MARK MURPHY VS. BOARD OF TRUSTEES (BOARD OF TRUSTEES, STATE POLICE RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-1830-18T1

MARK MURPHY,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, STATE

POLICE RETIREMENT SYSTEM,

Respondent-Respondent.

Argued January 22, 2020 – Decided February 10, 2020

Before Judges Accurso, Gilson and Rose.

On appeal from the Board of Trustees of the State

Police Retirement System, SPRS No. 8-3296.

Lauren Patricia Sandy argued the cause for appellant.

Amy Chung, Deputy Attorney General, argued the

cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa H. Raksa, Assistant

Attorney General, of counsel; Tatiana Kitaigorovski,

Deputy Attorney General, on the brief).

PER CURIAM

Mark Murphy appeals a final agency decision of the Board of Trustees of

the State Police Retirement System (SPRS), denying his request for deferred

retirement benefits under N.J.S.A. 53:5A-28. We affirm.

Murphy established membership in the SPRS in February 1986, when he

enlisted as a State Trooper. In June 1998, while off duty and under the influence

of alcohol, Murphy drove his troop car and struck another vehicle broadside,

killing the driver and injuring the passenger. Because he was off duty at the

time of the incident, Murphy was not authorized to use his troop car. He was

suspended without pay during the resulting investigation. Six months later, the

State charged Murphy with first-degree aggravated manslaughter, second-

degree vehicular homicide, second-degree aggravated assault by auto, and

fourth-degree aggravated assault by auto. A jury thereafter convicted Murphy

of second-degree vehicular homicide, and fourth-degree aggravated assault by

auto.

On March 9, 2001, Murphy was sentenced to an aggregate seven-year

prison term, with three years of parole ineligibility pursuant to N.J.S.A. 2C:11 -

5(b)(1). The sentence was also subject to the eighty-five percent parole

disqualifier prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The

trial court assessed the mandatory fines and penalties, including a five-year

A-1830-18T1

2

suspension of Murphy's driver's license. Relevant here, the court ordered

Murphy to forfeit his law enforcement position pursuant to N .J.S.A. 2C:51-

2(a)(1) (requiring forfeiture of "such office, position or employment" when the

member has been convicted of "an offense involving dishonesty or of a crime of

the third degree or above . . . .").1 By that time, Murphy had been a member of

the SPRS for twelve years and four months.

In August 2017, Murphy applied for deferred retirement benefits,

requesting a March 1, 2018 effective date. The Board denied Murphy's request,

finding Murphy had been removed from employment for cause. Noting the

pertinent facts were undisputed, the Board also denied Murphy's ensuing request

for a hearing by the Office of Administrative Law. The Board then issued the

final agency decision under review.

On appeal, Murphy raises the following points for our consideration:

POINT I

THE BOARD'S DECISION SHOULD BE REVERSED

BECAUSE IT DID NOT FOLLOW THE LAW.

1

Murphy appealed, we affirmed, State v. Murphy, No. A-4121-00 (App. Div.

July 15, 2002), and the Supreme Court denied certification, State v. Murphy,

175 N.J. 80 (2002). We also affirmed the Law Division's denial of post -

conviction relief, State v. Murphy, No. A-1885-04 (App. Div. Oct. 2, 2006),

certif. denied, 189 N.J. 649 (2007).

A-1830-18T1

3

POINT II

THE DECISION OF THE BOARD SHOULD BE

REVERSED BECAUSE IT IS ARBITRARY,

CAPRICIOUS, AND UNREASONABLE.

POINT III

THE BOARD'S DECISION IS NOT SUPPORTED BY

THE SUBSTANTIAL EVIDENCE IN THE RECORD.

(Not Raised Below)

In point I of his reply brief, Murphy expounded upon his first point:

THE BOARD'S DECISION DID NOT FOLLOW THE

LAW BECAUSE MURPHY'S MISCONDUCT WAS

NOT RELATED TO HIS EMPLOYMENT.

It is well established that "[o]ur review of administrative agency action is

limited." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27

(2011). Reviewing courts presume the validity of the "administrative agency's

exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J.

163, 171 (2014). For those reasons, we will not overturn an agency decision

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." J.B. v. N.J. State Parole Bd., 229 N.J.

21, 43 (2017). Nor will we overturn an agency decision merely because we

would have come to a different conclusion. In re Stallworth, 208 N.J. 182, 194

(2011). Although we "afford substantial deference to an agency's interpretation

A-1830-18T1

4

of a statute that the agency is charged with enforcing[,]" we are not bound by

the "agency's interpretation of a statute or its determination of a strictly legal

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

196 (2007).

To collect deferred retirement benefits, a public employee must provide

"honorable service." N.J.S.A. 43:1-3(a); see also Corvelli v. Bd. of Trs., Police

and Firemen's Ret. Sys., 130 N.J. 539, 550 (1992) ("All public pension statutes

. . . carry an implicit condition precedent of honorable service . . . and forfeiture

can be ordered for failure of that condition."). Pertinent to this appeal, N.J.S.A.

53:5A-28 addresses deferred retirement benefits:

Should a member, after having established [ten] years

of creditable service . . . be separated voluntarily or

involuntarily from the service, before reaching age

[fifty-five], and not by removal for cause on charges of

misconduct or delinquency, such person may elect to

receive the payments provided . . . or a deferred

retirement allowance . . . .

[(Emphasis added).]

The plain language of the statute leaves no room for discretion by the

Board; any member removed from service for "charges of misconduct or

delinquency" is ineligible to receive deferred retirement benefits from SPRS as

a matter of law. Accordingly, this provision of N.J.S.A. 53:5A-28 is

A-1830-18T1

5

automatically invoked whenever a public employee has been removed for cause

on charges of misconduct that relate to the employee's official duty. Borrello v.

Bd. of Trs., 313 N.J. Super. 75, 78 (App. Div. 1998).

We have considered the nexus between an officer's conviction of a crime

and the officer's employment. See In re Hess, 422 N.J. Super. 27 (App. Div.

2011). In Hess, we considered the Board's ability to deny deferred retirement

benefits because of official misconduct. The Public Employees' Retirement

System Board denied Hess deferred retirement benefits because she was

involuntarily terminated from public employment based on her convictions for

third-degree assault by auto. Id. at 30. We deemed the Board's denial as

incorrect because the petitioner's "conviction was unrelated to her official

duties." Ibid.; cf. Borrello, 313 N.J. Super. at 78 (finding that removal from

employment after conviction of a third-degree crime was proper because it was

misconduct related to employment). Unlike Murphy in the present matter,

however, the petitioner in Hess was not a law enforcement officer and was

driving her personal vehicle at the time of her drunk-driving accident. See Hess,

422 N.J. Super. at 30.

Here, the Board denied Murphy deferred retirement benefits because he

was removed from his employment for cause, following his conviction for a

A-1830-18T1

6

crime pursuant to N.J.S.A. 2C:41-2(a)(1). According to the Board, "Murphy's

criminal misconduct touched upon his official duties as a Detective/Sergeant

because at the time of the incident he was in his troop car which he was not

authorized to be utilizing and was under the influence of alcohol." Unlike the

petitioner in Hess, Murphy was convicted of conduct that related to his position

as a State Trooper. We therefore discern no legal error in the Board's decision.

Richardson, 192 N.J. at 196.

Turning to point II, Murphy contends the Board's decision was arbitrary,

capricious, and unreasonable, because it failed to consider the factors

enumerated by the Supreme Court in Uricoli v. Board of Trustees, 91 N.J. 62,

77-78 (1982), and codified in N.J.S.A. 43:1-3(c). Murphy's argument is

unavailing.

As we have long recognized, Uricoli "appl[ies] only to those claims for

benefits where the specific pension statute is silent respecting the effect of a

conviction for a crime relating to the applicant's public office." Borrello, 313

N.J. Super. at 77; see also Hess, 422 N.J. Super. at 33. Where the statute is not

silent and the misconduct involves public employment, the forfeiture of deferred

pension rights is automatic. Hess, 422 N.J. Super. at 37. In this case, the statute

is not silent, as it expressly limits the right to a deferred pension to members

A-1830-18T1

7

who were not removed from their position "for cause on charges of misconduct

or delinquency." N.J.S.A. 53:5A-28(a). Accordingly, we conclude the Board's

determination was not arbitrary, capricious or unreasonable. J.B., 229 N.J. at

43.

Lastly, we find insufficient merit in the newly-minted argument defendant

raises in point III – that his misconduct did not touch upon his law enforcement

duties because he was off duty and not authorized to use his troop car while not

on duty – to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Based on our review of the record, we conclude the Board's decision "is

supported by sufficient credible evidence on the record as a whole." R. 2:11-

3(e)(1)(D).

Affirmed.

A-1830-18T1

8