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When a law signed on Jan. 7, 2002, gave prosecutors retirement benefits comparable to those for police and firefighters, it seemed to end the fight for pension parity. But three appeals to be argued this week belie any happy ending. “I don’t want to be in a worse position than I would be if the statute were never adopted,” says John Redden, an assistant Morris County prosecutor. “I can’t believe it was the legislators’ intent.” Prosecutors are challenging regulations the Division of Pensions and Benefits adopted last June to implement the law. They also contend that conflicts should have barred the attorney general and his Division of Law from advising the pensions agency on the rules. Prosecutors were once part of the Public Employees Retirement System, which covers most state employees and pays lower benefits than systems that cover police, fire and judicial personnel. The new law, P.L. 2001, c.366, boosts pensions for the roughly 900 lawyers who work in county prosecutors’ offices or the state Division of Criminal Justice by creating a Prosecutors Part of PERS. It allows them to retire after 25 years and collect 65 percent of their final salary, or after 20 years at half pay. Participation in the Prosecutors Part is mandated. Prosecutors who have held other public jobs or have a break in employment take issue with the new rules, in particular N.J.A.C. 17:2-8.5, which bars them from purchasing credit for time at other public jobs and applying it toward their Prosecutors Part account. The rules count those prior credits toward a PERS pension, splitting the value of their pension between two systems. The three appeals — Assistant Prosecutors Association v. PERS, A-6512-03; Ouslander v. PERS, A-6287-03; and Redden v. PERS, A-5941-03 — will be heard together on Wednesday in Trenton, N.J., by Judges Dennis Braithwaite, Joseph Lisa and Michael Winkelstein. The Assistant Prosecutors Association filed one of the three appeals. It argues in its brief that several prosecutors tried to buy credit for prior service, that they were quoted prices by the pensions division and that they paid all or part of the sum before being told it would not be credited to their Prosecutors Part account. Dolores Blackburn, a former Sussex County prosecutor and now a deputy attorney general, tried to buy Prosecutors Part credit for the five years she spent on the Sparta Township Council. Only after she paid the $54,216 requested by the agency was she notified she would not get the credit. Deputy Attorney General Jennifer Gottschalk, an association trustee, tried to buy credit for her 23 months as a prosecutor in Monmouth County and authorized paycheck deductions to cover the $8,612 cost. She stopped the deductions after being notified they would not go into the Prosecutors Part account. Prosecutors are especially rankled because they have no choice about being part of the new system and their payroll deductions have risen to 7.5 percent from the prior system’s 4 percent maximum. The association argues that if prosecutors are not allowed to buy credits, they should receive a hybrid pension based on a pro rata allocation of the time in the Prosecutors Part and in the PERS. In his separate appeal, Assistant Morris Prosecutor Redden contends that the rules leave him worse off because of a quirk of timing. Redden spent almost 18 years in the Essex County Prosecutor’s Office, where he rose to deputy first assistant prosecutor. He did a stint in the private sector before taking his current position on Feb. 1, 2002, a few weeks after the pension law was enacted. The enhanced pension was a major reason he took the job, he says. But on the day the law took effect, he was working for the township of West Orange in a job covered by PERS but not the Prosecutors Part. Under the regulations, only those employed as state or county prosecutors on the date of passage get Prosecutors Part credit for prior service. Redden is challenging that rule, as are three co-appellants — assistant prosecutors John McNamara Jr. and Charles O’Connell in Morris, N.J., and Carole Fitzgibbon in Essex, N.J. O’Connell started his job three days after Redden, and if the rules are upheld he will not get Prosecutors Part credit for his seven years as an assistant prosecutor and one year as a judicial clerk. Prosecutors also will be denied credit for time in the military, in out-of-state prosecutor jobs and in other government work that qualifies under PERS, says Redden. In his view, that thwarts the legislative intent to retain career prosecutors through increased pension benefits and flouts the principle that pension laws are to be liberally construed. The third appeal, filed by Deputy Attorney General Charles Ouslander, also alleges a conflict in the Attorney General’s Office. Ouslander argues in his brief that Attorney General Peter Harvey should be disqualified because he supervises the Division of Criminal Justice, whose employees are eligible for the enhanced pension, and the Division of Law, whose employees are not. Ouslander notes that Harvey has the power to transfer people between the divisions, thereby determining who gets to benefit from the enhanced pension. The brief claims that Harvey revealed his conflicted status in a July 29, 2003, office memo that said he is “not comfortable” that lawyers in the Division of Law are excluded from the enhanced pension, and he was preparing legislation to extend the benefit to them. No such legislation has been introduced. Even though Harvey thought the law was unfair to Division of Law employees, he allowed two of them, Deputy Attorneys General John Bender and David Dembe, to write opinion letters advising the pensions division on the law, Ouslander adds. “To permit the attorneys in DOL to interpret and implement regulations governing the enhanced pension scheme they will not benefit from clearly is a conflict of interest both factually and legally,” he wrote. Attorney General’s office spokesman John Hagerty did not return a call seeking comment on the appeals, but a brief filed by Harvey’s office on behalf of the Public Employees Retirement System denies any conflict, stating “RPC 1.7 does not apply to the Attorney General’s office in the same manner as it applies to the private bar,” and referring to the attorney general’s well-established dual role as an employer of the lawyers in his office and a legal adviser to state agencies. The “broad range of duties” allocated to the Attorney General by the Legislature and authorized by the New Jersey Constitution, “reflects the wide scope of matters” in which “the Attorney General may properly participate by virtue of his position both as a regulator in his own right and as a counsel and legal representative of the State,” says the brief. It also argues that the rules are a reasonable and “fiscally prudent” interpretation of the law and are entitled to deference from the court.

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