SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2324-17T2

JEFFREY W. DESIMONE,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, 

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

_____________________________

Submitted May 1, 2019 – Decided May 15, 2019 

Before Judges Currier and Mayer.

On appeal from the Board of Trustees of the Police and 

Firemen's Retirement System, Department of the 

Treasury, PFRS No. 3-52748.

Kenneth T. Palmer, attorney for appellant.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Jeffrey D. Padgett, Deputy 

Attorney General, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Petitioner Jeffrey W. DeSimone appeals from a December 12, 2017 final 

administrative determination issued by respondent Board of Trustees of the 

Police and Firemen's Retirement System (Board), denying his application for 

deferred retirement pension benefits. The Board denied DeSimone's benefits

because he was terminated from his employment as a police officer with the 

Township of Brick (Township) for conduct unbecoming a public employee and 

other reasons. We affirm.

After having been employed for thirteen years as a Township police 

officer,1 DeSimone was terminated from his position based on charges of 

misconduct or delinquency in accordance with N.J.S.A. 43:16A-11.2. 

DeSimone was unsuccessful in challenging his termination and seeking 

reinstatement to the police department. 

After he was terminated, DeSimone claimed he spoke to an analyst at the 

Division of Pensions and Benefits (pension board). DeSimone alleged the 

analyst explained his pension was secure because he was not involved in any

criminal conduct. The analyst sent documents to DeSimone, confirming his 

 

1

 DeSimone had other service credits giving him just short of fifteen years in 

the pension system.
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pension contributions were reallocated to the deferred retirement pension plan. 

According to DeSimone, he relied on the information provided by the pension 

board analyst and decided to leave his contributions in the pension fund rather 

than investing the money elsewhere. DeSimone also claimed he spoke to 

various pension board personnel and checked the pension benefit website over 

the years to confirm his pension status.2 

On March 11, 2017, DeSimone submitted an application requesting his 

deferred retirement pension benefits. In response, the Township sent documents 

to the Board, explaining DeSimone's dismissal from the police department. In 

August 2017, the Board denied the application for deferred retirement pension 

benefits. The Board held DeSimone was terminated for cause by the Township 

and was thus ineligible for deferred retirement pension benefits in accordance 

with N.J.S.A. 43:16A-11.2. 

DeSimone appealed the Board's denial and requested an administrative 

hearing before the Office of Administrative Law (OAL). The Board did not 

 

2

 DeSimone supports his pension status with a self-serving September 15, 2017 

letter to the Board. However, DeSimone submitted no certification or affidavit 

declaring the information contained in the letter was based on competent or 

admissible evidence. See R. 1:6-6 (requiring "facts not appearing of record or 

not judicially noticeable, the court may hear it on affidavits made on personal 

knowledge, setting forth only facts which are admissible in evidence to which 

the affiant is competent to testify").
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refer the matter to the OAL because there were no issues of disputed fact

requiring a hearing. 

On December 12, 2017, the Board issued a final administrative 

determination, finding DeSimone ineligible for deferred retirement pension 

benefits. Relying on N.J.S.A. 43:16A-11.2, the Board held "[r]emoval for cause 

on charges of misconduct or delinquency automatically disqualifie[d] 

[DeSimone] from eligibility for a [d]eferred retirement." The Board advised 

DeSimone that he was entitled to the return of his accumulated pension 

contributions. 

On appeal, DeSimone claims the Board was equitably estopped from 

denying deferred retirement pension benefits based on the information from the 

pension board that he was eligible for such benefits.

Our review of an administrative agency action is limited due to the 

"'expertise and superior knowledge' of an agency in its specialized field." 

Francois v. Bd. of Trs., 415 N.J. Super. 335, 347 (App. Div. 2010) (quoting 

Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223 (2009)). 

We will uphold an agency's decision "unless there is a clear showing that it is 

arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." 
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Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)

(quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

The doctrine of equitable estoppel applies in situations where "one may, 

by voluntary conduct, be precluded from taking a course of action that would 

work injustice and wrong to one who with good reason and in good faith has 

relied upon such conduct." Summer Cottagers' Ass'n of Cape May v. City of 

Cape May, 19 N.J. 493, 503-04 (1955). However, "equitable estoppel is rarely 

invoked against the government . . . ." Bridgewater-Raritan Educ. Ass'n v. Bd. 

of Educ., 221 N.J. 349, 364 (2015) (quoting In re Johnson, 215 N.J. 366, 386 

(2013)). In the limited circumstances where the doctrine has been applied in a 

pension case, the petitioner "demonstrated detrimental reliance on express 

assurances of employment qualification or pension credit either by their 

employer[] or pension board[]." Welsh v. Bd. of Trs., Police & Firemen's Ret. 

Sys., 443 N.J. Super. 367, 379 (App. Div. 2016). 

Here, the doctrine of equitable estoppel cannot be invoked by DeSimone 

since he failed to prove detrimental reliance. At best, DeSimone claims he was 

provided information by the pension board regarding deferred retirement 

pension benefits after his termination. However, he lacks any competent

evidence of his communications with the pension board. Nor does the record 
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indicate the pension board was aware of the basis for DeSimone's departure from 

the police department. Absent knowledge of the reason for DeSimone's 

termination, the information provided by the pension board was accurate. 

DeSimone knew he was dismissed for misconduct or delinquency under N.J.S.A. 

43:16A-11.2, negating any good faith basis for his reliance on information from 

the pension board. 

Further, DeSimone's reliance on periodic inquiries directed to the pension 

board and pension website confirming his pension status is unavailing. The 

computer-generated pension information is a ministerial clerical task completed

without any legal analysis of whether DeSimone was disqualified from receipt 

of pension benefits for any reason. The pension board did not engage in conduct 

amounting to any misrepresentation because the pension board was unaware 

DeSimone lost his job for conduct unbecoming a public employee until after 

DeSimone applied for deferred retirement pension benefits.

Having reviewed the record, the Board's decision denying DeSimone's 

deferred retirement benefits was not arbitrary or capricious. 

Affirmed.