On Oct. 24, in a published opinion by Judge Heidi Currier, the Appellate Division considered whether a state employee enrolled in the Public Employees‘ Retirement System (PERS) who, prior to the effective date of her retirement, began the process for appointment to the Superior Court, violated NJAC 17:1–17.14(a)(2) which requires severance from public employment and PERS membership for 180 days prior to any further public employment in New Jersey.
Shortly after the effective date of her retirement on Dec. 1, 2021, Jill Mayer, a deputy attorney general in the Division of Criminal Justice of the Department of Law and Public Safety for over 25 years, was nominated by the governor to become a judge of the Superior Court.
However, before becoming a judge (Mayer has since withdrawn from consideration and accepted a private sector job), the Division of Pensions and Benefits in the Department of the Treasury notified Mayer that she could not receive retirement benefits under PERS because of the communications and planning that occurred regarding her appointment to the bench prior to her retirement and during the 180 days before “termination” of her public service. It appears from the opinion that Mayer wanted to retire and obtain a pension under PERS, particularly with its extra benefits for prosecutors to which she would have been entitled. Contributions for pension and health benefits would have been deducted from her salary as a judge if she were to enroll in the judicial pension. Mayer was acting prosecutor of Camden County at the end of her career with the Division of Criminal Justice.
The Appellate Division held that the PERS Board of Trustees, in sustaining the position of the Division of Pensions and Benefits, mistakenly interpreted and applied the regulation to planning and communications about a possible judgeship that occurred before the retirement date.
According to the Appellate Division, under the plain language of the regulation, Mayer did not have “a pre-arranged agreement” to return to state employment when she retired which would have precluded necessary severance from public service. Moreover the “unique process” to obtain a judgeship, with all the steps, evaluations and persons involved prevented “an ‘arrangement’ for“ the new position. Stated otherwise Mayer did not “arrange for reemployment prior to her retirement date,” and there was no “agreement” that the appellant would be offered the judgeship until, at the earliest, the date the Senate confirmed the nomination, which did not occur until January 2022 after she had retired. And because she still had not taken the oath of office as a Superior Court judge, considerably more than 180 days after she terminated her prior employment with the Department of Law and Public Safety, she did not violate the regulation and was entitled to become a judge without loss of her PERS pension. As a result, the administrative determination of the PERS Board of Trustees was reversed.
We agree with the determination of the issue before the court. However, there were legitimate concerns for the Bureau of Pensions and Benefits and PERS Board of Trustees in rendering their decisions . As explained by the court, to become an eligible pension for purposes of federal law, including the law of taxation, the New Jersey pension laws have to comply with federal requirements. According to the Appellate Division, granting a pension to Mayer would cause no problem in this regard. Moreover, in years past, prior to various amendments to our pension plans after the judiciary pension was created in 1973, when a member of PERS, such as a assistant or deputy attorney general enrolled in PERS became a judge, he or she received her PERS pension contributions returned when the former PERS member joined the judicial pension. As we understand it, PERS contributions for a person who enters the judicial pension system today do not receive the return of prior PERS contributions which are “rolled into” the judicial pension; as a result the system is premised on a single pension following public retirement. Ms. Mayer was an exception because most people become judges before age 60 (and some before eligibility for retirement under PERS) in order to obtain a judicial pension.
We believe in the need for a balanced judiciary, which includes judges from the private and public sector. Given the chief justice’s unique constitutional assignment power, which helps make New Jersey’s reputation for exceptional performance, based in part on the fact that a judge can be assigned to where he or she is deemed best able to serve. Assignment and presiding judges have the ability to utilize the experience of all judges with respect to assignments within their divisions and parts and have the benefit of judges with both a private and public background when assigning cases. The opinion of the Appellate Division in the Mayer case promotes the ability to appoint good, long-term and experienced attorneys in state and local government to the bench, and we believe that the judiciary benefits therefrom.