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NOT FOR PUBLICATION WITHOUT THE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 t he
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-5501-18T1
IN THE MATTER OF THE
BOARD OF TRUSTEES OF THE
POLICE AND FIREMEN'S
RETIREMENT SYSTEM OF NEW
JERSEY DENIAL OF DOLORES
ORTEGA'S RIGHT TO RECEIVE
SURVIVOR BENEFITS AS A
DOMESTIC PARTNER OF
DECEDENT GORDON KONCSOL.
______________________________
Submitted October 20, 2020 – Decided November 5, 2020
Before Judges Yannotti, Haas and Mawla.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PRFS No. 3-10-018214.
Mintz & Geftic, LLC, attorneys for appellant Dolores
Ortega (Bryan H. Mintz, on the briefs).
Robert S. Garrison, Jr., Director of Legal Affairs,
attorney for respondent Police and Firemen's
Retirement System of New Jersey (Robert S. Garrison,
Jr., on the brief).
PER CURIAM
Appellant Dolores Ortega appeals from a decision of the Board of Trustees
(Board) of the Police and Firemen's Retirement System (PFRS) denying her
application to receive survivor benefits. The Board held that appellant did not
qualify for these benefits because she was not the member's widow under
N.J.S.A. 43:16A-1(24)(b). We affirm.
By way of background, "[u]pon the death after retirement of any member
of the [PFRS] there shall be paid to the member's widow or widower a pension
of 50% of final compensation for the use of herself or himself, to continue during
her or his widowhood . . . ." N.J.S.A. 43:16A-12.1(a). If, as in this case, the
member is not employed by the State of New Jersey, the term "'widow' . . . means
the woman to whom a member or retirant was married on the date of his death
and who has not remarried." N.J.S.A. 43:16A-1(24)(b).
However, a non-state employer "may adopt a resolution providing that the
term 'widow' as defined in [N.J.S.A. 43:16A-1(24)(b)] shall include domestic
partners as provided in" the Domestic Partnership Act (the Act), N.J.S.A. 26:8A-
1 to -13. Ibid. In enacting the Act in 2004, the Legislature made clear that it
discern[ed] a clear and rational basis for making certain
health and pension benefits available to dependent
domestic partners only in the case of domestic
partnerships in which both persons are of the same sex
and are therefore unable to enter into a marriage with
each other that is recognized by New Jersey law, unlike
A-5501-18T1
2
persons of the opposite sex who are in a domestic
partnership but have the right to enter into a marriage
that is recognized by State law and thereby have access
to these health and pension benefits.
[N.J.S.A. 26:8A-2(e) (emphasis added).]
Thus, a member's domestic partner may only qualify for survivor benefits as his
"widow" if the domestic partner is "of the same sex" as the member. Ibid. See
also N.J.S.A. 26:8A-11 (stating that the provisions of the Act that are applicable
to state-administered pension systems, like the PFRS, "only apply in the case of
two persons who are of the same sex"). 1
The New Jersey Division of Pension and Benefits (Division) thereafter
promulgated a regulation, now recodified as N.J.A.C. 17:1-5.6, to make this
point clear. In this regard, N.J.A.C. 17:1-5.6(b)(1) states that "[t]he domestic
partner of a member or retiree who is of the opposite sex of the member cannot
meet the definition of widow . . . found in . . . N.J.S.A. 43:16A-1, . . . and cannot
receive any statutory survivor benefits through the retirement systems."
(emphasis added).
1
N.J.S.A. 26:8A-11(b) states that the provisions of N.J.S.A. 26:8A-11(a) "shall
not be deemed to be an unlawful discrimination under the" New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1 to -49.
A-5501-18T1
3
With the advent of civil unions in 2007, the Legislature amended the Act
because same-sex couples now had a means other than entering a domestic
partnership to secure the same benefits as couples who were of the opposite sex.
In N.J.S.A. 26:8A-4.1, the Legislature stated that domestic partnerships could
no longer be registered after February 19, 2007, "except that two persons who
are each 62 years of age or older may establish a domestic partnership. . . ." In
October 2013, same-sex marriages were recognized in New Jersey. Garden
State Equality v. Dow, 434 N.J. Super. 163 (Law Div. 2013). In its appellate
brief, the Board has advised us that because both same-sex couples and opposite-
sex couples may now marry, the Division now requires a "widow," regardless
of their gender, to have been married to the member in order to qualify for
survivor benefits.
With this essential background in mind, we turn to the facts of the present
case. PFRS member Gordon Koncsol worked as a firefighter with the City of
Perth Amboy. Koncsol retired from this position in November 1994 and
received a PFRS pension. At that time, Koncsol was married, but he divorced
his former wife in December 1994.
In December 2009, Koncsol submitted a Division "Designation of
Beneficiary" form naming appellant as his primary beneficiary for his pension
A-5501-18T1
4
benefit,2 as well as for his group life insurance benefit. The form stated that
appellant was Koncsol's domestic partner. 3
On December 25, 2009, the Division responded by sending Koncsol a
letter stating that "[t]he beneficiaries acknowledged by this document took effect
on 12/23/2009. This beneficiary designation supersedes all previous
designations." The Division's letter stated that appellant was the primary life
insurance beneficiary and was also the primary last check benefit beneficiary,
meaning that appellant would receive Koncsol's last pension check in the event
of his death.
However, the letter did not list or acknowledge appellant as Koncsol's
pension benefit beneficiary, and it did not state that appellant was entitled to a
monthly survivor benefit. Instead, the letter merely stated that "[t]he pension
benefit is a monthly pension determined by the governing statutes regarding
2
Koncsol listed his children as the contingent beneficiaries for his pension
benefit.
3
There is nothing in the record indicating that Perth Amboy ever adopted a
resolution including same-sex domestic partners in its definition of "widow" as
permitted by N.J.S.A. 43:16A-1(24)(c). However, because Koncsol and
appellant were an opposite-sex couple, appellant would not have qualified for a
survivor benefit as a widow even if Perth Amboy had enacted such a resolution.
A-5501-18T1
5
surviving spouse, civil union partners, domestic partners, minor children,
disabled children and dependent parents." (emphasis added).
On April 30, 2010, Koncsol entered into an opposite-sex domestic
partnership with appellant. Koncsol passed away on September 5, 2018.
Appellant thereafter contacted the Division and asserted that she qualified
for a survivor benefit as Koncsol's widow. The Division denied this request
because appellant was not married to Koncsol on the date of his death as required
by N.J.S.A. 43:16A-1(24)(b).
In response, appellant contacted the Board and asserted that she relied to
her detriment on the Division's December 25, 2009 response to Koncsol's
designation of beneficiary form in support of her claim that she was entitled to
the survivor benefit. Appellant also argued that the Division should exercise its
equitable powers to permit her, as Koncsol's domestic partner, to receive the
benefit. However, based upon the clear language of N.J.A.C. 17:1-5.6(a), the
Board rejected these arguments.
Appellant then asked that the Board transmit the matter to the Office of
Administrative Law for a contested case hearing. Because the underlying facts
of this case are not in dispute, the Board denied appellant's request for a hearing
in a comprehensive decision rendered on July 9, 2019. This appeal followed.
A-5501-18T1
6
On appeal, appellant raises the same contentions she unsuccessfully
pressed before the Board. Appellant again argues that the Board should have
been equitably estopped from denying her request for a survivor benefit, and she
asserts it is unfair that a same-sex domestic partner might be eligible for this
benefit, while she is not because she and Koncsol were an opposite-sex couple.
Appellant also contends that the Board should have "liberally interpreted" the
governing statutes and regulation to make her eligible for a survivor benefit. We
disagree.
Our review of an agency's decision is limited. In re Stallworth, 208 N.J.
182, 194 (2011). "In order to reverse an agency's judgment, [we] must find the
agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not
supported by substantial credible evidence in the record as a whole.'" Ibid.
(second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.
571, 579-80 (1980)). In determining whether agency action is arbitrary,
capricious, or unreasonable, our role is restricted to three inquiries:
(1) whether the agency action violates the enabling act's
express or implied legislative policies; (2) whether
there is substantial evidence in the record to support the
findings upon which the agency based application of
legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred
by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors.
A-5501-18T1
7
[W.T. v. Div. Med. Assistance & Health Servs., 391
N.J. Super. 25, 35-36 (App. Div. 2007) (quoting Pub.
Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101
N.J. 95, 103 (1985)).]
Thus, the burden of showing the agency acted in an arbitrary, capricious,
or unreasonable manner rests on the party opposing the administrative action.
E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 349 (App.
Div. 2010) (citing In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)).
It is not the function of the reviewing court to substitute its independent
judgment on the facts for that of an administrative agency. In re Grossman, 127
N.J. Super. 13, 23 (App. Div. 1974).
We must also "'defer to an agency's technical expertise, its superior
knowledge of its subject matter area, and its fact-finding role,'" and therefore
are "obliged to accept all factual findings that are supported by sufficient
credible evidence." Futterman v. Bd. of Review, Dept. of Labor, 421 N.J. Super.
281, 287 (App. Div. 2011) (quoting Messick v. Bd. of Review, 420 N.J. Super.
321, 325 (App. Div. 2011)). Although we are not bound by an agency's
interpretation of law, we accord a degree of deference when the agency
interprets a statute or a regulation that falls "within its implementing and
enforcing responsibility. . . ." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.
A-5501-18T1
8
Super. 52, 56 (App. Div. 2001). Our authority to intervene is limited to "those
rare circumstances in which an agency action is clearly inconsistent with [the
agency's] statutory mission or with other State policy." Futterman, 421 N.J.
Super. at 287 (alteration in original) (internal quotation marks omitted).
Furthermore, "[i]t is settled that '[a]n administrative agency's
interpretation of statutes and regulations within its implementing and enforcing
responsibility is ordinarily entitled to our deference.'" E.S., 412 N.J. Super. at
355 (second alteration in original) (quoting Wnuck, 337 N.J. Super. at 56).
"Nevertheless, 'we are not bound by the agency's legal opinions.'" A.B. v. Div.
of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)
(quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div.
2001)). "Statutory and regulatory construction is a purely legal issue subject to
our de novo review." Ibid. (citation omitted).
Applying these principles, we discern no basis for disturbing the Board's
determination that appellant was not entitled to a survivor benefit because she
did not qualify as Koncsol's widow at the time of his death under N.J.S.A.
43:16A-1(24)(b). We therefore affirm substantially for the reasons set forth in
the Board's thorough written decision and add the following comments.
A-5501-18T1
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As the Board explained, the Legislature made clear a survivor benefit is
only
available to dependent domestic partners . . . in the case
of domestic partnerships in which both persons are of
the same sex and [were] therefore unable to enter into
a marriage with each other that is recognized by New
Jersey law, unlike persons of the opposite sex who are
in a domestic partnership but have the right to enter into
a marriage that is recognized by State law and thereby
have access to these health and pension benefits.
[N.J.S.A. 26:8A-2(e).]
In accordance with the Legislature's policy choice, the Division promulgated
N.J.A.C. 17:1-5.6(b)(1) to firmly establish that "[t]he domestic partner of a
member or retiree who is of the opposite sex of the member cannot meet the
definition of widow . . . found in N.J.S.A. . . . 43:16A-1, and cannot receive any
statutory survivor benefits through the retirement system." Based upon the clear
language of these statutes and the Division's regulation, appellant plainly did
not qualify for a survivor benefit.
Under these circumstances, appellant's equitable estoppel argument is
unavailing. "Equitable estoppel is 'rarely invoked against a governmental
entity[,]'" Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v.
Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Wood v. Borough of
Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div. 1999)), particularly when
A-5501-18T1
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estoppel would interfere with "essential governmental functions." Vogt v.
Belmar, 14 N.J. 195, 205 (1954). The doctrine of equitable estoppel requires
proof of
a misrepresentation or concealment of material facts
known to the party allegedly estopped and unknown to
the party claiming estoppel, done with the intention or
expectation that it will be acted upon by the other party
and on which the other party does in fact rely in such a
manner as to change his [or her] position for the worse
....
[Carlsen v. Masters, Mates & Pilots Pension Plan Tr.,
80 N.J. 334, 339 (1979).]
The reliance must be "reasonable and justifiable" and the burden of proof is on
the party asserting the estoppel. Foley Mach. Co. v. Amland Contractors, Inc.,
209 N.J. Super. 70, 75-76 (App. Div. 1986).
Appellant cannot meet these requirements. Contrary to appellant's
contentions, the Division's December 25, 2009 letter did not state that she
qualified for a survivor benefit. Instead, it made clear that the pension benefit
would be "determined by the governing statutes regarding surviving spouses
[and] domestic partners. . . ." As discussed above, the applicable statutes and
regulation clearly state that only domestic partners who are of the same sex are
eligible for the survivor benefit. There is nothing in the record to indicate that
A-5501-18T1
11
appellant relied to her detriment on any incorrect information provided to her by
the Division.
Contrary to appellant's contention, the statutory and regulatory scheme
did not discriminate against her on the basis of her gender. Because she and
Koncsol were of opposite sexes, they were free to marry, which would have
enabled her to qualify for the survivor benefit. On the other hand, same-sex
couples could not marry when the Act went into effect and, therefore, the
Legislature wanted to provide a mechanism limited to them in the Act to ensure
that these individuals would have the same right to this benefit as an opposite-
sex couple. Thus, there was "a clear and rational basis" underlying the
Legislature's decision to "mak[e] certain health and pension benefits available
to dependent domestic partners only in the case of domestic partnerships in
which both persons are of the same sex . . . ." N.J.S.A. 26:8A-2(e).
We also reject appellant's argument that the Board acted in an arbitrary
manner by declining to expansively interpret the definition of "widow" to
include her status as a domestic partner. It is well established that a person
deemed eligible for benefits is entitled to a liberal interpretation of the pension
statutes, Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 242 (App. Div. 2010),
because "pension statutes are 'remedial in character' and 'should be liberally
A-5501-18T1
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construed and administered in favor of the persons intended to be benefitted
thereby.'" Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg. High Sch.
Dist., 199 N.J. 14, 34 (2009) (quoting Geller v. Dep't of Treasury, 53 N.J. 591,
597-98 (1969)).
However, these interpretive principles do not apply to eligibility
determinations. Krayniak, 412 N.J. Super. at 242. In light of the fiduciary duties
imposed on fund administrators, pension fund eligibility "must be carefully
interpreted so as not to 'obscure or override considerations of . . . a potential
adverse impact on the financial integrity of the [f]und.'" Id. at 242 (alteration in
original) (quoting Chaleff v. Teachers' Pension & Annuity Fund Trs., 188 N.J.
Super. 194, 197 (App. Div. 1983)).
The issue here was eligibility for a specific benefit. Because appellant
was not eligible for a survivor benefit, the rule of liberal construction does not
apply.
To the extent that any of appellant's remaining contentions are not
specifically addressed herein, we have concluded that they lack sufficient merit
to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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