In this matter, the court considered whether an employee in the Public Employees' Retirement System (PERS) who submits an application for retirement benefits and thereafter, prior to the effective retirement date, begins the process to attain a nomination for a Superior Court judgeship, has violated N.J.A.C. 17:1-17.14(a)(2), which requires a person collecting PERS retirement benefits to complete 180 days severance from their employment prior to any further public employment in New Jersey. Specifically, under the regulation, if the retiree has a "pre-arranged agreement for reemployment" prior to their effective retirement date, the retiree has not satisfied the severance of employment requirement. N.J.A.C. 17:1-17.14(a)(2)(v).
Appellant was nominated by the governor for a Superior Court judgeship and confirmed by the Senate in the weeks after her retirement date. Prior to taking the judicial oath, the Division of Pensions and Benefits (Division) advised appellant there was no complete termination of the employment relationship because of the "pre-planning that occurred prior to [her] December 1, 2021 retirement and during the 180 days after [her] retirement." The PERS Board (Board) affirmed the decision.
After a careful review, the court determined that the Board mistakenly applied the regulation to these specific circumstances. The regulation prohibits a "pre-arranged agreement," not "pre-planning" that may occur prior to a retirement date. The nature of the judicial selection process precludes any ability to make an "arrangement" for the position as an individual seeking a judgeship has no control over the process. There also was no "agreement" that appellant would be offered the judgeship until, at the earliest, the date the Senate confirmed the nomination, which did not occur until after her retirement date.
To date, appellant has not taken the judicial oath, and considerably more than 180 days have passed since she terminated her prior employment. Therefore, the court found appellant did not violate N.J.A.C. 17:1-17.14(a)(2). Appellant is entitled to accept the judgeship by taking the judicial oath of office without foregoing her PERS pension and benefits. The court reverses the Board's final administrative decision.