Judy Thorpe v. Board of Trustees, Etc.

NOT FOR PUBLICATION WITHOUT THE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-3371-21

JUDY THORPE,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________

Argued November 8, 2023 – Decided November 17, 2023

Before Judges Haas and Gooden Brown.

On appeal from the Board of Trustees of the Public

Employees' Retirement System, Department of

Treasury, PERS No. xx8918.

Judy Thorpe, appellant, argued the cause pro se.

Robert E. Kelly, Deputy Attorney General, argued the

cause for respondent (Matthew J. Platkin, Attorney

General, attorney; Sookie Bae-Park, Assistant Attorney

General, of counsel; Robert E. Kelly, on the brief).

PER CURIAM

Appellant Judy Thorpe appeals from the May 19, 2022 final decision of

the Board of Trustees of the Public Employees' Retirement System (Board)

finding that Thorpe was not eligible for deferred retirement benefits because she

was removed from her prior employment for cause on charges of misconduct or

delinquency directly related to her employment. We affirm.

By way of background, it is well established that "a public employee is

disqualified from receiving deferred retirement benefits if [s]he has been

'remov[ed] for cause on charges of misconduct or delinquency.'" Borrello v. Bd.

of Trs., Pub. Emps.' Ret. Sys., 313 N.J. Super. 75, 77 (App. Div. 1998) (second

alteration in original) (quoting N.J.S.A. 43:15A-38); see also In re Hess, 422

N.J. Super. 27, 37 (App. Div. 2011) (stating that deferred retirement benefits

will be forfeited pursuant to N.J.S.A. 43:15A-38 when the employee has been

involuntarily removed from employment due to misconduct related to the

employment). In this regard, N.J.S.A. 43:15A-38 plainly states:

Should a member of the Public Employees' Retirement

System, after having completed [ten] years of service,

be separated voluntarily or involuntarily from the

service, before reaching service retirement age, and not

by removal for cause on charges of misconduct or

delinquency, such person may elect to receive:

....

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(b) A deferred retirement allowance, beginning at

retirement age . . . .

[(emphasis added).]

In this case, Thorpe began working for the Juvenile Justice Commission

(JJC) in April 2005. Thorpe v. State, Nos. A-0104-11, A-5603-11 (App. Div.

June 10, 2015) (slip op. at 2). Following a series of incidents, the JJC directed

Thorpe to undergo a fitness for duty evaluation in January 2008. Id. at 2-8. On

January 4, 2008, Thorpe "refused to sign a release form or participate in the

evaluation." Id. at 8.

"As a result, the JJC issued [Thorpe] a preliminary notice of disciplinary

action on January 7, 2008, seeking to terminate her for insubordination, failing

to follow sick leave procedures, and 'other sufficient cause.'" Ibid. Following

a departmental hearing, "[t]he hearing officer sustained the charges and [Thorpe]

was removed from employment." Id. at 8-9.

Thorpe subsequently pursued a series of legal actions following the JJC's

decision to challenge her removal from employment. None were successful.

Thorpe's union filed a grievance protesting her removal by the JJC, but the

arbitrator upheld Thorpe's termination. Thorpe v. Cipparulo, No. A-0418-20

(App. Div. May 17, 2022) (slip op. at 1). Thorpe also filed an action in the Law

Division alleging discrimination and unlawful retaliation under the Law Against

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Discrimination, N.J.S.A. 10:5-1 to -50, and the Conscientious Employee

Protection Act, N.J.S.A. 34:19-1 to -14. Id. at 1-2. "The trial court dismissed

this action after finding that [Thorpe] failed to establish a prima facie case of

discrimination or retaliation. We affirmed." Id. at 2.1

In April 2021, Thorpe filed an application with the Board for deferred

retirement benefits. Because Thorpe had been involuntarily removed from her

position with the JJC "on charges of misconduct or delinquency," the Board

applied N.J.S.A. 43:15A-38 and denied her application in a May 22, 2021

written decision. Thorpe asked the Board to reconsider its determination and

the Board, finding there was no dispute as to any of the material facts, and again

relying upon N.J.S.A. 43:15A-38, denied this request on May 19, 2022. This

appeal followed.

On appeal, Thorpe argues that the JJC should not have been permitted to

require her to submit to a fitness for duty examination and, therefore, her

1

"In 2018, ten years after her termination from the JJC, Thorpe filed an

application with the Board for ordinary disability benefits." Thorpe v. Bd. of

Trs., No. A-0689-20 (App. Div. Mar. 8, 2023) (slip op. at 3-4). The Board

denied this application because Thorpe had been involuntarily removed from

employment on charges rather than as a result of her alleged disability. Id. at 4.

See N.J.A.C. 17:1-6.4(b)(1) (stating that a PERS member who has been removed

from service for cause "will not be permitted to apply for a disability

retirement[.]").

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4

termination on charges of misconduct or delinquency was invalid. Thorpe also

asserts that "there are legal arguments upon which the Board may indeed rely to

approve [her] application for deferred retirement."

These arguments lack sufficient merit to warrant extended discussion in a

written opinion. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons

stated by the Board in its thorough May 19, 2022 written decision and add the

following comments.

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.

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[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). 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 Rev., Dep't of Labor, 421 N.J. Super.

281, 287 (App. Div. 2011) (quoting Messick v. Bd. of Rev., 420 N.J. Super. 321,

325 (App. Div. 2011)). 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 v. N.J. Div. of

Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)). "Nevertheless, 'we

are not bound by the agency's legal opinions.'" A.B. v. Div. of Med. Assistance

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& 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] d e novo review."

Ibid.

Applying these principles, we discern no basis for disturbing the Board's

well-reasoned determination that Thorpe was not eligible for deferred retirement

benefits. N.J.S.A. 43:15A-38 expressly disallows a claim for deferred

retirement benefits to members fired for misconduct or delinquency, as Thorpe

was here. Thorpe is not entitled to relitigate the finding of insubordination,

failing to follow sick leave procedures, and other sufficient cause, which

resulted in her removal from employment in 2008. The statute makes forfeiture

automatic where, as here, the employee has been removed for misconduct or

delinquency related to her employment. Hess, 422 N.J. Super. at 37; Borrello,

313 N.J. Super. at 77.

Affirmed.

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