SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2698
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IN THE MATTER OF THOMAS J. EVANS P UBLIC EMPLOYEES' RETIREMENT SYSTEM ENROLLMENT ELIGIBILITY .

__________________________ _____ Argued April 23, 2018

– Decided July 24, 2018 Before Judges Fasciale and Sumners. On appeal from t he 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 res pondent Board of Trustees, Public Employees' Retirement System ( Gurbir S. Grewal , Attorney General , a ttorney; Melissa H. Raksa, Assistant Attorney General, of counsel ; Ni cholas L. DePaolo, on the brief ) . PER CURIAM Thomas J. Evan s , 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, Public Employees' Retirement System (PERS ) , that he is ineligible to enroll in it s pension system because he was NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
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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 . W ith his election , he had the option to enroll in PERS under N.J.S.A. 43:15A
- 7 because he wa s not a military veteran . 1 Evans contend ed he exercised that option by ask in g the Township payroll clerk to enroll him. He further
contend ed that , after noticing he had no t 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 i n 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
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Under the new l aw , elected officials who had not been enrolled in PERS prior to July 1, 2007, were i neligible to enroll . 2 N.J.S.A.
43:15A
- 7(d ). It was not until four year s later that Evans followed up with PERS by writing a n October 24, 2013 letter to the agency detail ing
how the former payroll clerk had mistake nly failed to satisfy his request to enroll him in PERS . Two months later, t he Acting Director , Divisions of Pensions and Benefits, wrote to a State assemblyman in response to his inquiry regarding Evans' eligibility to enroll in PERS ; explain ing th at 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 off icials who had not been enrolled in PERS prior to July 1, 2007, or if enrolled before that date, failed to maintain continuous membership ther e after . N.J.S.A. 43:15 C - 2 .4 A - 2698
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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. I n Evans' affidavit , he request ed that the Board consider correcting the Township's error in not enrolling him "consistent with the [Board's] authority establis hed 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 fun d 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 whi ch such member or beneficiary was correctly entitled shall be paid. [N.J.S.A. 43:8A
- 21 . ]
A t 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 summarizing5 A - 2698
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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 ; contend ing 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 t he Office of Administrative Law (OAL) . T he Board , finding the appeal was solely a question of law, declined to transmit the matter to the OAL a s a contested h earing , and denied the appeal for the same rea so ns 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 correcti on of the payroll clerk's alleged error.

B efore us, Evans conten ds that the Board should have enrolled him nun pro tunc because even though the pension reform legislation that makes it ineli gible for him to enroll in PERS after July 1,
2007 , a different correction of errors statute , N.J.S.A. 43:15A
54 , 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
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a basis to gain enrollment in PERS as he previously di d 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 sys tem 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 p revious 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 neces sary 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. Su per. 414 , 4 2 1 (App. Div. 1978) , which involv ed the calculation of the petitioner s ' cost s 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 , 5 397 A - 2698
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(App. Div. 2004) (quoting Burkhart , 158 N.J. at 423 ) , where we ruled that "[t]he statute ' should be liberally cons trued and administered in favor of the persons intended to be benefited thereby. ' " Our role in reviewing the decision of an administrativ e 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 evide nce; 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 requir ing 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 its8 A - 2698
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interpretation in Burkhart , and not N.J.S.A. 43:8A
- 21 as he did
before the Board . Nevertheless, Evans made th e 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 , h e appeal ed to the Board argu ing 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, w e 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.