The opinion
SKILLMAN, J.A.D.,
dissenting.
I am unable to agree with the majority’s expansive interpretation of the forfeiture of public employment provision of N.J.S.A. 2C:51-2a(2) and therefore dissent.
Appellant James E. Moore, Jr. was charged by Michael Morris in the White Township Municipal Court with two petty disorderly persons offenses of harassment, one by means of a telephone call in which he used offensively coarse and threatening language, in violation of N.J.S.A. 2C:33-4a, and the other by repeatedly coming to Morris’ home in his automobile, racing the engine, and leaving at a high rate of speed, in violation of N.J.S.A. 2C:33-4c. Moore, appearing pro se, was found guilty of both charges in municipal court. After merging the conviction under N.J.S.A. 2C:33-4c into the conviction under N.J.S.A. 2C:33-4a, the municipal court imposed a $100 fine and a $30 Violent Crimes Compensation Board penalty. Moore did not appeal from this conviction.
Shortly thereafter, the Department of Corrections (Department) served Moore, a Senior Corrections Guard, with a preliminary notice of disciplinary action charging him with conduct unbecoming an employee in public service, in violation of N.J.A. C. 4:1-16.9(a)(ll), 1 based upon his municipal court conviction. After the charges were sustained at a departmental hearing, Moore was ordered removed from his position.
Moore appealed his removal to the Merit System Board (Board). In response, the Department asserted that Moore had automatically forfeited his public employment pursuant to N.J.
*391 S. A 2C:51-2a(2) as a result of his convictions in municipal court of offenses “involving or touching” his public employment. 2 The Department presented testimony that the victim of the harassment adjudicated in municipal court, Michael Morris, was a Captain in the Department and had been Moore’s supervisor. In that capacity, Morris investigated a prior disciplinary matter involving Moore, drafted the charges, presented the case at a department hearing and assisted in presenting the case at a hearing before the Office of Administrative Law. The Department also presented evidence that Moore’s acts of harassment against Morris occurred the day after the Board reduced the penalty in the prior disciplinary action from removal to a 30 day suspension. According to Morris, Moore called him at home and said: “[Djon’t you like to play with people’s lives. I’m gonna f--k with your life.” Moore also drove around the area of the captain’s home later that day.
Based on this evidence, recounted in greater detail in the majority opinion, an Administrative Law Judge (AU) found that Moore’s acts of harassment were “integrally related” to Morris’ role in the prior disciplinary proceeding against him. The AU concluded that “appellant’s conviction for harassment of his immediate supervisor is precisely what the Legislature had in mind when it required that the offensive conduct merely touch the office, position or employment.” Consequently, the AU recommended that the Board find that Moore’s conviction had resulted in the forfeiture of his employment. The Board *392 accepted this recommended decision. 3
On appeal, Moore argues that (1) he was not holding public employment at the time he committed the alleged acts of harassment, because his removal from public employment for the prior disciplinary infraction was then still in effect and (2) even if he is deemed to have been a public employee at the time of the alleged acts of harassment, the offense for which he was convicted did not “involve” or “touch” his public employment. I agree substantially for the reasons expressed in the majority opinion that Moore held public employment when the conduct which formed the basis of his conviction took place. However, I dissent from the majority’s conclusion that Moore was convicted of an offense “involving or touching” his employment.
Preliminarily, I note that there is serious question whether the Board has the authority to adjudicate a forfeiture of public employment pursuant to N.J.S.A. 2C:51-2a. An administrative agency may only exercise such authority as has been delegated to it by the Legislature. In re Closing of Jamesburg High School, 83 N.J. 540, 549 (1980). Although the Board has broad authority to adjudicate disciplinary charges against a public employee and to impose an appropriate penalty, including “removal” from public employment, N.J.S.A. llA:2-6a, it does not have express authority to adjudicate “forfeitures” of public employment. 4 A forfeiture of public employment under N.J.S. *393 A. 2C:51-2a is a collateral disability resulting from a conviction of a criminal offense and has been described as “self-executing.” State v. Musto, 187 N.J.Super. 264, 305 (Law Div.1982), aff’d o.b. 188 N.J.Super. 106 (App.Div.1983). Therefore, I question whether this is an appropriate subject for administrative adjudication by the Board. Rather, it would seem more appropriate for any question which may exist concerning a forfeiture of public employment to be determined by the sentencing court, and if the sentencing court is unable to make this determination, such as where a public official’s conviction has occurred in federal court, see State v. Musto, supra, by the Law Division in an action in lieu of prerogative writs. This conclusion is supported by the fact that the prior reported cases involving forfeitures of public employment under N.J.S.A. 2C:51-2a have all arisen in the Law Division. See Bevacqua v. Renna, 213 N.J.Super. 554 (App.Div.1986); State v. Pitman, 201 N.J.Super. 21 (App.Div.1985); New Jersey Turnpike Employees v. New Jersey Turnpike Auth., 200 N.J.Super. 48 (App.Div.1985), certif. den. 101 N.J. 294 (1985); State v. Lore, 197 N.J.Super. 277 (App.Div.1984); State v. Musto, supra; O’Halloran v. DeCarlo, 156 N.J.Super. 249 (Law Div.1978), aff’d o.b. 162 N.J.Super. 174 (App.Div.1978), certif. den. 79 N.J. 469 (1978), cert. den. 442 U.S. 917 , 99 S.Ct. 2837 , 61 L.Ed.2d 284 (1979); State v. Botti, 189 N.J.Super. 127 (Law Div.1983).
However, Moore does not question the Board’s authority to adjudicate an alleged forfeiture under N.J.S.A. 2C:51-2a. Moreover, the question whether Moore forfeited his employment as a result of his petty disorderly persons conviction can be decided, in my view, based solely on the complaint and judgment of conviction in municipal court, without considering the proceedings before the Board. Therefore, the merits of this appeal can be decided without ruling upon the Board’s jurisdiction.
The forfeiture of public employment provisions of N.J.S.A. 2C:51-2 are one of a number of legal disabilities imposed upon *394 offenders under the Code. 5 Thus, the Code provides that persons convicted of crimes are prohibited from voting, N.J.S. A. 2C:51-3a, serving on a jury, N.J.S.A. 2C:51-3b, or purchasing a firearm, N.J.S.A. 2C:58-3c(l). In addition, it provides that any person convicted of a drug offense shall forfeit the right to operate a motor vehicle for a period of not less than six months. N.J.S.A. 2C:35-16.
A forfeiture of a public office, position or employment under N.J.S.A. 2C:51-2a occurs automatically upon a conviction for (1) “an offense involving dishonesty,” N.J.S.A. 2C:51-2a(l); (2) “a crime of the third degree or above,” NJ.S.A. 2C:51-2a(l); (3) “an offense involving or touching such office, position or employment,” N.J.S.A. 2C:51-2a(2); or (4) any other offense for which a statute other than the Code or the Constitution provides for a forfeiture. N.J.S.A. 2C:51-2a(3). 6 In addition, N.J.S.A. 2C:51-2c provides that upon conviction for “an offense involving or touching on [a person’s] public office, position or employment [that person] shall be forever disqualified from holding any office or position of honor, trust or profit under the *395 State or any of its administrative or political subdivisions.” 7
In construing N.J.S.A. 2C:51-2a(2), it is appropriate to compare a forfeiture of public employment with a proceeding before the Board for the removal of a public employee under N.J.S.A. 11A:2-13 et seq. In a proceeding under Title 11A, the Board is authorized not only to determine whether a public employee has committed a disciplinary infraction but also what penalty should be imposed. N.J.S.A. 11A:2-19. Thus, the Board may consider the seriousness of the disciplinary infraction committed by the public employee in light of the nature of his position and his past employment record in determining what penalty is appropriate under all the circumstances. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); New Jersey Dept. of Corrections v. Torres, 164 N.J.Super. 421, 428-429 (App.Div.1978), aff’d 81 N.J. 571 (1980). In contrast, upon commission of an offense which falls within N.J.S.A. 2C:51-2a, the forfeiture of public employment is automatic. There is no opportunity for consideration of the individual circumstances of the offense, the sensitivity of the position occupied by the public employee or his past employment record. In light of the inflexibility and harshness of an automatic forfeiture of public employment, I would give N.J.S.A. 2C:51-2a *396 the same strict interpretation ordinarily accorded forfeiture statutes. As indicated in Uricoli v. Police & Firemen’s Retirement System, 91 N.J. 62 (1982):
[Fjorfeiture—whether of one’s pension or any other property or benefit to which one is otherwise entitled—is a penalty or a punishment for wrongful conduct. As such, “[a]ll elements of doubt must be resolved in favor of the person against whom the forfeiture is sought.” [ 91 N.J. at 76 , quoting State v. LaBella, 88 N.J.Super. 330, 338 (Law Div.1965) (citations omitted)].
And since forfeiture of public employment is an additional sanction provided by the Code of Criminal Justice for the commission of a criminal offense, the general principle that penal statutes are strictly construed provides further support for a strict interpretation of N.J.S.A. 2C:51-2a. See State v. Valentin, 105 N.J. 14, 17 (1987).
A strict construction of N.J.S.A. 2C:51-2a(2) requires that its application be limited to circumstances where either the offense inherently touches or involves a public office, position or employment or the specific charges of which a public official or employee has been found guilty touched or involved his public office, position or employment. Certain offenses, such as misconduct in office, N.J.S.A. 2C:30-2, are inherently related to public office or employment. Other offenses, such as bribery, N.J.S.A. 2C:27-2, extortion, N.J.S.A. 2C:20-5d, falsification of public records, N.J.S.A. 2C:21-3a, or theft, N.J.S.A. 2C:20-1, may also relate to an offender’s public office or employment. Where such a relationship exists, it ordinarily is revealed on the face of the indictment, accusation or complaint and the judgment of conviction.
In my view, an offense should be found to involve or touch a public office, position or employment, requiring automatic forfeiture of that office, position or employment, only where a defendant has been charged and found guilty of such an offense in a criminal proceeding. This interpretation of N.J.S.A. 2C:51-2a(2) would limit its application to situations where an offense directly relates to the performance of public duties and thus assure that a forfeiture of public office or employment would be imposed only for “a violation of the public trust.” *397 State v. Musto, supra, 187 N.J.Super. at 312 . Moreover, consistent with the principle that a forfeiture of public employment is “self-executing,” id. at 305 , this interpretation would avoid the need to conduct a proceeding collateral to a criminal trial in order to determine whether an offense had some indirect relationship to a public office or employment. In addition, it would reduce the risk that a public employee would plead guilty to a disorderly persons charge or defend himself pro se, without realizing that one consequence of a conviction will be a forfeiture of his job and a lifetime disqualification from public employment. See State v. Heitzman, 209 N.J.Super. 617 (App.Div.1986), aff’d o.b. 107 N.J. 603 (1987).
The prior decisions of this court are generally consistent with this interpretation of N.J.S.A. 2C:51-2a(2). 8 In Hayes v. Hudson Cty. Bd. of Freeholders, 116 N.J.Super. 21, 24 (App.Div.1971), we noted the parties agreement that “a violation of N.J.S.A. 2A:135-8(c) is an offense ‘touching the administration of his office’ by the person convicted thereof, for the purpose of N.J.S.A. 2A:135-9 [the predecessor to N.J.S.A. 2C:51-2a(2) ].” Since a violation of N.J.S.A. 2A:135-8(c), which made it a misdemeanor for a local public official to have an interest in goods, supplies or properties furnished to a local public entity, was a crime which inherently touched public office, no collateral proceedings were required to determine that a conviction resulted in a forfeiture. In State v. Musto, supra, 187 N.J.Super. at 271-282 , the court concluded that a state senator’s conviction of various federal crimes resulted in the forfeiture of his office because the “gist, or underlying elements” of those federal crimes came within N.J.S.A. 2C:51-2a. This conclusion was reached without conducting any collateral evidential inquiry in *398 the state court. In State v. Lore, supra, 197 N.J.Super. at 277 , a police officer was convicted of misconduct in office for committing an assault while performing his official duties. Since misconduct in office is a crime inherently touching or involving public employment, no collateral proceedings were required to establish the forfeiture. In fact, it was imposed as part of the sentence in the criminal trial. In State v. Pitman, supra, 201 N.J.Super. at 21 , a correction officer was indicted for misconduct in office involving an assault upon an inmate. 9 However, the charges were downgraded pursuant to plea negotiations to the disorderly persons offense of obstructing the administration of law or other governmental function, in violation of N.J.S.A. 2C:29-1. Thus, the officer was found guilty of an offense inherently involving or touching public employment. Moreover, since the sentence imposed by the trial judge included the forfeiture of public employment, no collateral proceedings were required. Thus, our prior decisions sustaining forfeitures of public office under N.J.S.A. 2C:51-2a(2) have all involved public employees who were charged and found guilty in a criminal trial of an offense “involving or touching” their public office or position. 10
*399 The conclusion that N.J.S.A. 2C:51-2a(2) only applies to a public employee found guilty in criminal proceedings of offenses involving or touching public employment requires the reversal of the Board’s declaration that Moore forfeited his position. Moore was charged with the petty disorderly persons offense of harassment. This offense does not inherently implicate the performance of public responsibilities. Moreover, nothing in the complaint or judgment of conviction suggests that Moore was convicted of a work-related offense. Therefore, the proceeding in municipal court did not result in a “self executing” forfeiture of Moore’s public employment, see State v. Musto, supra, 187 N.J.Super. at 305 , and, in my view, the Department had no authority under N.J.S.A. 2C:51-2a(2) to present evidence to the Board subsequent to the conviction to show that Moore’s petty disorderly offense actually “touched” or “involved” his public employment.
Moreover, even assuming that the Department was entitled to present evidence to show that there were additional elements to Moore’s offense not adjudicated in municipal court, I would still conclude that his offense was not one “involving or touching” his public employment. The offense did not occur during working hours. In fact, Moore was suspended from his employment at the time due to his prior disciplinary infraction. Furthermore, the offense did not occur at Moore’s place of employment but rather at the home of his supervisor approximately 40 miles away. Consequently, the offense did not immediately impact upon the operation of the correctional facility at which Moore was employed. Although Moore’s conduct *400 undoubtedly would have an adverse effect on his long-term relationship with his supervisor, the same may be said of any hostile act by an employee against a supervisor. And even if Moore’s offense was committed in reaction to his supervisor’s involvement in the prior disciplinary proceedings, the relevant inquiry should not be whether the offense was motivated by an incident occurring during his public employment but rather whether the offense itself touches or involves that employment.
I find no support for the view expressed in the majority opinion (at 385-387) that an automatic forfeiture of public employment under N.J.S.A. 2C:51-2a(2) turns on an individualized assessment of the particular duties of a public employee. N.J.S.A. 2C:51-2a(2) applies to all public officers and employees. Nothing in the language of this section or any prior decision of this court suggests that its application varies depending on the nature of a public employee’s responsibilities. Indeed, the Legislature used precisely the same language in N.J.S.A. 2C:51-2c to describe those offenses which would result in a lifetime disqualification from public office or employment. In addition, the part of N.J.S.A. 2C:51-1a(4) quoted by the majority (at 387-389) is inapplicable, because a forfeiture of public employment pursuant to N.J.S.A. 2C:51-2a(2) is a disability “[pjrovided by ... the code” and thus expressly authorized by N.J.S.A. 2C:51-1a(2). Furthermore, the individualized assessment of the relationship between an offense and a public employee’s duties suggested by the majority is inconsistent with the principle that a forfeiture of public employment under N.J.S.A. 2C:51-2a is a “self-executing” consequence of a conviction.
I am also concbmed that the majority’s expansive interpretation of N.J.S.A. 2C:51-2a(2) will result in public employees forfeiting their jobs under a variety of circumstances which could not have been intended by the Legislature. Minor disputes between co-employees or employees and supervisors are *401 fairly common. Such disputes may result in conduct which would support a conviction for simple assault, N.J.S.A. 2C:12-1a, the use of offensive language, N.J.S.A. 2C:33-2b or, as in this case, harassment, NJ.S.A. 20:33-4. A public employee who drinks too much at an office Christmas party and pushes a supervisor or directs offensive language at him should not be exposed to automatic forfeiture of his job and lifetime disqualification from public employment.
The conclusion that Moore did not forfeit his public employment under N.J.S.A. 2C:51-2a(2) would not prevent the Department from taking effective disciplinary action. The Department could pursue its disciplinary action against Moore for conduct unbecoming an employee in public service and the Board could order his removal if it found that disposition appropriate upon a full review of the circumstances of the offense, Moore’s prior disciplinary record and the nature of his position. See Henry v. Rahway State Prison, supra, 81 N.J. at 571 ; Moorestown Tp. v. Armstrong, 89 N.J.Super. 560 (App.Div.1965), certif. den. 47 N.J. 80 (1966).
Accordingly, I would reverse the decision of the Merit System Board adjudicating that Moore’s conviction for harassment resulted in the automatic forfeiture of his public employment and remand the matter to that agency to determine whether Moore was guilty of conduct unbecoming an employee in public service and, if so, what penalty should be imposed for that disciplinary infraction. 11
Effective October 5, 1987, this regulation was recodified as N.J.A.C. 4A:2-2.-3(a)6.
It is unclear whether the first time the Department invoked N.J.S.A. 2C:5-2a(2) was at the hearing before the Board. The preliminary and final notices of disciplinary action issued by the Department charged Moore with conduct unbecoming an employee in the public service and the final notice of disciplinary action simply recited that the charge had been sustained. Neither notice mentioned N.J.S.A. 2C:51-2a(2). However, counsel for the Department indicated at oral argument that N.J.S.A. 2C:51-2a(2) had been relied upon at the departmental hearing. No transcript of that hearing or of the departmental hearing officer's decision has been submitted on this appeal.
The Board's final decision also adjudicated a claim by Moore for backpay arising from the Board’s reduction of the penalty imposed upon him in the prior disciplinary action. That aspect of the Board's decision has not been appealed.
On October 5, 1987, the Board adopted N.J.A.C. 4A:2-2.7(c), which purports to confer authority on any appointing authority subject to Title 11A to adjudicate the applicability of N.J.S.A. 2C:51-2. In addition, the Board purportedly has the authority under N.J.A.C. 4A:2-2.8 to review an appointing authority's declaration of a forfeiture of public employment. The record does not indicate whether appointing authorities or the Board have asserted authority to pass on claims of forfeiture of public employment prior to adoption of this administrative regulation.
For a general discussion of the history of collateral disabilities imposed as a result of criminal convictions and recommendations for changes in such provisions, see Special Project, "The Collateral Consequences of a Criminal Conviction,” 23 Vand.L.Rev. 929 (1970).
Although NJ.S.A. 2C:51-2a appears to have been based partly on section 306.2 of the Model Penal Code, the language of the two provisions differs in some significant respects. Section 306.2 provides for a forfeiture of "public office” upon conviction of a "felony” or a crime involving "dishonesty,” which is similar to NJ.S.A. 2C:51-2a(l). However, the part of section 306.2(2) providing that a public office is forfeited upon conviction "of a crime involving malfeasance in such office" differs significantly from the language of N.J.S.A. 2C:51-2a(2). Thus, N.J.S.A. 2C:51-2a(2) appears to have been derived from NJ.S.A. 2A:135-9, which formerly provided that a public office or position would be forfeited upon conviction for "a misdemeanor or high misdemeanor touching the administration of his office or position,” rather than the Model Penal Code. Consequently, there are no decisions from other jurisdictions which are helpful in interpreting N.J.S.A. 2C:51-2a(2).
N.J.S.A. 2C:1—4(b) provides in part that "[c]onviction of [disorderly persons and petty disorderly persons offenses] shall not give rise to any disability or legal disadvantage based on conviction of a crime.” In State v. Musto, supra, 188 N.J.Super. at 313-314 , the court suggested that N.J.S.A. 2C:1-4(b) might be construed to exclude disorderly persons offenses from the application of N.J.S.A. 2C:51-2. However, in several subsequent opinions, we stated, without referring to N.J.S.A. 2C:1—4(b), that N.J.S.A. 2C:51-2 applies to convictions for disorderly persons offenses. Bevacqua v. Renna, supra, 213 N.J.Super. at 554 ; State v. Pitman, supra, 201 N.J.Super. at 21 . By the enactment of chapter 427 of the Laws of 1987, the Legislature authorized the court, upon application of the Attorney General or county prosecutor, to waive any forfeiture or disqualification imposed under N.J.S.A. 2C:51-2a, b or c upon conviction of a disorderly persons or petty disorderly persons offense. See N.J.S.A. 2C:51—2d. Such a waiver would be unnecessary if N.J.S.A. 2C:51-2 did not apply to disorderly persons offenses. Therefore, the Legislature appears to have ratified our interpretation of N.J.S.A. 20:51-2 in Bevacqua and Pitman .
While the Supreme Court has referred to N.J.S.A. 2C:51-2a(2) in dealing with other issues, such as the forfeiture of public pensions, Uricoli v. Police & Firemen’s Retirement System, supra, 91 N.J. at 75 ; Masse v. Public Employees Retirement System, 87 N.J. 252, 262 (1981), it has not had occasion to interpret this section. Thus, the only relevant authorities are decisions of this court and the Law Division.
Although two other public employees prosecuted with Pitman were also found to have forfeited their public employment, only Pitman filed a notice of appeal.
State v. Bielecki, 196 N.J.Super. 332 (App.Div.1984), certif. den. 99 N.J. 216 (1984), which is heavily relied upon by the majority (at 384), did not involve N.J.S.A. 2C:51-2a(2). Rather, it involved N.J.S.A. 2A:81-17.2a3, which provides for the removal of "[a]ny public employee who admits the commission of a misdemeanor or high misdemeanor relating to his employment or touching the administration of his office or position before any court, grand jury or the State Commission of Investigation.” (Emphasis added). Bielecki was never charged with a crime. Thus, there was no criminal charge or judgment of conviction upon which to base a determination as to whether his offense was one "relating to his employment or touching the administration of his office." Therefore, this determination was based upon a transcript of the grand jury proceeding in which he "admitted" the offense, as required by N.J.S.A. 2A:81-17.2a3. Moreover, the offense which the trial judge found Bielecki had committed was "falsely swearing before a State Grand Jury investigating acts of official corrup *399 tion.” 196 N.J.Super. at 334 . In rejecting Bielecki's argument that this offense did not relate to or touch his employment, we noted that "the underlying factual basis of the false swearing admission ... was the investigation of misappropriation of property donated to the municipality or receipt of stolen goods by officers of the Mount Olive Police Department." 196 N.J.Super. at 337 . Such an investigation obviously has a far more direct relationship to public employment than the harassment of a supervisor in a non-work related context.
The effect of the municipal court conviction in the disciplinary proceeding before the Board would be governed by the principles set forth in In re Tanelli, 194 N.J.Super. 492 (App.Div.1984), certif. den. 99 N.J. 181 (1984).