SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2698-16T3

IN THE MATTER OF

THOMAS J. EVANS

PUBLIC EMPLOYEES' RETIREMENT 

SYSTEM ENROLLMENT ELIGIBILITY.

_______________________________

Argued April 23, 2018 – Decided July 24, 2018

Before Judges Fasciale and Sumners.

On appeal from the New Jersey Department of 

Treasury, Division of Pensions and Benefits.

Michael A. Casale argued the cause for 

appellant Thomas J. Evans.

Nicholas L. DePaolo, Deputy Attorney General, 

argued the cause for respondent Board of 

Trustees, Public Employees' Retirement System

(Gurbir S. Grewal, Attorney General, attorney; 

Melissa H. Raksa, Assistant Attorney General, 

of counsel; Nicholas L. DePaolo, on the 

brief).

PER CURIAM

Thomas J. Evans, a Nutley Township (the Township) elected 

official, appeals the final agency decision of the Board of 

Trustees (Board), Public Employees' Retirement System (PERS), that 

he is ineligible to enroll in its pension system because he was 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2698-16T3

not enrolled – despite his request to a Township employee to do 

so – prior to a change in the law that prevented his enrollment. 

Evans contends that the error in not enrolling him should be 

rectified by the Board through the correction of error statute, 

N.J.S.A. 43:15A-54. Because the Board failed to address Evans'

argument that the error should be corrected, we remand.

We briefly summarize the essential facts in the record before 

the Board. Evans was elected as a Commissioner for the Township

in 2003, and has been continuously re-elected through the time 

period relevant to this appeal. With his election, he had the 

option to enroll in PERS under N.J.S.A. 43:15A-7 because he was 

not a military veteran.

1 Evans contended he exercised that option 

by asking the Township payroll clerk to enroll him. He further 

contended that, after noticing he had not received any information 

from PERS regarding his pension, he inquired with the payroll 

clerk, who reportedly claimed she would look into the situation. 

However, Evans later discovered that he had not been enrolled.

On two occasions in 2009, the Township electronically 

submitted Evans' application for PERS' enrollment; however, it was 

rejected because of reform legislation, Chapter 92, P.L. 2007. 

 

1 N.J.S.A. 43:15A-7 made it mandatory for PERS enrollment of an 

elected official who qualified as a military veteran.
3 A-2698-16T3

Under the new law, elected officials who had not been enrolled in 

PERS prior to July 1, 2007, were ineligible to enroll.

2 N.J.S.A. 

43:15A-7(d).

It was not until four years later that Evans followed up with

PERS by writing an October 24, 2013 letter to the agency detailing 

how the former payroll clerk had mistakenly failed to satisfy his 

request to enroll him in PERS. Two months later, the Acting 

Director, Divisions of Pensions and Benefits, wrote to a State 

assemblyman in response to his inquiry regarding Evans' 

eligibility to enroll in PERS; explaining that Evans was not 

eligible because he failed to enroll prior to the July 1, 2007 

effective date of the new law, which no longer allowed PERS 

enrollment "to any previously elected official who had not 

exercised his or her option to enroll in the [PERS] retirement 

system."

3

After corresponding with the Governor's Counsel and the Board 

Secretary, the Township's Attorney, on September 2, 2016, 

 

2 Moreover, the enrolled elected official had to be continuously 

elected and enrolled after July 1, 2007 to remain in PERS. 

N.J.S.A. 43:15A-7(d).

3 Under the new legislation, the Defined Contribution Retirement 

Program was created for eligible public officials who had not been 

enrolled in PERS prior to July 1, 2007, or if enrolled before that 

date, failed to maintain continuous membership thereafter. 

N.J.S.A. 43:15C-2.
4 A-2698-16T3

forwarded the Board Secretary affidavits from Evans and three 

other Township officials concerning Evans' efforts to enroll in 

PERS. No affidavit was submitted from the aforementioned payroll

clerk because she passed away in 2009. In Evans' affidavit, he 

requested that the Board consider correcting the Township's error 

in not enrolling him "consistent with the [Board's] authority 

established in the [c]orrection of [e]rrors [s]tatute, N.J.S.A. 

43:8A-21." The statute provides:

Any person who shall knowingly make any false 

statement or shall falsify or permit to be 

falsified any record or records of the pension 

fund in any attempt to defraud such pension 

fund as a result of such act shall be guilty 

of a misdemeanor and shall be punishable 

therefor under the laws of the State of New 

Jersey. Should any change or error in the 

records result in any member or person 

receiving from the pension fund more or less 

than he would have been entitled to receive 

had the records been correct, the board of 

trustees shall correct such error, and as far 

as practicable, shall adjust the payments in 

such manner that the actuarial equivalent of 

the benefit to which such member or 

beneficiary was correctly entitled shall be 

paid.

[N.J.S.A. 43:8A-21.]

At its meeting on September 21, the Board considered the 

affidavits, but determined that Evans was not eligible to enroll 

in PERS because no enrollment application was submitted for him. 

In the Board Secretary's September 22 letter to Evans summarizing 
5 A-2698-16T3

the Board's decision, there was no mention that the Board 

considered but rejected application of the correction of errors 

statute to enroll him into PERS. The Board's meeting minutes 

reflecting its decision also made no mention of the statute.

Evans appealed the Board's decision; contending the Board did 

not address whether he should be eligible to enroll under "the 

[c]orrection of [e]rrors [s]tatute, N.J.S.A. 43:8A-21" and 

requested a hearing before the Office of Administrative Law (OAL). 

The Board, finding the appeal was solely a question of law, 

declined to transmit the matter to the OAL as a contested hearing, 

and denied the appeal for the same reasons expressed in the minutes 

of the September 21 Board meeting and in the Board Secretary's 

September 22 letter. Again, there was no consideration of 

enrolling Evans into PERS retroactively based upon a correction

of the payroll clerk's alleged error.

Before us, Evans contends that the Board should have enrolled 

him nun pro tunc because even though the pension reform legislation 

that makes it ineligible for him to enroll in PERS after July 1, 

2007, a different correction of errors statute, N.J.S.A. 43:15A54, should have been applied to alleviate the payroll clerk's 

failure to enroll him three years before the effective date of the 

pension reform. Evans no longer relies upon N.J.S.A. 43:8A-21 as 
6 A-2698-16T3

a basis to gain enrollment in PERS as he previously did before the 

Board. N.J.S.A. 43:15A-54 provides:

If any change or error results in an employee 

or beneficiary receiving from the retirement 

system more or less than he would have been 

entitled to receive, then on discovery of the 

error, the retirement system shall correct it 

and, so far as practicable, adjust the 

payments in such a manner that the actuarial 

equivalent of the benefit to which he was 

correctly entitled shall be paid.

The application of any member for prior 

service credit or credit for all previous 

service shall be approved if the employer, for 

whom the service was rendered stipulates, in 

writing, to the retirement system that the 

information necessary for the award of such 

credit was not presented to the employee and 

agrees to make the necessary additional 

contribution to the contingent reserve fund 

and the employee makes the required 

contributions, if any.

[N.J.S.A. 43:15A-54.]

Evans cites the long-standing decision in Burkhart v. Pub. 

Emps. Ret. Sys., State, Dep't of Treasury, 158 N.J. Super. 414,

421 (App. Div. 1978), which involved the calculation of the 

petitioners' costs to purchase credit for missed time of PERS 

enrollment, where this court held "N.J.S.A. 43:15A-54 was adopted 

. . . as a provision for the correction of errors, both as to the 

amount of pension benefits and the inclusion of members erroneously 

excluded by prior oversights." He further relies upon Cavalieri 

v. Bd. of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 539 
7 A-2698-16T3

(App. Div. 2004) (quoting Burkhart, 158 N.J. at 423), where we 

ruled that "[t]he statute 'should be liberally construed and 

administered in favor of the persons intended to be benefited 

thereby.'" 

Our role in reviewing the decision of an administrative agency 

is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We accord 

a strong presumption of reasonableness to an agency's exercise of 

its statutorily delegated responsibility, City of Newark v. Nat. 

Res. Council, 82 N.J. 530, 539 (1980), and defer to its fact 

finding, Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We 

will not upset the determination of an administrative agency absent 

a showing that it was arbitrary, capricious, or unreasonable; that 

it lacked fair support in the evidence; or that it violated 

legislative policies. Lavezzi v. State, 219 N.J. 163, 171 (2014); 

Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Here, we are unable to determine whether the Board violated 

its legislative policies because it failed to address Evans' 

contention that the payroll clerk's error – which is seemingly 

accepted by the Board given its focus on the conclusion that no 

enrollment application for Evans was submitted and that there was 

no disputed fact requiring a contested hearing – in not enrolling 

him into PERS should be corrected retroactively by the Board. We 

are mindful that Evans now cites N.J.S.A. 43:15A-54 and its 
8 A-2698-16T3

interpretation in Burkhart, and not N.J.S.A. 43:8A-21 as he did 

before the Board. Nevertheless, Evans made the Board fully aware 

that he was seeking relief under a correction of error theory. In 

fact, after the Board's initial rejection of his request to be 

enrolled in PERS, he appealed to the Board arguing that the Board 

failed to "dispute" his argument that the payroll clerk's error 

should be corrected under N.J.S.A. 43:8A-21 to effectuate his 

enrollment. The Board is obligated to interpret and apply statutes

under its purview; it should have considered the applicability of 

N.J.S.A. 43:8A-21, as well as N.J.S.A. 43:15A-54 given the factual 

circumstances presented by Evans' enrollment request.

Accordingly, we are constrained to remand this matter to the 

Board to fully consider and state its conclusions regarding these 

legal issues. We leave it to the Board's discretion to allow any 

additional legal arguments to be raised. Of course, we take no 

position as to whether Evans is entitled to enrollment in PERS 

under either correction of error statute discussed herein.

Reversed and remanded. We do not retain jurisdiction.