Uricoli v. Police & Fire. Retirem. Sys.

O’HERN, J.,

dissenting.

The Court today sets an unfortunate standard for the conduct of public service in New Jersey. It holds that a police chief convicted of official misconduct is nonetheless entitled to be maintained on pension at public expense. For the reasons stated below, I respectfully dissent. »

A more detailed understanding of the facts puts the case in better perspective. Eugene Uricoli had been on the City of *82 Orange police force since 1952. He was appointed Chief of Police in 1970 and continued as such until these events took place. In 1975, Uricoli became the subject of a grand jury investigation. This investigation led to eight separate indictments arising out of occurrences in the 1970’s. One indictment charged misconduct in office in connection with the illegal disposition in 1972 of a careless driving ticket. There was no allegation that Uricoli sought or received any personal gain. On April 9, 1976, a jury found him guilty. Judgment of conviction and a sentence of one year and a $1,000 fine was entered on May 18, 1976. The custodial sentence was suspended. He was removed from office on June 7, 1976.

In stating his reasons for suspending custodial sentence, the judge said: “Conviction of a crime as to this defendant in itself is punishment. No rehabilitation is necessary nor any need for deterrence. Custodial treatment is not indicated. His loss of standing in the community and subsequent loss of respect should suffice.” In January 1979, after final appellate review, the prosecutor made a motion to dismiss the remainder of the indictments, stating to the court that the ends of justice had been served by the conviction and sentence and because “more significantly, pursuant to New Jersey law, Eugene Uricoli was removed from office and lost all his pension rights.” The motion was granted and the seven remaining indictments were dismissed on February 1, 1979.

Uricoli filed this application for a disability pension on June 19, 1979. His claim is for a prorated pension based on that portion of his tenure served without misconduct. After a hearing, Uricoli’s application was denied by the Consolidated Police and Firemen’s Pension Fund Commission on the ground that the requirement o£ “honorable service” had not been met.

The section of the retirement act under which Uricoli filed his application does not expressly recite that honorable service is a *83 qualification for benefits. 1 However, it has been consistently held that an honorable service qualification is implicit in every pension act. Unless this requirement is satisfied, no pension can be granted. Makwinski v. State, 76 N.J. 87 (1978); Plunkett v. Pension Comm’rs of Hoboken, 113 N.J.L. 230 (Sup.Ct.1934), aff’d o.b., 114 N.J.L. 273 , 176 A. 341 (E. & A. 1935); Fromm v. Bd. of Directors of Police & Firemen’s Ret. System, 81 N.J.Super. 138 (App.Div.1963); Ballurio v. Castellini, 27 N.J.Super. 113 (Law Div. 1953), aff’d, 29 N.J.Super. 383 (App.Div.1954). The question then is whether Uricoli’s conduct constitutes dishonorable service.

Two recent cases, Masse v. Public Employees Retirement System, 87 N.J. 252 (1981), and Procaccino v. Public Employees Retirement System, 87 N.J. 265 (1981), reviewed the history and policy of the honorable service requirement. No further detailed review is needed. In Masse and Procaccino , the Court held that conviction of a crime, even involving moral turpitude, does not result in forfeiture of vested pension rights so long as the misconduct was unrelated to public employment. These cases emphasized that honorable service is the key element in determining pension eligibility.

Uricoli’s unlawful disposal of a traffic summons directly touched upon the administration of his office and struck at the heart of the justice system he was sworn to uphold. That Uricoli neither sought nor received any personal gain from his *84 ticket fixing does not make it any the less dishonorable. The result of ticket fixing is to defraud the State. As such, it involves moral turpitude. “Evenhanded justice for all traffic violators was defeated.” Fromm, 81 N.J.Super. at 145.

Uricoli’s reliance on Makwinski v. State, supra, is misplaced. The Court held there, under a “unique” fact pattern, that a police chiefs official misconduct did not constitute dishonorable service because it was prompted by his concern for the betterment of his community. In that case the police chief had permitted an on-duty officer to do carpentry work on a Knights of Columbus hall which was frequently used for public or governmental functions. No similar concern for the betterment of the community was urged at the pension hearing in this case. There can be no doubt that appellant’s ticket fixing rendered his service dishonorable.

I am not unmindful of the personal suffering that results from a pension forfeiture. Appellant urged the Court to adopt a rule that would treat a public pension simply as a form of deferred compensation and to hold that a public employee does not, after dishonorable service, forfeit a pension once vested. The Court’s opinion stops short of this and adopts a test “which calls for flexibility and the application of equitable considerations.”

In Eyers v. State of New Jersey, Bd. of Trustees Public Employees’ Retirement System, 91 N.J. 51 (1982), also decided today, I stressed in dissent that “[ujnder our pension laws both benefits and loss of benefits must be dispensed with an even hand.” I doubt that there can be equal treatment for all under a discretionary rule of entitlement. I agree with the late Chief Justice Weintraub:

... [TJhere is no profit in dealing in labels such as “gratuity,” “compensation,” “contract,” and “vested rights.” None fits precisely, and it would be a mistake to choose one and be driven by that choice to some inevitable consequence.

Government’s contribution to a pension fund has several facets. [Spina v. Consolidated Police etc. Pension Fund Comm., 41 N.J. 391 at 401 (1964)].

*85 One of those undoubted facets is the continued need to insure integrity in government:

The rationale underlying these decisions is that a retirement pension is an inducement to conscientious and efficient public service which inducement would be immeasurably lessened if the employee could assert an indefeasible claim to the pension simply because the dishonorable conduct occurred after the employee had served the minimum number of years of service. Plunkett, supra, 113 N.J.L. at 232 ; Ballurio v. Castellini, 29 N.J.Super. 383, 389 (App.Div.1954). [Makwinski, 76 N.J. at 90 ].

In Masse v. Public Employees Retirement System, supra, this Court defined that facet of legislative purpose as involving a nexus between the dishonorable conduct and the public employment. Only when that nexus was absent 2 has the Court ever found that legislative intent did not require forfeiture. I see no reason to depart from that judgment here.

The Court’s reliance in Masse and Procaccino on the new forfeiture provisions of N.J.S.A. 2C:51-2(a) reinforces my conclusion here. These provisions contain an “expressed legislative policy ... that offenses connected and related to public employment result in a greater sanction than when the offenses are not connected or related.” Masse, 87 N.J. at 262 .

Justice Pashman, concurring in Makwinski , emphasized the “paramount importance of public employees acting honestly in accordance with the public trust placed in them,” 76 N.J. at 93 , and reaffirmed support for the rule that “dishonorable service requires total forfeiture of pension rights, even one which has ‘vested.’ ” Id. I would adhere to that established law and hold that the pension applicant, having been found guilty of dishonorable service, is not entitled to a prorated pension.

Chief Justice WILENTZ and Justice CLIFFORD join in this opinion.

*86 PASHMAN and SCHREIBER, JJ., concurring in the result.

For reversal and remandment — Justices PASHMAN, SCHREIBER, HANDLER and POLLOCK — 4.

For affirmance — Chief Justice WILENTZ and Justices CLIFFORD and O’HERN — 3.

N.J.S.A. 43:16-2. Retirement for disability

Any member of such police or paid or part-paid fire department who shall have received permanent disability as a direct result of a traumatic event occurring while performing his regular or assigned duties shall be retired upon an accidental disability pension equal to % of his average salary....

A member of any such department who shall have served honorably and who shall have become permanently and totally incapacitated for service for any cause other than as a direct result of a traumatic event occurring during the performance of duty, shall, upon approval of his application, or the application of his employer, be retired on a nonaccident disability pension equal to 'h of his average salary.

In Masse , the misconduct was a sexual offense by a municipal utilities employee; in Procaccino , it was misuse of funds as a part-time constable by a title examiner in the Department of Transportation.