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The basic premise of this site is that the state and county governments of New Jersey do not honor their commitments, even commitments in writing, if they think it benefits them not to, and they think no one is watching.

On this page we look at the State of New Jersey, Public Employees Retirement System (PERS) which, through its failure to abide by its own regulations and the laws of this State, has been discriminating illegally against numerous individuals employed by various state and local government entities. And the honor and gratitude of Veteran's Preference - means nothing to PERS.

The story about how some Federally funded career employees in New Jersey have been excluded from the PERS supposedly goes as follows:

In 1985 the State decided that there was a group of State and local government employees who were not participating in the pension system who should be - those career staff members paid with funds from the Federal Jobs Training Partnership Act program (JTPA) to administer the training and temporary summer employment programs for the economically disadvantaged population.  When they required that those career employees become members of PERS and make their mandatory contributions to the system, there was a woman working in the Camden County Employment and Training Office who was in her 60's and didn't feel she wanted to contribute for the few remaining years she would be employed. Rumor has it that she happened to play cards with a group of women which included the wife of then State Senator, Dan Dalton. She complained to Senator Dalton's wife and he sponsored legislation excluding JTPA funded employees from the PERS.

His legislation, which originally made membership in PERS optional for JTPA funded employees passed, with some modifications, after first being conditionally vetoed by then Governor Tom Kean. Note that Governor Tom Kean's statement was, "This bill is designed to ensure that JTPA employees will not be terminated because employers must use their limited financial resources for pension contributions, rather than for salaries." In his introduction to his recommended amendments (which is NOT law) he states that, "The effect of these amendments will be to exempt all JPTA employees in this State from membership in the PERS." He wanted ALL JTPA employees excluded, rather than given an option to participate, on the pretense that having to contribute to the PERS would cause the employers to immediately lay off administrative staff. After receiving and reviewing the Governor's recommendation, the Legislature passed the statute with the wording of his amendments that excluded, not all, but only TEMPORARY JTPA employees. Since there were many temporary employees hired to implement the short term Summer Youth programs every Summer for a period of 8 to 10 weeks, this refining of the final statute wording, excluding only temporary JTPA funded employees, rather than all JTPA employees, appears to demonstrate a wider understanding of how the program operates and seems to make better sense.

So what went wrong?

The people this law was designed to protect from losing their jobs are now 60+ years of age and they have no pension.

I say pretense because of three things -

1. The funding included capped set-asides for administrative expenses and pension contributions were an allowable expense under the Federal Office of Management and Budget Circular A-95; and

2. the State and many recipients of JTPA funds simply ignored the 1986 requirement to report their JTPA staff to PERS and remove them from the PERS enrollment - at least 47 County staff members were still enrolled in PERS in 1994. The contention that layoffs would occur was bogus. The state-wide JTPA director's organization (GSETA) reported were no layoffs by any of those recipients as a direct result of their continued contributions to PERS or into private retirement plans. It should be noted that 6 of the County JTPA employers enrolled a total of least 219 employees in private plans through institutional entities such as Mutual of America, Copeland, Aetna, CNA and Great West using JTPA funds. In all, almost 65% of public entity JTPA staff were enrolled in either PERS or a private plan, using JTPA funds, following the exclusion from participation in PERS.

3. This restriction applied only to the public entities which were receiving the funding. Those private, not-for-profit, agencies which received the funds and ran the programs in many of the counties and municipalities were not required to halt pension or annuity contributions for their administrative staff, paid for with the JTPA funding. Almost 79% of private non-profit JTPA funded agency employees were enrolled in Aetna, Continental Assurance and Connecticut General - CIGNA plans.

In all, within a few short years of the passage of this law, at least 428 of 621 reported JTPA funded employees (68.9%) were enrolled in some form of pension plan with contributions charged to the program funds. The State enrolled all of its JTPA funded employees in PERS as a matter of course. It appears that if the department heads couldn't protect their career employees in one way, they followed the spirit of the law (stay out of PERS), but not the intent (don't spend money on pensions.)

This is a prime example of a poorly thought out legislative decision in an attempt to help a single constituent which then had incredibly negative impact on many others when the Board of Trustees of PERS abdicated its responsibility and allowed clerical staff in their office to misconstrue the mangled statute.

On the Salem County page we will examine how Salem County Freeholders, all the while promising to "do the right thing", selectively ignore their commitments and treat their career employees, some of whom also happen to be veterans.

Please note that there are links in the text below which lead you to pertinent documents. Use your Back button to return to this page. A complete list of all documents is on the Links page.

By way of background:

After graduation from High School and a year in college, in 1966 I joined the US Navy and left active duty in 1970, receiving an Honorable Discharge in 1972. I completed my undergraduate education in 1972 and on December 23, 1974 I was hired by the County of Salem, New Jersey, in a position funded under the Comprehensive Employment and Training Act Program (CETA) as a Teacher in the Salem County adolescent drug rehabilitation program. (At that time, no one mentioned the fact that as a veteran my enrollment in PERS was mandatory despite the fact that they knew I was an eligible veteran.) When the drug program closed, I continued my employment with Salem County in the administration of the CETA program, eventually becoming the Director of the Salem County Office of Employment and Training. With the phase out of CETA in 1983 and the implementation of the Job Training Partnership Act Program (JTPA) I continued in my position as Director of the Office of Employment and Training, administering the JTPA program. When the JTPA program was replaced with the Workforce Investment Act Program (WIA) in 2000, the County of Salem decided to restructure the administrative function and issued layoff notices to me and my remaining eight staff members. By that time, I had worked continuously for Salem County for more than 25 years.

On December 21, 1998, the Board of Trustees of the New Jersey Public Employees Retirement System (PERS) sent a letter advising my Deputy Director that the Salem County JTPA staff would be allowed to purchase pension credit for all of their prior service to Salem County. They correctly based their decision on the provisions of the New Jersey Administrative Code and the New Jersey Statutes (date of permanent appointment or after one year of continuous service and the service resulted, without interruption, in a permanent appointment with the same employer.) Because of that letter, I opted to retire from the County, purchase all of my prior service (including my military service time), and take my pension early. Although retiring at age 53 with almost 30 years of government service credit in the PERS would mean a percentage reduction in my pension amount, I opted to take the penalty instead of taking the alternate employment offered (as an Assistant Prosecutor with a more than $20,000 annual reduction in salary) at the time of my layoff.

In June 2000 I applied to PERS for early retirement on the basis of years of service and, in complete reliance on their December 21, 1998 letter, I also applied to purchase all of my prior service. I submitted my retirement to the County of Salem effective June 30, 2000 and left my employment. In August 2000 I received notification from the PERS that I could buy back some, but not all, of my service time with the County of Salem. After several months of communicating back and forth with the Secretary of the PERS Board of Trustees (the Board), I finally received approval to purchase all of my prior service time. In February 2001 I traveled to the PERS office in Trenton and presented them with a certified check for $93,533.76, the figure they had quoted as my buy back amount. After about a ninety minute wait while they processed my purchase, the clerk came back with my check and advised me that I was ineligible for any pension. I sought and received an appointment to appeal their staff determination to the Board and, with my then attorney, did so at their March 21, 2001 meeting. The Board requested that we file more information regarding my employment and circumstances which we did. We met with them again on April 18, 2001. The Board made an arbitrary decision at the April 2001 meeting and issued a Final Administrative Determination on May 17, 2001 that I was eligible to purchase approximately 19 years of my County Service and all of my military service but not six and one-half years (in the middle) of my County service. This loss of eligibility for those 6½ years of service meant that I was not eligible for retirement at age 53 on years of service retirement and would have to wait until I was age 60 to start collecting any pension.

We appealed that determination of the Board to the Superior Court of New Jersey, Appellate Division, and on June 24, 2002, in an unpublished opinion, the Appellate Division ordered the Board to explain how they determined that a veteran with 25½ years of continuous service was ineligible, especially in light of the fact that they had originally told me I was eligible to purchase the service. Following receipt of this opinion, on August 21, 2002 we again met with the Board and rather than follow the order of the Appellate Division, the Board simply reaffirmed their earlier decision. (It should be noted that the Deputy Attorney General who advised the Board had not even read the Appellate Decision and had to borrow my copy to review at the time of the meeting.) We filed an interlocutory appeal which was denied and on September 19, 2002 the Board issued another Final Administrative Determination.

Another appeal to the Superior Court of New Jersey followed and this time, in a published opinion, on February 9, 2004 the Appellate Division, (not the same panel of judges who issued the first opinion) without even acknowledging the first Appellate Decision, affirmed the determination of the Board. I filed a petition for certification to the NJ Supreme Court and retained new counsel for the appeal. The Supreme Court declined to consider the appeal in May 2004.

The "legal justification" for the Board’s decision is based on a clause in NJSA 43:15A-7 Public Employees' Retirement System, established, membership, in subsection (h), which is in direct conflict with subsection (b).

Subsection (h) states that "A temporary employee who is employed under the federal Job Training Partnership Act, Pub.L. 97-300 (29 U.S.C. s.1501) shall not be eligible for membership in the system..." (emphasis added)

while Subsection (b) mandates membership in PERS for "Any person becoming an employee of the State or other employer after January 2, 1955 and every veteran, other than a retired member who returns to service pursuant to subsection b. of section 27 of P.L. 1966, c. 217 (C. 43:15A-57.2) and other than those whose appointments are seasonal, becoming an employee of the State or other employer after such date, including a temporary employee with at least one year's continuous service..." (emphasis added).

The problem arises in the conflicts of these two provisions and the varying interpretations given by the Attorney General’s staff in their capacity as counsel to the Board as well as the definitions of the Appellate Division in it’s second opinion on this matter.

There are two cases, which we continually brought to the attention of the PERS Board of Trustees and their counsel, dealing directly with this issue - Vliet v. Bd. Trustees Pub. Emp. Retire. Syst., 156 N.J. Super. 83 (1978) and Gladden v. Pub. Emp. Ret. Sys., 171 N.J. Super. 363, 371 (App. Div. 1979).

In Vliet, John A. McGarrity, then Assistant Director of the Division of Pensions, testified that "... an employee in a non-Civil Service unit may be classified as a "temporary" for no more than one year for pension purposes. At the beginning of the second continuous year of employment he is deemed a permanent employee for pension purposes. See N.J.A.C. 17:2-2.4(c) which provides that an employee whose compulsory enrollment date is not fixed by sections (a) and (b) * * * may be considered a temporary employee by his employer for as long as a one-year period following the employee's date of hire, but if his employment continues into his second year, his compulsory enrollment date will be the first of the month following the completion [Page 87] of the equivalent of a working test period of four months within the second year of employment.[fn1]" Vliet, p. 86,87. (emphasis added).

In Gladden, the Court stated that "... For all veteran employees appointed after January 2, 1955, enrollment is mandatory." p. 372 and "...Twenty years of service to the State Legislature is neither temporary nor seasonal." p. 374. (emphasis added).

My case to the Board has always been that as a veteran, even if I was a temporary employee, I was required to be enrolled after one year of continuous service (which the County of Salem failed to do) since at that time I was "deemed permanent for pension purposes" (Vliet) and that after more than 25 years of continuous service it is hard to conceive of such employment as "temporary" (Gladden). The Board’s position is that the statute dealing with the "temporary employees" under the JTPA section (h) trumps both the veteran status and the length of continuous employment status. Part of what is obfuscating the issue is the application of the term "temporary" by both the Attorney General and the Court.

During my second appearance before the Board of Trustees I was advised that I would have to wait until I was 60 years of age to apply for my pension. As I approached my 60th birthday in 2007, on February 9, 2007 I requested another quote for the purchase of service. When I didn't get any response in several months, on May 1, 2007 I sent a second request. Two days later I received a reply stating it had been sent to someone else who would respond. When the response finally came dated June 20, 2007, it again contained incorrect information but did note that they were aware of the February 2004 Appellate Court decision. I responded to that letter on July 27, 2007 and requested another hearing before the Board.

On September 19, 2007, after sitting for almost 6 hours waiting to be heard, I went before the Board again. Since there were new members on the Board I attempted to give them a little background but was consistently silenced by one Board member who refused to allow the new Board members the benefit of the history of the matter. I attempted to get an explanation as to how my allowable time had shrunk from almost 20 years of County service to slightly less than 12 years. The same Board member (their "actuary") got frustrated when I asked them to explain the math based on the numerous quotes I had received. He claimed he couldn't "follow [my] math..." It was simple - subtract one three digit number from another three digit number and get an answer; but apparently being late in the day without lunch made this a monumental task.

Again, I was refused the opportunity to purchase, this time on the grounds that I hadn't told them about the February 2004 decision and that I had failed to contribute within the allotted time. (Note that they already knew about the February 2004 decision as indicated in their June 20, 2007 letter.) They also refused to allow any discussion on their original decision from December 21, 1998 allowing all of the purchase. I was advised that since I still hadn't exhausted my 10 years of eligibility to re-enroll, if I got another government job covered by the PERS then I could contribute and buy back some of my time.

Yeah, right, you already lied to me once in 1998 by telling me I could purchase all my time and you lied to me a second time in 2003 by telling me I could wait until I was 60 and buy back some of my time... Fool me once, shame on you. Fool me twice, shame on me. You don't get a third shot.

Following my September 19, 2007 appearance before the Board I received a letter dated September 24, 2007 stating that the Board had given "careful consideration" to my request. This was absolutely incorrect as I pointed out to them in my response dated November 5, 2007.  I received one more response from PERS, dated November 16, 2007 "understanding my frustration" and incorrectly stating that certain issues were previously decided by the Courts. I sent a response to that letter on February 21, 2008.

Does "all" really mean all or just "some"

Throughout the proceedings in this matter, the Attorney General and the Court have consistently used the terms "temporary" and "all" interchangeably in referring to JTPA funded positions as being ineligible for enrollment. The briefs of the Attorney General are full of instances where they have interchangeably used the two terms. In the published opinion on my case, Lewis v. Board of Trustees, 366 N.J. Super. 411 (2004), at the top of page 419 the Court states, "In this instance, we have the considerable benefit of the comments made by Governor Kean regarding the intent of subsection (h). In returning to the Senate a bill containing a narrower exclusion of JTPA temporary employees,... urging passage of a bill that would exclude all JTPA temporary employees from PERS" (emphasis in original) and, one page later, at the top of 420 they state, "The product of Governor Kean's recommendation was the enactment of subsection (h), which imposes no limitations in its exclusion of all JTPA employees from PERS membership." (emphasis in original) Note that the term "temporary" does not appear in this part of the decision.

Where I believe my rights have been violated is in the inequitable application of the law by the PERS Board of Trustees. While I (and other members of my staff and many other JTPA staff members around the State) have been either refused membership entirely or in part, the State of New Jersey, Department of Labor, has allowed all of its staff paid with JTPA funds to be members. Also, several of the other County JTPA administrative entities have been allowed to enroll their staffs and some have actually retired and are drawing their pensions from PERS. Add to that the fact that all JTPA funded staff at the other departments of the State involved in administering portions of the program (Health, Education and Higher Education particularly) as well as all other JTPA funded staff at the local Welfare Boards, Vocational Schools and Community Colleges are permitted to enroll as members of PERS and you have an appalling misapplication of the law.

If I am correct in my interpretation of the statutory and case law scheme, then I must be allowed to purchase all of my service time to the County of Salem. By extension, all of the similarly situated JTPA funded employees, veteran and non-veteran alike, in other County-based offices of Employment and Training must also be permitted to join PERS. If, on the other hand, the Appellate Division, Superior Court of New Jersey is correct in its interpretation, ie - "the exclusion of all JTPA employees from PERS membership" - then all of the other PERS members who were paid with JTPA funds and employed by the various governmental entities around the state, including veterans, must be excluded from the system and either their contributions returned to the government entity or, for those who are now drawing pensions, the "member" must reimburse the pension fund for those retirement payments they have received illegally.

What is "temporary"? 4 months? 25 years?

It should be noted, as I pointed out every time to the Board, every JTPA funded entity in New Jersey did have temporary employees. Each Summer, the JTPA program funded a Summer Youth Employment and Training Program (SYETP). The SYETP hired college students to be "counselors" to oversee a short term (eight weeks) program to employ disadvantaged youth. Many thousands of those disadvantaged youth participants were hired across the State to work in public and private nonprofit agencies for a period of eight weeks. The "counselors" (who were on the administrative staff of the JTPA funded offices) usually worked from June through September to handle the ramping up and down of the intense SYETP activities. Those students, summer employees and "counselors" were truly "temporary JTPA employees."

(How about we close down all the roads leading to your home for a 12 block radius and tell you you must park your car outside that area and walk home every day? It's only going to be a "temporary" inconvenience - we'll reopen the access to your home in 25 years...)

In conclusion

Aside from just the disillusionment of being told, in writing, that Board action had determined that I would be permitted to purchase all of my time (1998 and thereafter basing some profoundly life altering decisions on their commitment) and then, after the fact, being told that I could variously purchase none of my service to the County (2000), then some of my service (2000), then all of my service (2001) then none of my service (2001) then some of my service (2003) and then again none of my service (2007) I have also experienced the following losses directly attributable to the actions of the State in its denial of my purchase of service and pension:

I have been denied more than ten years of pension payments since I retired, worth approximately $220,000.00;

I have expended close to $40,000 in legal fees;

I gave up the opportunity to take other employment within Salem County which would have kept me in the PERS system (and actually allowed me to retire with an extra three years of credit without cost during a voluntary separation program for state employees, which I would have been as an Assistant Prosecutor);

I have been denied my supplemental compensation on retirement (SCOR) by the County since they claimed I must be in the pension system to receive that separation benefit ($15,000 maximum, for which I am otherwise fully eligible, having surrendered approximately 170 unused "sick days", worth over $25,000.00, when I retired); and,

I have lost my health insurance coverage, worth approximately $158,000.00 to date, (guaranteed by the County collective bargaining agreement on retirement at any age with 25 years of service) due to the County having switched, almost two years after my retirement, from a self-insured program to the NJ State Health Benefits Program which requires retirees to be members of the PERS. The County’s position is: since PERS determined I wasn’t eligible for those 6 ½ years of purchase of service, then I only worked for the County for 19 years and therefore I don’t have 25 ½ years of service!

I am seeking assistance in resolving this matter since it affects not only me, but hundreds of other veterans and non-veterans who are residents of New Jersey - career government employees, who either must be permitted membership if they are not presently members, or excluded from membership if they are presently members, if the law is to be equitably applied. It should be noted here that the inequity continues to the present time since the JTPA exclusion has been applied by regulation to the Workforce Investment Act (WIA) by reference. See N.J.A.C.17:2-2.3 Ineligible persons. The social implications include the areas of veterans’ preference and benefits, employment security and the maintenance of committed, professional and loyal career employees in government service, the sanctity of the written word and the reliance on such commitments on the part of the government by citizens making decisions having a profound impact on their future.

I have attempted to contact Mary Williams Walsh, a reporter for the New York Times which has published several exposes on the NJ pension system (no response) and to receive assistance from the ACLU (they declined to help), the US Veterans Administration (they could not provide any assistance) and the NJ Department of Military Affairs (they didn't even bother to reply), all to no avail.

I have copies of all pertinent documents, briefs, letters, etc., up to but excluding the final briefs filed in the Supreme Court appeal (which I have tried unsuccessfully to obtain from my prior counsel).

I appreciate your time and attention and hope that I have been able to adequately convey the impact and implications which give this matter such importance in holding New Jersey’s governmental agencies accountable in their responsibility to our citizens.

I look forward to hearing from you. You can contact me at my e-mail address: gplewis@gphiliplewis.com.