# Makwinski v. State

> Supreme Court of New Jersey · May 9, 1978 · 76 N.J. 87

URL: https://www.frixlaw.com/law-library/cases/9646410

## Case

- **Full name:** Charles L. Makwinski, Plaintiff-Apppellant, v. State of New Jersey, Board of Commissioners, Consolidated Police and Firemen’s Pension Fund, Division of Pensions, Department of the Treasury, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** May 9, 1978
- **Citations:** 76 N.J. 87; 385 A.2d 1227; 1978 N.J. LEXIS 191
- **Precedential status:** Published
- **Opinion:** Concurrence by Conford
- **Judges:** Sullivan, Pashman, Clifford
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*94 Conford, P. J. A. D.
(temporarily assigned), concurring. I agree with the Court’s decision that Makwinski he awarded a pension based upon his status of age and years of service as of June 1, 1970, as though a formal application for retirement had been made effective that day. While it is clear to me that the conduct resulting in his conviction for misconduct in office was dishonorable, the statute entitled him to a pension because he had previously served the minimum years of honorable service and attained the necessary age of entitlement to a pension under the statute. It is conceded by the defendants that Makwinski had satisfied those requisites by the indicated date, which was prior to the act of misconduct for which he was convicted. As I read the statute, it is irrelevant that subsequent to the accrual of the minimum requisites for the pension the applicant committed a dishonorable act, except that it is implicit that time of service after a dishonorable act cannot count in computing the amount of pension.
As. of June 1, 1970, the applicable statute (N. J. S. A. 43:16-1) provided, pertinently:
* * !• [A]ny active member of a police department * * * who shall have served honorably in the police * * * department for a period of twenty-five years and reached the age of fifty-one years >!•. ,# * ghall, on kis own application, be retired on a service retirement pension * *' ®.
The plain and unambiguous language of this-statute requires honorable service only during the 25 years of service which (providing the age requirement is also met) qualifies the applicant for a pension. There is no reference to honorable service beyond that period. Yet a series of decisions in .this State following the leading case of, Plunkett v. Pension Comm'rs of Hoboken, 113 N. J. L. 230 (Sup. Ct. 1934) aff’d o. b. 114 N. J. L. 273 (E. & A. 1935), has interpolated into the statute, a. provision' for total forfeiture of any pension if, even after the specified period of honorable service, the employee remains, in service instead of applying for *95 retirement and thetreafter commits a dishonorable act. Walter v. Police & Fire, etc., Trenton, 120 N. J. L. 39 (Sup. Ct. 1938); Mount v. Trustees of Pub. Emp. Retirement Syst., 133 N. J. Super. 72 (App. Div. 1975); Hozer v. State, etc., Police & Firemen's Pension Fund, 95 N. J. Super. 196 (App. Div. 1967), certif. den. 50 N. J. 285 (1967). This Court has not heretofore been presented with the issue as to whether this rule should continue to be approved. Eor reasons to be set forth, I would overrule that line of cases and hold that they misconstrue the statute and apply notions of public policy which I believe discordant with basic justice.
There can be no doubt that had Makwinski applied for a pension on May 31, 1970 he would have had an absolute right to it. See McFeely v. Board of Pension Com’rs., 1 N. J. 212, 216 (1948). He had worked for 33 years to earn it. Presumably his financial planning, savings and insurance were geared to the expectancy of the pension. Upon his death after retirement his widow and surviving children would share in the pension. N. J. S. A. 43:16-3(b). What considerations of justice or public policy could warrant the absolute forfeiture of those expectancies when the policeman, instead of retiring and vesting his rights, continues in the service and thereafter, no matter how soon or late, commits an act constituting dishonorable service, no matter how minor? I do not perceive any, absent express legislative directions for forfeiture in those circumstances.
I turn to the reasons for the indicated result set forth in the cases. In Plunkett, supra, it was stated: “The inducement for efficient and conscientious service, after the member attained the age of fifty years, would be immeasurably lessened, if he could, in the event of a conviction of charges of misconduct, insist that his dismissal be accompanied by the statutory pension.” 113 N. J. L. at 232. In Walter, supra, the court said: “A pension is, in effect, but the taxpayers’ reward, given pursuant to legislative mandate, for honest and efficient service. * * * To bestow that reward upon one *96 whose record of public service is marred by a conviction for malfeasance in office would be to place a premium upon dishonesty and inefficiency * * 120 N. J. L. at 42.
It must first be noted that the underlying assumption of the established line of cases in this area that a public pension is a state reward or sovereign gratuity has been replaced bj;- “the more modern concept that they [pensions] are some form of delayed wages or salary to compensate the employee during his declining years * * Watt v. Mayor and Council of Borough of Franklin, 21 N. J. 274, 279 (1956); and see Mount v. Trustees of Pub. Emp. Retirement Syst., supra, 133 N. J. Super. at 79. In the leading case of Spina v. Consolidated Police etc. Pension Fund Com., 41 N. J. 391, 401 (1964), the late Chief Justice Weintraub, while eschewing any one comprehensive label for public pension rights, recognized that the government’s contribution to a pension fund “[i]n part * * * compensates for services already rendered” and is “also a reward for services to be rendered over the, required minimum numler of years * * (emphasis added). “In both respects the contribution seems compensatory * * The employee’s contribution was said “to be a sum already earned,” although it need not necessarily be returned upon cessation of employment. Id. at 402.
While the Legislature has not changed the basic structure of the statutory language during the period of decision of the forfeiture cases cited above, a clue to its general attitude in the matter may be discerned from N. J. S. A. 43 :11-1, which provides that no member of a police department “who shall have served honorably * * * for the required number of years to entitle him to retire * * * on a pension, shall be deprived of his pension privileges because of any violation of the rules and regulations established for the government of the department, but he may be fined, reprimanded or discharged.” The section goes on to say that a member convicted of crime (presumably after the requisite years of honorable service) may be dismissed or punished in any manner provided by law. Nothing is said as to loss of pension in such *97 a case. Since violations of regulations may obviously rise to the degree of conduct not honorable, within N. J. S. A. 43 :16-1, and since N. J. S. A. 43:11-1 would clearly prohibit denial of a pension for “any” regulation violation occurring after honorable service for the requisite number of years to earn a pension, the latter section appears to evince a general legislative policy contrary to the Plunkett line of cases.
I am in complete disagreement with the accuracy of such statements in the older cases, relied upon to justify the forfeiture rule, as that the allowance of a pension despite misconduct occurring after the passage of time in honorable service sufficient for a pension “would be to place' a premium upon dishonesty and inefficiency * * Walter, supra, 120 N. J. L. at 42. The policeman in the situation under consideration obviously receives nothing of value for the subsequent act of dishonesty. Eor that he subjects himself to disgrace, removal and criminal prosecution. The allowance of the pension would be for the period of honorable conduct.
True, as pointed out in Plunkett, supra, 113 N. J. L. at 232, the rule I advocate may be regarded as lessening the “inducement” for honorable service after attaining the period of entitlement to the pension. But this begs the question as to whether, from that consideration alone, the Legislature can fairly be regarded, from the language of the statute, to have intended to add to the criminal and other sanctions for misconduct in office the total forfeiture for himself and his family of the pension the officer fully earned and which would have vested in him and them had he applied for it before committing the dishonorable act. In my view, the “punishment” simply “does not fit the crime” — or at least not to the extent that we should assume the Legislature intended to impose it without so expressly declaring. A theoretically accrued pension worth scores of thousands of dollars should not become forfeitable for the kind of subsequent offense which took place here and which was presumably ap *98 propriately punished criminally by a $250 fine without probation. 1
Until the Legislature declares otherwise, it is high time this Court revoked a rule partly based upon obsolete concepts of the nature of a pension which projects the potential of serious injustice to policemen, firemen and their families.
Justice Schrbibbr joins in this concurring opinion.
Although there may be a difference in appropriate public policy as to treatment of pension rights in the private sector, the contrast between the Plunhett rule and the provisions of the Internal Revenue Code (26 V. S. G. A. § 411(a) (3)) and the Employee Retirement Income Security Act (ERISA) (29 U. S. G. A. § 1053(a)(3)) as to forfeitability of interests in pensions is notable. Benefits attributable to employee contributions are never forfeitable; those attributable to employer contributions only upon death of the participant, reemployment of the retiree, retroactive amendment of the plan or withdrawal of mandatory employee contributions. A particular concern of Congress in mandating nonforfeitability for any other reason was that otherwise pension rights might be cut off because of bad or disloyal conduct of the employee subsequent to vesting. Legislative History: P. L. 93-406, U. S. Code Cong. & Admin. News 1974, p. 4639, at 5052.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646410. Public record. Not legal advice.