Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

This case addresses, in very simple terms, the review process that the Board of Pensions will make regarding an agency decision and a claim against the pension system. In this specific case a public employee, Department of Corrections officer, made a request for his public pension at the conclusion of 25 years of service. The employee chose to retire after being involved an altercation outside of work at a bar after hours. The DOC officer was involved in a fight off duty at a bar which resulted in criminal charges and subsequently admission into PTI. Unfortunately, the corrections officer was found to be the aggressor. Upon his pension application the Board determined that his conduct affected his “honorable service “employment and as a result reduced his pension by 4%; 1 year reduction after24 years of honorable service. This case addresses the issue of whether that “misconduct” must take place in the course of employment or outside the course of employment. The Board found that, although the employee was allowed to participate in PTI, and his conduct did not entirely take place in the course of his employment, there would be a 4% reduction in his pension payments as a result of his “moral turpitude “and/or culpability in the conduct affecting his “honorable service”.

The court stated:

  1. Standard of Review:

“We begin our review with a discussion of the governing legal principles to give context to the Board’s decision, recognizing “[o]ur review of administrative agency action is limited.” Russo v. Bd. of Trs., Police & Firemen’s Ret. Sys., 206 N.J. 14, 27 (2011). Reviewing courts presume the validity of the “administrative agency’s exercise of its statutorily delegated responsibilities.” Lavezzi v. State, 219 N.J. 163, 171 (2014). For those reasons, we will not overturn an agency decision “unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.” Stein v. Dep’t of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div. 2019) (quoting J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017)). Nor will we overturn an agency decision merely because we would have come to a different conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). We are not, however, bound by the “agency’s interpretation of a statute or its determination of a strictly legal issue.” Richardson v. Bd. of Trs., Police & Firemen’s Ret. Sys., 192 N.J. 189, 196 (2007).

A public employee must provide “honorable service” to receive pension or retirement benefits. N.J.S.A. 43:1-3(a); N.J.A.C. 17:1-6.1(a); see Corvelli v. Bd. of Trs., Police & Firemen’s Ret. Sys., 130 N.J. 539, 550 (1992) (noting all of New Jersey’s public pension statutes have an implied requirement of honorable service, and forfeiture can be ordered for employees who violate that requirement). The Board is authorized to order forfeiture, in whole or in part, “for misconduct occurring during the member’s public service which renders the member’s service or part thereof dishonorable.” N.J.S.A. 43:1-3(b); N.J.A.C. 17:1-6.1(a), (c). Ordinarily, to require forfeiture of the portion of a member’s pension that accrued prior to the criminal activity, the Board must find that the misconduct was related to the member’s service. Masse v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 87 N.J. 252, 263 (1981). Nevertheless, forfeiture is not limited to misconduct resulting in a criminal conviction. Corvelli, 130 N.J. at 552. Rather, “[t]he term ‘honorable service’ . . . is sufficiently generic to encompass a broad range of misconduct bearing on the forfeiture decision, including but not limited to criminal conviction.” Ibid. Forfeiture of a public employee’s pension is governed by the factors enumerated by our Supreme Court in Uricoli v. Police & Firemen’s Retirement System, 91 N.J. 62, 77-78 (1982), and codified in N.J.S.A. 43:1-3(c):

(1) the member’s length of service; (2) the basis for retirement; (3) the extent to which the member’s pension has vested; (4) the duties of the particular member; (5) the member’s public employment history and record covered under the retirement system; (6) any other public employment or service; (7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated; (8) the relationship between the misconduct and the member’s public duties; (9) the quality of moral turpitude or the degree of guilt or culpability, including the member’s motives and reasons, personal gain and similar considerations; (10) the availability and adequacy of other penal sanctions; and (11) other personal circumstances relating to the member which bear upon the justness of forfeiture.


McLean was hired by the New Jersey Department of Corrections (DOC) as a corrections officer on April 22, 1989. On November 20, 2013, McLean was playing pool at the Perth Amboy Moose Lodge, while wearing an old set of DOC uniform pants. There, he and another patron, whom McLean had known for forty years, engaged in a verbal altercation. During their heated exchange, McLean pushed this patron. This individual then responded by coming toward McLean with a raised bar stool, so McLean punched him in the face with a closed fist, fracturing his orbital bone. Police arrived at the lodge in response to the incident, and when they approached McLean, he did not identify himself as a corrections officer. Police reports later identified McLean as the aggressor in the altercation and referred to video surveillance of the altercation.

The next day, McLean was informed by his supervising officer that the Perth Amboy Police Department had issued a warrant for his arrest. McLean turned himself in to the police department and was charged with one count of aggravated assault in the second degree, N.J.S.A. 2C:12-1(b)(1). He was charged administratively and, on November 25, 2013, he was suspended without pay. McLean’s pension contributions were remitted through November 30, 2013.

On August 6, 2014, McLean was permitted enrollment into the Pre-Trial Intervention Program (PTI). As a condition of PTI, McLean entered into a consent judgment in which he agreed to forfeit his employment with the DOC and any future position or employment in law enforcement in New Jersey. As such, his employment with the DOC terminated on August 6, 2014.

McLean filed an application for special retirement on August 25, 2014, at which time he had twenty-five years of PFRS service credit. In 2015, the Board agreed to postpone action on McLean’s request for special retirement. Also, in 2015, McLean’s criminal charges were dismissed as a result of his successful completion of PTI. Then, in October 2016, McLean appeared before the Board, requesting that he be allowed to receive his honorable service pension.

The Board reviewed the administrative charges filed against McLean and determined his last year of public service had been dishonorable. It emphasized that McLean’s misconduct demonstrated a high degree of moral turpitude and concluded there was a direct relationship between his charges and his duties as a senior corrections officer. Based on this, the Board invoked a four percent reduction in McLean’s special retirement benefit. The Board’s rationale for the four percent reduction was that McLean had one dishonorable year of his twenty-five years of service and the incident occurred during McLean’s final year of service.

In reaching its decision, the Board considered and balanced the Uricoli factors. The Board noted that although McLean was off-duty at the time of the assault in 2013, he was in uniform. McLean appealed, and the matter was transferred to the Office of Administrative Law for a hearing to determine whether the four percent forfeiture was justified. The ALJ affirmed the partial forfeiture decision of the Board on April 12, 2018. In doing so, the ALJ reviewed each of the Uricoli factors. The ALJ concluded factors (1), (5), (8), (9), and (10) weighed in favor of McLean, whereas factors (2), (3), (4), (6), and (11) had no positive or negative impact, and factor (7), the gravity or substantiality of the offense, weighed heavily against McLean.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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