REGINA TASCA VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4028-15T1

REGINA TASCA,

Petitioner-Appellant, APPROVED FOR PUBLICATION

v. January 28, 2019

APPELLATE DIVISION

BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

______________________________

Argued November 26, 2018 – Decided January 28, 2019

Before Judges Sabatino, Sumners and Mitterhoff.

On appeal from the Board of Trustees of the Police

and Firemen's Retirement System, PFRS No. 3-91517.

Catherine M. Elston argued the cause for appellant

(C. Elston & Associates, LLC, attorneys; Catherine M.

Elston, of counsel and on the briefs).

Danielle P. Schimmel, Deputy Attorney General,

argued the cause for respondent (Gurbir S. Grewal,

Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Jeff S.

Ignatowitz, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

SUMNERS, J.A.D.

Petitioner Regina Tasca appeals the final agency decision of the Board

of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying

her twenty-year service (early) retirement pension benefits under N.J.S.A.

43:16A-5(3), because she was not a PFRS member at the time of the statute's

January 18, 2000 effective date. Tasca claimed that her transfer of six years of

service credit, which she earned prior to her PFRS enrollment in February

2001, to her PFRS account resulted in service credit that exceeded the twenty-

year threshold needed for early retirement. Alternatively, she argues that, even

if she was not a PFRS member on the statute's effective date, she was entitled

to early retirement pension benefits through the doctrine of equitable estoppel

because she retired based on representations by the PFRS staff that her

purchased service credit qualified her for the benefits. Tasca also claims that

her early retirement was part of her settlement with her former employer in a

Law Division action, and because public policy favors settlement of litigation,

she should receive the early retirement pension benefits that she and her

former employer believed in good faith she was eligible to receive.

We disagree with appellant, and affirm because the Board properly

interpreted N.J.S.A. 43:16A-5(3) in determining that since she was not a PFRS

member at the critical time of the statute's effective date, she was ineligible for

early retirement despite her transferred service credit. We also conclude that

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equitable estoppel does not afford Tasca relief against a governmental body,

such as the Board, and there was no misrepresentation by the PFRS staff that

she was eligible for retirement under N.J.S.A. 43:16A-5(3). We further

conclude that public policy favoring settlements against parties who have

entered into them serves no basis for granting her early retirement benefits in

this matter.

I

Tasca was employed as a special police officer with the Borough of

Fairview from January 1, 1995, until she resigned on January 24, 2001.

During that period, she was enrolled in the Public Employees Retirement

System (PERS). Upon joining the Bogota Police Department as a patrol

officer on February 1, 2001, she transferred her service credit from PERS to

PFRS, a different pension program. She thus received a certification of payroll

deductions from PFRS, listing a January 1, 1995 "date of enrollment,"

encompassing eighty-one months of prior service.

Starting in May 2011, a little over ten years after joining the Bogota

police force, Tasca became embroiled in a series of disciplinary actions. This

eventually led to her termination in September 2012, which was effective

October 18, 2012. Approximately five months before her termination, she

filed a federal lawsuit in April 2012, against Bogota and members of its police

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department, alleging violations of her rights under the Law Against

Discrimination, N.J.S.A. 10:5-1 to -42, the Conscientious Employee Protection

Act, N.J.S.A. 34:19-1 to -14, and the First Amendment. After her termination,

she amended the complaint to add Bogota's mayor and some of its council

members as defendants.

Adding to the parties' litigation, Bogota filed a complaint in the Law

Division in December 2012, seeking a refund of the salary Tasca received

while she was under suspension. Tasca, in turn, dismissed her federal action

and incorporated the claims asserted therein as counterclaims 1 in the Law

Division matter.2

After the completion of discovery, Tasca was granted partial summary

judgment in May 2015, invalidating both her suspension from May 18, 2011,

to May 28, 2015, and her termination in October 2012, on the basis that the

disciplinary actions "were the product of multiple conflict[s] of interest[]."

1

In particular, Tasca alleged inappropriate overtime pay denials; harassment

by fellow officers; failure of fellow officers to assist and provide backup;

threatened perjury; vandalism; threatened retaliation; failure to promote; and

unwarranted requests for psychiatric examinations.

2

Bogota's disciplinary charges and Tasca's counterclaims are detailed in our

unpublished decision in Borough of Bogota v. Tasca, No. A-0438-14 (App.

Div. Apr. 27, 2015), where another panel of this court affirmed the trial court's

order that a trial de novo of the charges against Tasca should be tried with the

jury trial on her counterclaims.

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Tasca was awarded back pay and immediate reinstatement to employment,

although not on active duty.

In November 2015, the entire litigation was settled. All claims and

pending disciplinary actions were dismissed, with Tasca receiving $2.25

million from Bogota. 3 Pertinent to this matter, it was agreed by the parties to

the settlement that Tasca "shall remain a police officer and employee of

Bogota on its payroll, and shall maintain all seniority and benefits, until the

effective date of her retirement," in good standing, to take effect on December

31, 2015. In furtherance of her retirement, Bogota was required to

take whatever steps are necessary and/or required to

effectuate Officer Tasca's PFRS pension with all

reasonable diligence, including but not limited to

supporting Officer Tasca's application for a pension

on a service retirement, submitting any and all

information or documents required by PFRS, and

fulfilling any other requirements of or requests from

PFRS.

Before agreeing to the settlement, Tasca confirmed online that she had at

least twenty years' service time in PFRS, which led her to believe she was

eligible for early retirement pension benefits. She also claimed that she met

3

The settlement payment was itemized as follows: $250,000 to Tasca;

$850,000 to fund an annuity for Tasca; $935,000 to Tasca's attorneys;

$200,000 to Sedgwick CMS; and $15,000 to a physician expert.

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with a PFRS counselor, who advised she was eligible for early retirement

pension benefits and could file an application online.

A problem, however, arose prior to finalizing the settlement. When she

was unable to apply for early retirement pension benefits online, Tasca

contacted PFRS on December 14, 2015. She claimed that a PFRS counselor

indicated she should be able to apply for benefits because she had the

necessary twenty years' service in PFRS. However, after checking with a

supervisor, the counselor advised her – which is confirmed in a PFRS contact

log – that she was ineligible for early retirement pension benefits because she

was not a PFRS member on January 18, 2000. The service time added to her

account from her Fairview employment was transferred in 2001, and would not

qualify her for early retirement. She was further advised that she could not

receive pension benefits until she reached fifty-five years of age.4 See

N.J.S.A. 43:16A-5(1). Tasca then refused to sign the settlement agreement.

In response to Tasca's desire to back out of the settlement, the trial court

granted Bogota's request for a hearing to determine if the settlement agreement

was enforceable. Following argument, the court issued an order on December

23, 2015, finding the parties reached a binding agreement, thereby rejecting

Tasca's claim that the settlement was void because of the parties' "mutual

4

Tasca, born in September 1966, was forty-nine years old at the time.

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mistake" that she was eligible for early retirement pension benefits. Six days

later, Tasca signed the agreement as directed by the court. She did not appeal,

or seek a stay of, the court's ruling enforcing the settlement agreement.

Two weeks after being advised she was not eligible for early retirement

pension benefits, Tasca, together with Bogota, sought to reverse the PFRS

determination. They jointly submitted a letter brief, supported by

certifications from Tasca and her counsel, to the Division of Pensions and

Benefits (Division) claiming that she was entitled to early retirement pension

benefits. They argued that because the effective date of her PFRS enrollment

was January 1, 1995, based on the time she carried over from PERS, sh e had

the requisite twenty years' service as a PFRS member to be eligible for early

retirement pension benefits. They also contended that equitable estoppel

principles warranted approval of Tasca's application for early retirement based

on representations made over the course of fifteen years prior to the settlement

by PFRS counselors and in her PFRS benefits statements that she has been

enrolled in PFRS since January 1, 1995. Lastly, they argued that denying her

early retirement pension benefits undermines the public policy favoring

settlements because the settlement agreement was based on their good faith

belief that she was eligible for early retirement pension benefits due to the

aforesaid enrollment date and prior representations.

A-4028-15T1

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The Division concluded Tasca was not eligible for early retirement

pension benefits because she did not meet the eligibility requirements under

N.J.S.A. 43:16A-5(3). Even though on February 1, 2001, she transferred

service time from PERS that gave her a PFRS enrollment date of January 1,

1995, she was not a "member" of PFRS on January 18, 2000, as is expressly

required by the statute. The Division added that there was no record of it, or a

staff member, notifying her that she was eligible for early retirement benefits.

Tasca appealed the decision to the Board.

The Board affirmed the Division's denial of early retirement pension

benefits to Tasca for the same reasons. In rejecting Tasca's equitable estoppel

argument, the Board noted:

[Tasca] argues that the enrollment date on her annual

statements led her to believe that she was a member

on the effective date of [P.L.] 1999, c. 428. Further,

she claims to have received multiple assurances during

contacts with Division staff that she did qualify for

Service retirement benefits. However, the Board notes

that Division contact records do not indicate a

discussion with the member about eligibility for

Service retirement benefits until December 14, 2015,

two weeks before she signed the settlement agreement.

Realizing she did not qualify for Service retirement

benefits at that time, the Board notes that . . . Tasca

raised the issue with the [c]ourt seeking to amend her

agreement with Bogota. The record shows the [c]ourt

enforced the agreement as negotiated, noting that . . .

Tasca was responsible for knowing her benefits while

in negotiations. As a further note, there is also no

record that . . . Tasca inquired concerning her

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enrollment date. On this basis, the Board finds there

is no basis to grant her request for Service retirement

benefits based on issues of equitable estoppel.

The Board further concluded that it was not bound by Tasca and Bogota's

settlement agreement because it was not a party to the agreement and that it

could not grant benefits that are contrary to law. This appeal ensued.

II

Tasca raises the same arguments before us that the Board rejected. She

first contends that the Board misinterpreted N.J.S.A. 43:16A-5(3) to deny her

early retirement pension benefits through her PFRS membership. In particular,

she maintains that she satisfied the twenty-year service time element to be

eligible for the benefits, pointing to her PFRS personal benefit statements,

which provide that her PFRS enrollment date is January 1, 1995, the

controlling date for calculating whether she has sufficient time to be eligible.

It is long established that we "afford substantial deference to an agency's

interpretation of a statute that the agency is charged with enforcing."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196

(2007). "Such deference has been specifically extended to state agencies that

administer pension statutes" because "'a state agency brings experience and

specialized knowledge to its task of administering and regulating a legislative

enactment within its field of expertise.'" Piatt v. Police & Firemen's Ret. Sys.,

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443 N.J. Super. 80, 99 (App. Div. 2015) (quoting In re Election Law Enf't

Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). Nevertheless,

"we are 'in no way bound by the agency's interpretation of a statute or its

determination of a strictly legal issue.'" Utley v. Bd. of Review, Dep't of

Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of

Sec., 64 N.J. 85, 93 (1973)). Thus, our review of a question of law is de novo.

Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 419 (2018).

The primary purpose of "statutory interpretation is to determine and

'effectuate the Legislature's intent.'" State v. Rivastineo, 447 N.J. Super. 526,

529 (App. Div. 2016) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)).

We initially consider "the plain 'language of the statute, giving the terms used

therein their ordinary and accepted meaning.'" Ibid. "We will not presume

that the Legislature intended a result different from what is indicated by the

plain language or add a qualification to a statute that the Legislature chose to

omit." Tumpson v. Farina, 218 N.J. 450, 467-68 (2014) (citing DiProspero v.

Penn, 183 N.J. 477, 493 (2005)). When we do not conclude that the "plain

reading of the statutory language is ambiguous, . . . or leads to an absurd

result," we refrain from looking at "extrinsic evidence, such as legislative

history, committee reports, and contemporaneous construction in search of the

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Legislature's intent." Tumpson, 218 N.J. at 468 (citing DiProspero, 183 N.J. at

492-93).

A.

Tasca sought PFRS early retirement pension benefits under N.J.S.A.

43:16A-5(3), which, in relevant part, provides:

Any member of the retirement system as of the

effective date of P.L. 1999, c. 428 who has 20 or more

years of creditable service at the time of retirement

shall be entitled to receive a retirement allowance

equal to 50% of the member's final compensation . . . .

[(emphasis added).]

The effective date of the statute is January 18, 2000. L. 1999, c. 428, § 2.

Plainly and clearly stated, to be eligible for early retirement benefits under the

statute, a PFRS member must: (1) have been a "member of the retirement

system" as of January 18, 2000; and (2) have at least twenty years of

"creditable service" upon retirement.

Tasca satisfied the service time through her transfer of time from her

PERS membership while employed by Fairview. "Creditable service" is not

limited to employment offering membership in PFRS but includes any service

"as a policeman or fireman" paid for by "the State of New Jersey, the county,

municipality or political subdivision." N.J.S.A. 43:16A-1(6) to (8); N.J.S.A.

43:16A-4. Tasca transferred funds from the PERS to the PFRS and "receive[d]

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full credit toward benefits under PFRS for the transferred PERS service

credit." N.J.S.A. 43:16A-3.10(b); N.J.S.A. 43:16A-3.14. Her personal benefit

statement reflected twenty-one years and five months pension service credit as

of September 30, 2015.

On the other hand, Tasca falls short of satisfying the requirement of

being a PFRS member on January 18, 2000. A "member" is defined as "any

policeman or fireman included in the membership of the retirement system."

N.J.S.A. 43:16A-1(3). "Retirement system" refers only to the "Police and

Firemen's Retirement System of New Jersey." N.J.S.A. 43:16A-1(1). Tasca

did not become a PFRS member until February 1, 2001, when she joined the

Bogota police force. This occurred over a year after the statute's January 18,

2000 effective date.

Tasca mistakenly conflates her PFRS enrollment date of January 1,

1995, with the date she became a PFRS member on February 1, 2001. Her

enrollment date is backdated before the actual date she joined PFRS due to the

service time transferred from PERS to PFRS allowed by law. N.J.A.C. 17:2-

7.1(b)(7) ("The member's original enrollment date established in the former

system shall be transferred into the new system."). However, the early

retirement pension benefits statute, N.J.S.A. 43:16A-5(3), specifically requires

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that an individual must be a "member" of PFRS on the pivotal date of January

18, 2000, without reference to the individual's "enrollment date."

From our vantage point, it is obvious that the Legislature chose not to

use the term "enrollment date" as the trigger for determining eligibility for

early retirement pension benefits. N.J.S.A. 43:16A-5(3) states that an

individual must be a member of PFRS on January 18, 2000, to qualify for early

retirement pension benefits. We have no doubt that the Legislature was

familiar with the ability of a person to purchase and transfer time from another

pension system to his or her PFRS membership, as noted above. The

Legislature unambiguously limited the class of PFRS members who are

eligible to take advantage of early retirement pension benefits, perhaps for

fiscal or budgetary reasons. Thus, we discern no reason to read the statute

contrary to its plain and clear meaning that a person had to be a PFRS member

on January 18, 2000, to be eligible for early retirement service pension

benefits.

Accordingly, we conclude the Board's interpretation of the statute was

not arbitrary, capricious, or unreasonable, and did not violate legislative

policies. See Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27 (2011). Tasca therefore cannot take advantage of the early retirement

pension benefits afforded by N.J.S.A. 43:16A-5(3).

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B.

In the alternative, Tasca raises two arguments. One, the doctrine of

equitable estoppel should apply to require that PFRS approve her early

retirement pension benefits because she retired from Bogota due to

misrepresentations by PFRS as to her eligibility for the benefits. Two, public

policy favors settlement of litigation, and, thus, she should receive the early

retirement pension benefits that she and Bogota believed in good faith she was

eligible to receive. We address the arguments in the order raised.

In support of her equitable estoppel argument, Tasca maintains that the

annual PFRS benefits statements she received over a fourteen-year period

stated her enrollment date was January 1, 1995. The 2015 statement reflects

she has twenty-one years and five months of "Total Pension Service Credit."

She also points to an unscheduled walk-in interview with a PFRS counselor,

who advised she would have twenty years of service as of May 1, 2014. In

September 2015, a PFRS counselor advised that her account would be credited

with an additional thirty-two months, presumably in connection with her

lawsuit against Bogota.5 She asserts she would have remained on the Bogota

5

Tasca, as well as her counsel, had telephone contacts with PFRS concerning

the impact of her settlement on her pension calculations based upon her back

pay award. Those communications have no bearing on her legal eligibility for

early retirement pension benefits.

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police force had she been aware she was not eligible for the early retirement

pension benefits since she would have been eligible for a twenty-five year

pension after an additional three years of service.

In applying equitable estoppel, our Supreme Court in Knorr v. Smeal,

178 N.J. 169 (2003), explained the doctrine is:

"founded in the fundamental duty of fair dealing

imposed by law." [It] is designed to prevent injustice

by not permitting a party to repudiate a course of

action on which another party has relied to his [or her]

detriment. . . . Estoppel, unlike waiver, requires the

reliance of one party on another. In short, to establish

equitable estoppel, plaintiffs must show that defendant

engaged in conduct, either intentionally or under

circumstances that induced reliance, and that plaintiffs

acted or changed their position to their detriment.

[Id. at 178 (citations omitted).]

"'The essential principle of the policy of estoppel . . . is that one may, by

voluntary conduct, be precluded from taking a course of action that would

work injustice and wrong to one who with good reason and in good faith has

relied upon such conduct.'" Middletown Twp. Policeman's Benevolent Ass'n

Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting

Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-

04 (1955)). There need not be evidence of fraudulent intent for equitable

estoppel to apply. Hendry v. Hendry, 339 N.J. Super. 326, 336 (App. Div.

2001). Of added significance here, equitable estoppel is "rarely invoked

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against a governmental entity, . . . . Nonetheless, equitable considerations are

relevant to assessing governmental conduct, and may be invoked to prevent

manifest injustice." In re Johnson, 215 N.J. 366, 378-79 (2013) (quoting

O'Malley v. Dep't of Energy, 109 N.J. 309, 316-17 (1987) (citations omitted)).

Applying these principles, we discern no reason to upset the Board's

decision to deny Tasca's early retirement pension benefits based upon her

assertion of equitable estoppel. Although the Board did not specifically

analyze the doctrine, it found there was no factual basis to support Tasca's

assertion that she was misled into believing she was eligible for an early

retirement pension. We are mindful that, while Tasca's contacts with PFRS are

contested facts and the Board decided her claim without a fact-finding hearing,

even accepting her assertions as true, the record fails to reflect she was lead to

believe by PFRS that she was eligible for the sought after pension benefits .

Even accepting her claim that a PFRS counselor told her she was eligi ble for

the benefits cannot bind the Board. Tasca can point to no award or official

correspondence by the Division or the Board stating that she was eligible for

an early retirement pension.

Furthermore, considering the disfavor of applying equitable estoppel

against a governmental agency, Tasca has not established that denying her

pension constitutes a manifest injustice. She and Bogota reached a settlement

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agreement fully aware that it was up to the Division, or ultimately the Board,

to determine if she was eligible for early retirement pension benefits. For

reasons that are not evident in the record, the agreement was not subject to her

obtaining the benefits. Moreover, as noted, N.J.S.A. 43:16A-5(3)

unambiguously states a person must be a member of PFRS on January 18,

2000, to be eligible for the benefits – which she clearly was not.

Tasca likens her situation to pension disputes that occurred in several

cases, none of which support her position that equitable estoppel should be

applied here. In Skulski v. Nolan, 68 N.J. 179, 189-190 (1975), the Court

reversed the Appellate Division and remanded to the trial court so that

pensioners, who were previously granted disability pension benefits that were

discontinued by a court-appointed receiver for a county Pension Commission,

could present proofs to warrant reinstatement of their pensions. The Court

ordered that the pensioners be allowed to show their subjective good faith

belief in entitlement to benefits, and that their reliance on an initial pensi on

award foreclosed alternate pension benefits. Id. at 199-200.

In Galvano v. Board of Trustees of the Public Employees' Retirement

System, 225 N.J. Super. 388, 390-92 (App. Div. 1988), after the appellant

received a letter from the Division approving his veteran's retirement benefits

and retired from his job, the Division advised him that he was ineligible for the

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benefits because he did not meet the requisite age requirement. He

consequently was precluded from seeking alternative public employment to

allow him to work until reaching the required age. Id. at 396. We remanded

for further factual findings to determine whether equitable principles 6 would

mandate reversal without relying per se on a theory of equitable estoppel. Id.

at 398.

In Sellers v. Board of Trustees of the Police & Firemen's Retirement

System, 399 N.J. Super. 51 (App. Div. 2008), the Board initially approved the

appellant's enrollment in PFRS as a firefighter. Id. at 54. However, the Board

subsequently reversed his enrollment due to his age even though both he and

the Township held the mistaken belief that his age would be adjusted based on

his service in the military and as a police officer. Id. at 52-53. We reversed

and remanded so that the Board could determine "whether the facts warrant

application of equitable principles." Id. at 63. We ruled, "[p]rinciples of

equitable estoppel do not neatly fit the facts of this case" when the appellant

seeks to bind the Board, a State entity, for action taken by a municipality. Id.

at 58-59.

6

The appellant was permitted to present proofs that he would have been able

to continue working on light duty had he been timely advised of the age

requirement for his desired pension. Galvano, 225 N.J. Super. at 398.

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Unlike the appellants in those cases, Tasca was not granted pension

benefits or led to believe by the approving authority that she was entitled to

early retirement pension benefits. Rather, here, it was clear that she was not

entitled to such benefits because she was not a PFRS member when the

authorizing statute took effect. In addition, there is no proof that she is

precluded from pension benefits in the future, as she is entitled to benefits

upon turning fifty-five years old.

Tasca's remaining argument is that she is entitled to early retirement

benefits because it was part of her litigation settlement with Bogota based on

good faith reliance on PFRS's representation, and public policy favors

settlement. This argument does not merit much attention.

The trial court ordered that the settlement was binding to the parties

despite Tasca being told she was not eligible for early retirement pension

benefits. Because that order was not appealed and remains in effect, the public

policy favoring settlements has been maintained. See Brundage v. Estate of

Carambio, 195 N.J. 575, 601 (2008) (quoting Jannarone v. W.T. Co., 65 N.J.

Super. 472, 476 (App. Div. 1961)) ("Fundamental to our jurisprudence relating

to settlements is the principle that '[t]he settlement of litigation ranks high in

our public policy.'" (alteration in original)). Moreover, as the Board correctly

stated, it was not a party to the trial court litigation and, consequently, it did

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not agree that Tasca was entitled to early retirement pension benefits under

N.J.S.A. 43:16A-5(3). Hence, our public policy of enforcing settlements

against parties who have entered into them is of no import in this matter.

Affirmed.

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