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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–2159–12T4

    Decided: April 14, 2014

Before Judges Reisner and Carroll.James Haspel, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel;  Danielle P. Schimmel, Assistant Attorney General, on the brief).

James Haspel appeals from a December 11, 2012 final decision by the Board of Trustees of the Police and Firemen's Retirement System (the “Board” or “PFRS”) denying his request to appeal the forfeiture of his pension benefits as untimely, and because his pension contributions had already been withdrawn from the pension system.   We affirm the Board's decision, in reliance upon its statement of reasons, with the following brief comments.

On or about January 1, 1985, the Borough of Madison employed Haspel as a police officer.   Thereafter he became a member of the PFRS. On May 10, 2010, the New Jersey State Police arrested Haspel and charged him with official misconduct, attempted endangering the welfare of a child, and attempted showing of obscenity to a child under age eighteen, all second-degree crimes.   On August 23, 2011, he pled guilty to one count of attempted solicitation of distribution of child pornography.   Pursuant to a plea agreement, Haspel was sentenced on December 16, 2011 to six years imprisonment.   Additionally, he was required to forfeit his employment with the Madison Police Department, not seek public employment in the future, and register under Megan's Law.

On August 31, 2011, Haspel applied for PFRS retirement benefits, effective September 1, 2011.   In his brief, he states that he resigned from his position as a police officer, and his resignation was accepted by the municipality.   He further states that he “hired an attorney to investigate, evaluate and pursue, as appropriate, [his] pension opportunities shortly after [he] resigned his employment.”   According to Haspel, he thereafter had no further contact with the retained attorney.

The record reflects that on September 28, 2011, Haspel executed a power of attorney (POA), granting his wife full authority “to do any and all acts in connection with my affairs ․ that I could do if I were personally present, intending hereby to give my said attorney the fullest and broadest powers․”  Specifically, Haspel conferred upon his wife the authority:

[t]o make and prosecute applications for, and receive payments that may be due to me by and from Social Security, Medicare, Blue Cross and Blue Shield, major medical, any pension or profit sharing plan in which I may be a participant or have any interest whatsoever, and all other like benefits, including employment and disability benefits, to which I may be entitled.

The POA further authorized his wife to “commence, prosecute or enforce, or to defend, answer or oppose, actions, or other legal proceedings,” and to “employ any lawyer, accountant or other agent required for the performance of [her] duties.”   Finally, the POA concluded by evincing Haspel's “intent that this power of attorney shall not be affected by my disability or mental or physical incapacity.”

Consistent with N.J.A.C. 17:1–6.2, the Board delayed processing Haspel's retirement application until his criminal charges had been fully adjudicated.   The Board then conducted a hearing on the application on February 13, 2012, attended by Haspel's attorney, William H. Claxton, Esq., and Haspel's wife.   On February 15, 2012, the Board issued a six-page written decision, verifying that it had voted to forfeit Haspel's entire pension, after applying the factors enumerated in N.J.S.A. 43:1–3c (requiring the Board to balance eleven factors when determining whether “forfeiture or partial forfeiture of earned service credit or earned pension or retirement benefits is appropriate”).

The February 15, 2012 written decision, addressed to Claxton, further advised:

However, Mr. Haspel is eligible to withdraw his accumulated pension contributions remitted during his active membership․  Nonetheless, you and Mr. Haspel are cautioned against filing the withdrawal application if you or he intends to appeal the Board's determination.   Withdrawal terminates all rights and privileges of membership.

As to the ensuing events, we adopt the following findings of fact contained in the Board's December 11, 2012 final decision, which are undisputed:

At its meeting of February 13, 2012, the PFRS Board reviewed the criminal charges related to your guilty plea and eventual incarceration.   At the time of the Board's decision, Mr. Claxton[ ] appeared before the Board with Mrs. Haspel.   The Board rendered a decision of total forfeiture of PFRS service and salary credit as a result of your criminal misconduct.   The Board's decisional letter addressed to Mr. Claxton indicated that if he disagreed with the decision of the Board, he may file an appeal within [forty-five] days from the date of the written determination.

By letter dated February 24, 2012, Mr. Claxton advised Mrs. Haspel of the following pertinent information:

Since the above referenced meeting, we discussed your options on several occasions.   I faxed you a copy of Wendy Jamison's letter to me dated February 15, 2012 along with enclosures.   We had several conversations after that and I wrote you a letter dated February 20, 2011 outlining Mr. Haspel's options of appealing the decision and requesting an ALJ be assigned.   In our conversations I indicated to you that once a decision was made and the forms are filed to withdraw the accumulated pension contributions, that terminates all rights and privileges of membership and you will not have the option of appealing the Board's decision․  Again, I would like to emphasize that you have [forty-five] days (by March 31, 2012[) ] from the date of the letter to appeal the decision if that is the course you and Mr. Haspel want to take.   You indicated that it was not and Mr. Haspel planned on withdrawing the accumulated pension contributions.   After you review this matter with Mr. Haspel, please call me immediately as time is of the essence on a decision.

On March 3, 2012, Mr. Claxton wrote to Mrs. Haspel again stating:

․ Additionally, if it is planned to appeal the PFRS Board Decision contained in Mrs. Jamison's letter of March 15, 2012, the appeal has to be submitted by MARCH 31, 201[2].   Since time is of the essence, please advise via signed letter by March 8, 2012, your and Mr. Haspel's decision relating to the appeal.

By copy of letter dated March 7, 2012, Mr. Claxton provided Secretary Jamison with the following information:

Upon my receipt of your letter dated February 15, 2012, and decision of the Police and Fireman's Retirement System Board of Trustees' dated February 13, 2012, I forwarded same to Mrs. Haspel.   We have since discussed the various options on numerous occasions.   Mrs. Haspel advises that she is unable to take the withdrawal papers to Mr. Haspel for his signature and wishes to sign for him under her General Durable Power of Attorney.   She also indicated she had discussed the matter with her husband on several occasions, and it is their joint desire to withdraw the pension contributions․

Finally, by letter to the Secretary Jamison on March 23, 2012, Mr. Claxton wrote the following:

Yesterday Mrs. James Haspel advised that she and her husband have decided to withdraw Mr. Haspel's accumulated pension contributions during his active membership.   She mailed you the application for withdrawal along with a copy of the General Durable Power of Attorney.   Mr. and Mrs. Haspel are well aware that filing the withdrawal application terminates all rights and privileges of membership.   They do not intend to appeal the Board's determination of February 13, 2012 as outlined in your letter of February 15, 2012.   I have discussed this matter with Mrs. Haspel on several occasions and corresponded with her on several occasions and both Mr. and Mrs. Haspel are well aware of the decision that they have made.

Accordingly, the Division of Pensions and Benefits processed the Application for withdrawal and disbursed the contributions to you in care of [Mrs.] Haspel on April 9, 2012, in the amount of $103,164.04.

Based upon these factual findings, the Board concluded that Haspel's October 3, 2012 appeal from its February 13, 2012 determination was untimely.   The Board noted that Haspel was represented by an attorney during the entire time that the Board considered the application, and that Haspel was advised, through counsel, that he had a forty-five day period within which to appeal.   Further, since Haspel chose not to appeal but rather to withdraw his pension contributions, he thereby terminated his rights to any further retirement benefits.   This appeal followed.

Established precedents guide our task on appeal.   Appellate review of an administrative agency decision is limited.   See In re Herrmann, 192 N.J. 19, 27 (2007).   The burden is on Haspel in his appeal to demonstrate grounds for reversal.  McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App.Div.2002);  see also Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App.Div.1993) (holding that “[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant”), certif. denied, 135 N.J. 469 (1994).

“Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are ‘arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.’ ”   N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384–85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980)) (alteration in original).   Under the arbitrary, capricious and unreasonable standard, the reviewing court is guided by three major inquiries:  (l) whether the agency's decision conforms with relevant law;  (2) whether the decision is supported by substantial credible evidence in the record;  and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion.  In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, the reviewing court accords substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's “ ‘expertise and superior knowledge of a particular field.’ ”  Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).   A reviewing court should not substitute its own judgment for the agency's even though it might have reached a different conclusion.   Stallworth, supra, 208 N.J. at 194;  see also In re Taylor, 158 N.J. 644, 656 (1999) (discussing the narrow appellate standard of review for administrative matters).   The well-established standards of deference to agency expertise have routinely been applied to final agency decisions in pension matters.   See, e.g., Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 224 (2009);  Gerba v. Bd. of Trs., Pub. Employees' Ret. Sys., 83 N.J. 174, 189 (1980).

Guided by these principles, we find no abuse of discretion in the Board's decision.   On appeal, Haspel argues that he was never furnished written notice of the Board's February 13, 2012 decision, informing him of the appeal process.   However, as the Board correctly noted, Haspel had retained counsel, who attended the hearing and was notified of the Board's decision.   The meeting was also attended by Haspel's wife, to whom he had given a sweeping power of attorney that specifically authorized her to handle Haspel's pension affairs.

Haspel further argues, without supporting documentation, that he became mentally incapacitated for a period while incarcerated, thereby tolling his time period to appeal.   In Bumbaco v. Board of Trustees, Public Employees' Retirement System, 325 N.J.Super.   90 (App.Div.1999), certif. denied, 163 N.J. 75 (2000), we considered the standard for incapacity, and concluded that it embraces “at the least ․ a combination of physical and emotional burdens reasonably preventing the retiree from taking the required action.”  Id. at 96–97.   Here, as the Board correctly argues, Haspel has not provided any competent medical evidence to support his claim that he was mentally incapacitated.   Moreover, while he argues in his reply brief that his POA was not a durable one as defined by N.J.S.A. 46:2B–8.2b, that claim is clearly belied by the POA's express intent that it “shall not be affected by [Haspel's] disability or mental or physical incapacity.”

Based on our review of the record and the controlling legal principles, we conclude that the Board appropriately determined that Haspel's request to appeal, dated October 3, 2012, was time-barred.   A request for a hearing was not filed within forty-five days after the Board's February 15, 2012 written decision.  N.J.A.C. 17:1.3(b).  We further conclude that Haspel's remaining arguments raised on appeal are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).



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