ's characterization of the
Uricoli decision as requiring proof of continuous misconduct with multiple
incidents before significant service time can be forfeited. The Board recognized
that, although appellant was not convicted of an enumerated offense under
N.J.S.A. 43:1-3.1 categorically mandating total forfeiture, the Board concluded
the statute permits a total forfeiture for a single incident of wrongdoing.
This appeal ensued. The briefing on appeal was delayed for several years
due to various reasons, including a substitution of appellant's counsel. In
essence, appellant contends the Board's imposition of total forfeiture was
excessive, arbitrary, and capricious.
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II.
The principles of law and appellate review we must apply are clear.
Pursuant to N.J.S.A. 43:1-3(a) "[t]he receipt of a public pension or retirement
benefit is . . . expressly conditioned upon the rendering of honorable service by
a public officer or employee." N.J.S.A. 43:1-3(b) authorizes the Board to forfeit
all or part of a pension benefit where "misconduct occurring during the
member’s public service . . . renders the member's service or part thereof
dishonorable."
In Uricoli, 91 N.J. at 77-78, the Supreme Court developed an eleven-point
balancing test to determine the extent to which a public employee 's pension
should be forfeited when the employee engages in dishonorable service . The
Uricoli test was later codified in N.J.S.A. 43:1-3(c), as follows:
In evaluating a member's misconduct to determine
whether it constitutes a breach of the condition that
public service be honorable and whether forfeiture or
partial forfeiture of earned service credit or earned
pension or retirement benefits is appropriate, the board
of trustees shall consider and balance the following
factors in view of the goals to be achieved under the
pension laws:
(1) the member's length of service;
(2) the basis for retirement;
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(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.
Additionally, certain crimes automatically result in total forfeiture under
N.J.S.A 43:1-3.1, none of which pertain here. Significantly, however, N.J.S.A.
43:1-3.1(e) makes clear that the list of "per se" total forfeiture offenses does not
preclude total forfeiture in other instances of serious misconduct.
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We evaluate the Board's application of the Uricoli factors through a
deferential lens of appellate review. An administrative agency's determination
generally "will be sustained unless there is a clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the record." Saccone
v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (quoting
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
Although we review de novo an agency's interpretation of law, Russo, 206
N.J. at 27, "[w]e must give great deference to an agency's interpretation and
implementation of its rules enforcing the statutes for which it is responsible. "
Piatt v. Police & Firemen's Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015)
(quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13 (2005)). We "must
be mindful of, and deferential to, the agency's 'expertise and superior knowledge
of a particular field.'" Circus Liquors, Inc. v. Governing Body of Middletown
Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr.,
127 N.J. 500, 513 (1992)). "Such deference has been specifically extended to
state agencies that administer pension statutes." Piatt, 443 N.J. Super. at 99.
In light of the deference owed to such determinations, when reviewing
administrative sanctions, "the test . . . is 'whether such punishment is so
disproportionate to the offense, in light of all the circumstances, as to be
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shocking to one's sense of fairness.'" In re Herrmann, 192 N.J. 19, 28-29 (2007)
(citing In re Polk, 90 N.J. 550, 578 (1982)).
Guided by these principles, we sustain the Board's imposition of total
forfeiture based on the facts and context of this matter. In particular, we echo
the Board's emphasis on Uricoli factors seven, eight, and nine.
As to factor seven (the nature of the misconduct), the Board reasonably
found that factor weighs heavily against appellant because "providing a cell
phone to an inmate [is] an extreme violation of an SCO's duty to control the
movements of inmates, to prevent inmates' illicit and unmonitored telephone
communication, and to protect corrections officers, other inmates and the
public." The Board reasonably concluded the ALJ incorrectly weighed this
factor in declaring the conduct did not happen to result in any harm. To the
contrary, the misconduct was of a serious and harmful nature because the
contraband cell phone could have been used in an escape attempt, to attack or
threaten a corrections officer, or to commit other misdeeds.
As for factor eight (the relationship of the misconduct to the member's
public duties), the Board fairly concluded that factor is entitled to significant
weight here because appellant's dishonorable behavior took place while she was
still a member in service. Although she was not working on the ADTC premises
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at the time the cell phone was provided to the inmate, the evidence supports an
inference that she used her long-standing employment relationship and personal
connections at the prison to advance the illicit goals of the conspiracy.
We also defer to the Board's reliance upon factor nine (the degree of moral
turpitude). The Board reasonably highlighted appellant's disregard for the
danger in which she placed others by conspiring to provide Rodriguez with the
cell phone. In addition, the Board justifiably noted that appellant has shown no
remorse nor admitted her misconduct, despite it being plainly substantiated by
the phone records and other evidence the State proffered at the criminal trial.
Moreover, the trial revealed evidence that appellant shared in a monetary
payment in exchange for her role in the conspiracy.
Lastly, the Board expressed ample grounds to depart from the ALJ's
recommendation of a lesser sanction of partial forfeiture. The calibration of a
disciplinary sanction is within the wide discretion of the agency, which has the
perspective of hearing many cases within its administrative docket with varying
degrees of severity. See In re Herrmann, 192 N.J. at 37-38. The sanction chosen
here, while financially harsh, does not shock the judicial conscience.
To the extent we have not addressed them explicitly, the remaining
arguments presented by appellant lack sufficient merit to warrant discussion. R.
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2:11-3(e)(1)(D) and (E).
Affirmed.
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