FULL REQUEST FOR 2 MINUTES OF REBUTTAL SHOULD IT PROVE APPROPRIATE. CHIEF JUSTICE
RABNER: I'M SORRY AMICUS DOESN'T GET REBUTTAL. RAYMOND M. BALDINO: THE ISSUES
THAT WE'RE HERE AS AMICUS ON BEHALF OF TO ADD GRES PRETTY DISCREET AND NARROW BUT WE VIEW
THEM AS IMPORTANT BECAUSE THERE WAS THIS WHOLE ANALYSIS AS THE COURT WAS DISCUSSING
REGARDING PRIMARY VERSUS SECONDARY ULTRA VIRES DOCTRINE WHICH WASN'T ADDRESSED BELOW AND
WHICH WE THINK MAKES A VERY IMPORTANT AND DECISIVE DIFFERENCE HERE AND BEFORE EVEN
GETTING INTO IT BECAUSE THERE WAS SO MUCH COLLOQUY ON THIS IN THE PRIOR ARGUMENT, I JUST
THINK IT IS WORTH ADDRESSING THAT IT SEEMS CLEAR FROM MY REVIEW OF THE RECORD THAT THERE WAS
A REASONABLY DEBATABLE STATUTE HERE AND WE KNOW THAT BECAUSE OF THE AGENCY BELOW PROMISED
OF THE PETITIONER THAT HE WOULD RECEIVE THIS FREE HEALTH INSURANCE AND IT APPEARS THAT
THE ISSUE AS IT WAS PRESENTED BELOW AND AS DISCUSSED ON THE RECORD WAS WHETHER THIS
SERVICE COULD BE OF IN THE TERMINOLOGY FRONT LOADED, WHETHER AFTER THE PURCHASE IT COULD
BE AWARDED NONE PRO TONGUE AND BE CONSIDERED SERVICE THAT WAS RENDERED PRY TO THAT 2011
CUT OFF DATE. CHIEF JUSTICE RABNER: ARE YOU TELLING US THE JULY 27TH K 2015
LET MAKE THE LANGUAGE THE STATUTE REASONABLY DEBATABLE? RAYMOND M. BALDINO:
THE JULY 15TH. CHIEF JUSTICE RABNER: LETTER FROM THE DIVISION OF PENSIONS
AND BENEFITS? BAM BALANCE WHAT I'M SAYING THE STATUTE DISCUSSES THE REQUIREMENT THAT
THE PERSON HAVE CREDITABLE SERVICE ISN'T THE TERMINOLOGY PRIOR TO THE ENACTMENT OF CHAPTER
78 BAG BA A. RAYMOND M. BALDINO: LET'S FOCUS ON THAT THE STATUTE AGAIN.
RAYMOND M. BALDINO: THE LATH WITCH IS NOT CLEAR, IT SDVEN ADDRESS HOW A
PURCHASE OF SERVICE CREDIT WOULD BE ADDRESSED IN THAT SITUATION AND I HAVEN'T SEEN IN THE
ARGUMENTS OF THE STATE ANYTHING TO ADDRESS THAT LEGAL ISSUE, THERE WAS A FOOTNOTE IN THEIR
SUPPLEMENTAL BRIEF WHICH DISCUSSED ISSUES THAT I DON'T REALLY BELIEVE ON POINT SUCH AS
HOW SIR VS CREDIT IS CALCULATED AT THE TIME IT WAS MADE OR WHETHER PURCHASE OF SERVICE
KRETD DID IT COULD BE DONE AFTER RETIREMENT. BUT IN TERMS OF WHETHER THE PURCHASE OF
SERVICE CREDIT COULD BE CONSIDERED NONE PRO TUNC OR AS DISCUSSED IN THE RECORD AS THE
AGENCY APPARENTLY DISCUSSED IT WHEN IT PROMISED THIS TO MR. MEYERS WAS WHETHER IT TO BE
FRONT LOADED OR CONSIDERED CREDITED PRIOR TO 2011 BECAUSE THE ACTUAL SERVICE WAS PERFORMED
PRIOR TO 2011. CHIEF JUSTICE RABNER: YOUR SEVERS THE SECOND TIME NOW TO
THE AGENCY MAKING A PROMISE, THAT'S TO THE COMPUTER GENERATED LETTER THAT WENT OUT.
RAYMOND M. BALDINO: I BELIEVE THERE WERE OTHER PROMISES DISCUSSED IN THE LETTER
THAT THE STATE ADVISED MR. MEYERS THAT HE WOULD RECEIVE FREE HEALTH BENEFITS.
CHIEF JUSTICE RABNER: WE HAVE THE LETTER. I WAS JUST ASKING, THIS IS ONLY THING THAT
YUR RELYING ON WHEN YOU REFER TO THE AGENCY HAVING MADE A DETERMINATION THAT HE WAS
ELIGIBLE? RAYMOND M. BALDINO: I CAN'T SPEAK TO WHETHER THAT WAS THE ONLY
THING I RELY ON, I RECALL THERE WAS DISCUSSION THAT MR. MEYERS HAD RECEIVED THOSE PROMISES
CERTAINLY FROM HIS H R DEPARTMENT AND FROM THE AGENCY. CHIEF JUSTICE RABNER:
FAIR ENOUGH. SO THE STATUTE APPEARS TO IMPOSE A BLANKET RULE. IT DOES NOT SIGH THERE ARE
NOR EXCEPTIONS OR ANYTHING LOIK THAT BUT THE PLAIN LANGUAGE OF THE STATUTE HE HAVE TWOJ
D B 3, HOW IS THAT UNCLEAR? (28D(B)(3)). RAYMOND M. BALDINO: I BELIEVE
IT'S REASONABLY DEBATABLE AS TO YOU HOW A PURCHASE OF SERVICE KRETD DID IT WOULD BE
TREATED BECAUSE IT TALKS ABOUT THE REQUIREMENT THAT THE PERSON HAVE 20-YEAR OF CREDITABLE
SERVICE AS OF THE ENACTMENT OF THE ACT WHICH IN 2011, GRANTED IT'S UNDERSTOOD THAT THIS
PURCHASE COULD NOT HAVE BEEN DONE UNTIL 2013 WHEN IT WAS PERMITTED UNDER THE LAW. BUT
IT WAS AT LEAST AMBIGUOUS AND REASONABLY DEBATABLE TO THE POINT WHERE THE MISTAKE WAS
ACTUALLY MADE, NOT JUST AS TO MR. MEYERS, BUT SEVERAL OTHER STATE TROOPERS AND I THINK
THAT GETS INTO THE WHOLE POINT ABOUT PRIMARY VERSUS SECONDARY JURISDICTION WHICH IS THAT
IN ALL OF THESE CASES, YOU'RE TALKING ABOUT A SITUATION WHERE THE AGENCY APPARENTLY
VIOLATED A STATUTORY REQUIREMENT MUCH THAT'S THE PREMISE. IF WE'RE TAUBLGING ABOUT EQUITABLE
ESTOPPEL AND WHETHER IT'S SECONDARY VERSUS PRIMARY JURISDICTION, EVERY ONE OF THOSE
CASES INVOLVED A SITUATION WHERE THE AGENCY DIDN'T FOLLOW THE STATUTORY REQUIREMENT AND
YET THE MEMBER, THE BENEFICIARY WAS ULTIMATELY EN TIGHTED AT EQUITY TO RECEIVE THE BENEFIT
BECAUSE OF THE EQUITIES OF THE SITUATION BECAUSE THEY HAD BEEN INDUCED TO RELY ON THE
AGENCY'S PROMISES BECAUSE THEY HAD BEEN HAFRMD BY THEM. JUSTICE NORIEGA: IS
THERE A VIOLATION HERE THAT YOU'RE ALLEGING IN THE STATUTE. RAYMOND M. BALDINO:
WAS WE'RE IN THE EQUITABLE ESTOPPEL BOX AND WE'RE TALKING ABOUT PRIMARY VERSUS SECONDARY,
WE'RE TALKING ABOUT A ZIGS WHERE THE STATUTE APPARENTLY DIDN'T PERMIT THIS. NOW, I DON'T
KNOW IF THAT'S TRUE, THERE WASN'T ENOUGH REALLY DISCUSSED ABOUT THE PURCHASE OF SERVICE
RED DID IT ISSUE AND HOW IT SHOULD BE TREATED. BUT GOING TO THE EQUITABLE HE IS STEP
PEL ISSUE, EVERY ONE OF THOSE CASE INVOLVED A SITUATION WHERE THE AGENCY DID TO THE FOLLOW
A STATUTE AND THE QUESTION WAS DID THEY EXCEED THEIR AUTHORITY IN A MANNER THAT WAS WHOLLY
OUTSIDE OF THEIR JURISDICTION, MEANING IT WAS, WAS 8 PRIMARY ULTRA VIRES OR WAS IT SECONDARY
ULTRA VIRES AND THE DISTINCTION IS NOT ALWAYS SO EASY TO DRAW, BUT I THINK WHAT IT REALLY
GOES TO IS OF WHETHER, I MEAN, FIRST OF ALL, ONE OF THE FIRST THINGS THAT'S LOOK AT IS
WHETHER THERE WAS A REASON BELOW DEBATABLE INTERPRETATION OF THE STATUTE ON THE PART OF
THE AGENCY. AND AGAIN WE WOULD SUBMIT THAT IT WAS REASONABLY DEBATABLE HERE BECAUSE YOU
COULD ARGUE AND IT APPEARS THAT THAT WAS WHAT, THE WAY IT WAS VIEWED, THAT THE SERVICE
COULD BE FRONT LOADED OR TREATED AS AWARDED NONE PRO TUNC BECAUSE THE SERVICE HAD BEEN
PERFORMED, THE MILITARY SERVICE WAS PERFORMED PRIOR TO 2011. BUT EVEN IN
CASES I WOULD SUBMIT WHERE THE STATUTE CLEARLY COULD THOT HAVE PERMITTED THE PRN TO BE
ELIGIBLE, MEANING THERE WAS NO WAY, IT WASN'T EVEN REASONABLY DEBATABLE, THERE HAS STILL
BEEN AN EXTENSION OF HE CAN WLT. SO A GOOD EXAMPLE WOULD BE THE JULY YAN NO, SIR CASE
WE SITED IN OUR PAPERS T HAD A POLICE CHIEF THAT WAS HIRED OVER THE MAXIMUM AGE LIMIT
AND THERE WAS NO WAY, THERE WAS NOTHING THAT CHIEF COULD HAVE DONE TO RENDER THEMSELVES
ELIGIBLE UNDER THE STATUTE. BUT PTD THE EQUITIES, IT WAS CONSIDERED, MAYBE THEY WERE
1 YEAR OVER THE MAXIMUM AGE LIMIT, IT WAS TO FORFEIT THEIR POSITION BECAUSE OF A MISTAKE
OF THEIR EMPLOYER WHICH THE EMPLOYER WAS REALLY SUPPOSED TO BE THE ONE TO BE LOOKING OUT
FOR THAT, UNFAIR TO PENALIZE THE PERSON WHO WAS HIRED UCHT THE PREMISE THAT THEIR EMPLOYER
SATISFIED ALL THE LEGAL REQUIREMENTS R. ANOTHER GOOD EXAMPLE IS THE KNOLL
LAN CASE WHICH WE CITE. I THINK THE A VERY INTERESTING IF YOU LOOK CLOSELY AT THAT CASE,
WHILE THE LAW DOES, WHILE THE CASE DOES DISCUSS THE ISSUE OF ANALYZING THERE WAS SOME
55 DISABILITY PENSIONS THAT WERE BEING REVIEWED AS TO WHETHER THEY HAD BEEN LAWFULLY A
WARRED AND I THINK THERE WAS A CONNECTION TO CORRUPTION, BUT THE ACTUAL PENSION APPLIED
FOR THE BENEFITS IN GOOD FAITH NL BELIEVE THEY WERE EN TIGHT TO THE THEM AND THEY WERE
RECEIVING THEIR PENSIONS ANYWHERE FROM 2 TO 27 YEARS OUT. AND THE COURT SAID BEFORE YOU
EVEN GET INTO WHETHER THE DISABILITY PENSION IS, WAS AWARDED UNDER A REASONABLY DEBATABLE
PREMISE, FIRST LOOK AT WHETHER IT WAS, IT WOULD BE EQUITABLE TO EVEN REOPEN THEIR CASE.
OF. SO SOMETIMES THE EQUITY EVEN TRUMPS OF WHETHER THE STATUTE IS CLEAR OR
NOT. ALTHOUGH AGAIN, I THINK THE STATUTE WAS AT LEAST AMBIGUOUS HERE. AND
THEN AGAIN GOING BACK TO THESE CASES, QUITE SIMPLY, IN WOOD AND MIDDLETOWN ARE THE TWO
MOST RELEVANT ONES BECAUSE THEY ALSO INVOLVE PURCHASES OF SERVICE CREDIT AND THEY ALSO
VESSEL QUESTIONS OF FREE HEALTH BENEFITS AND RETIREMENT AND THE STATE ARGUES WHAT
DISTINGUISHES THOSE CASES IS THAT ALL OF THOSE PEOPLE COULD HAVE REMAINED IN SERVICE, THEY
COULD HAVE COMPLETED 25 YEARS OF SERVICE, THAT WAS THE REQUIREMENT THAT THE TOWN HAD T
FOLLOW IN ORDER TO GRANT THEM FREE HAEJT INSURANCE. AND THEY DIDN'T. AND HERE SHTHS
MR. MEYERS, THERE'S NO WAY, THERE'S NOTHING, THERE WAS NOTHING IN HIS POWER HE COULD HAVE
DONE TO SATISFY THE ELIGIBILITY CRITERIA, BUT I DON'T THINK THAT'S ACTUALLY WHAT THE LAW
SAYS. I DON'T THINK IT WAS WHAT THEIR A NAL VIS RESTED ON IN WOOD AND MIDDLETOWN. WE KNOW
THAT FROM A NUMBER OF OTHER CASES THAT LOOK AT THIS ANALYSIS. THE TWO I JUST MEPGED WERE
THE CASES, ALSO THE ORIGINAL CASE THAT STARTS IT ALL, THE CASE CITED) WHETHER A SALE
SHOULD BE INVAL DALTED IN ORDER FAILURE TO SATISFY THE MANDATORY NOTICE REQUIREMENTS.
SO CLEARLY IT GOES BEYOND SIMPLY WHETHER THE PERSON COULD HAVE BEEN ELIGIBLE
OR NOT, IT GOES TO, THIS IS THIS ASPECT OF THE ANALYSIS IN A GOVERNMENTAL EQUITABLE CASE
THAT ANALYZES THE GOVERNMENTS AKS, IT'S NOT ABOUT THE RECIPIENT OF BENEFITS SO MUCH AS
IT IS WHETHER THIS SUCH AN EXTREME OR SUCH A WHOLLY OUTSIDE OF THE POWERS OF THE AGENCY
EXERCISE OF POWER AS TO BE IMPOSSIBLE TO PERMIT HE CAN QUIT WERE THE AS A FORM OF RELIEF
OR MORE IN THE VEIN OF A TECHNICAL VIOLATION, WHETHER THE HARM TO THE STATE INTEREST IS
SLIGHT AND THE HARM TO THE PERSON WHO HAS BEEN INHE CAN BLEE REDUCED TO RELY WOULD BE
MUCH GREATER. AND I WOULD SUBMIT WE DO HAVE A HARM HERE. MR. MEYERS, HE MADE A PURCHASE
USING $94,000 OF SAVINGS, HE LEFT A JOB THEY APPARENTLY LOVED, IT WAS HIS DREAM JOB, IT
WAS WHAT HE ALWAYS WANTED TO DO WITH HIS LIFE. HE RETIRED EARLY. NONE OF THAT WOULD
HAVE HAPPENED IF HE HAD IN THE BEEN TOLD HE WOULD HAVE RECEIVED FREE HEALTH INSURANCE AT
RETIREMENT. JUSTICE PATTERSON: HOW CAN YOU MAKE THAT REPRESENTATION.
RAYMOND M. BALDINO: THAT'S WHAT THE ALJ FOUND BELOW. THE ALJ AK SEF THE
THE TESTIMONY OF MR. OF MEYERS. JUSTICE WAINER APTER: AND THEY SPECIFICALLY
REVERSED THAT FACTUAL FINDING? RAYMOND M. BALDINO: YES, I UNDERSTAND THAT
THERE'S THIS TROUBLING ANALYSIS THAT WENT ON OF SECOND GUESSING THE ALJ'S FINDINGS, MOSTLY
BASED ON MR. MEYERS' DOING BETTER FOR HICHLS AFTER RETIREMENT WHICH I WOULD RESPECTFULLY
SUBMIT IS A MISPLACED FOCUS THAT, YOU KNOW, WHETHER MR. MEYERS AFTER HE WAS WRONGLY TOLD
IF HE PURCHASED HIS SERVICE FOR $94,000 WOULD RECEIVE HEALTH INSURANCE, IF HE WALKED OUT
AFTER RETIREMENT AND HE COLLECTED A WINNING LOTTERY TICKET OR SOME OTHER GOOD IF YOU
REMEMBER CHILDREN BEFELL HIM. JUSTICE WAINER APTER: SPECIFICALLY WHEN IT
COMES TO THE SHBC, THEY FOUND I UNDERSTOOD THAT THE ALJ FACTUAL FINDINGS WERE NOT PROERTED
BOY SUFFICIENT COMPETENT AND CREDIBLE EVIDENCE IN THE RECORD AND WERE UNREASONABLE AND
YOU'RE SAYING THAT WAS DISTURBING, I'M NOT SURE WHY, ISN'T THAT THE ROLE OF THE AGENCY,
THE SIECH HAS THE KRED DIBLT DETERMINATION AND THE FACT WUM FINDING OF THE ALJ IF THEY'RE
NOT SUPPORTED BY SUFFICIENT COMPETENT AND CREDIBLE EVIDENCE IN THE RECORD THEN THEY BE
DISREGARD THEM. ARE YOU SAYING THAT THE STANDARD OF REVIEW SHOULD SOMEHOW BE DIFFERENT?
WHAT IS THE FACT DISAGREEMENT? RAYMOND M. BALDINO: NO, I'M NOT ARGUING
AGAINST THE STAND DASHED OF REVIEW, BUT SUGGESTING THAT THE FOCUS IN THE EQUITABLE
ESTOPPEL ANALYSIS WAS REASONABLY WRONG FOR FOCUSING ON THE WRONG TYPE OF HARM DONE BY,
TO THE RESEP YENT. THE HARM HERE WAS THE INDUCEMENT TO PURCHASE FOR $94,000 WHICH I
THINK WAS -- JUSTICE WAINER APTER: HE NEEDED TO PURCHASE THAT THOSE CREDIT
IN ORDER TO RETIRE 4 YEARS EARL AND HE WAS ABLE TO RETIRE 4 YEARS EARLY AND HE DID GET
THE LARGE $7,000 A MONTH RETIREMENT PAYMENT PLUS HE HAD ALREADY BEEN WORKING FOR THIS
FIREARMS MANUFACTURER BEFORE HE RETIRE AT A LARGE SALARY AND SO THAT CONTINUED AFTERWARDS,
ALL AS PART OF A PLAN. SO HE NEEDED TO BUY THE SERVICE CREDITS, NOT TO GET
THE HEALTH BENEFITS BUT TO BE ABLE TO RETIRE 4 YEARS EARLY WHICH HE WAS ABLE TO DO, CORRECT
YES. RAYMOND M. BALDINO: THAT'S ABSOLUTELY CORRECT, THAT HE PURCHASED THE
SERVICE CREDITS TO RETIRE EARLY, RETIRING EARLY ON THE PREMISE THAT HE WOULD DO SO RECEIVING
FREE HEALTH INSURANCE. JUSTICE WAINER APTER: I THINK JUSTICE PATTERSON'S
QUESTION WAS THE EVIDENCE IN THE RECORD HE RETIRED EARLY TO BE ABLE TO COLLECT THIS 7
THOUSAND A DOLLAR RETIREMENT BENEFIT AFTER THAT, IEVENLG IT WAS 65 PERCENT OF THIS PREVIOUS
PAY PLUS A LARGE SALARY FROM A FIREARM MANUFACTURER THEY ALREADY HAD JOB WITH BEFORE
HE RETIRED, WHERE IS THE EVIDENCE THAT HE ONLY RETIRED EARLY IN ORDER TO GET FREE #45E89TH
BENEFITS AND THAT THE $800 A MONTH WAS REALLY THE OPENLY ISSUE RATHER THAN THE $7,000 A MONTH
RETIERM BENEFIT? HE. RAYMOND M. BALDINO: SO WHAT I'M SAYING IS MR. MEYERS'
TESTIMONY BEFORE THE ALJ WAS ACCEPTED THAT HE DID -- JUSTICE WAINER APTER:
IT WASN'T AK CEMENTED, THE AGE SO SAID IT WAS NOT ACCEPTING THOSE FACTUAL FINDINGS AND
THAT INTED IT FOUND THERE WAS NO SUFFICIENT EVIDENCE TO SUPPORT THEM AND IT WAS THEREFORE
FINDING THAT THEY WERE UNREASONABLE. RAYMOND M. BALDINO: YES, YOUR HONOR,
MY UNDERSTAND OF THE RECORD AND IF I'M WRONG, THEN, YOU KNOW, I'M DOING MY BEST WITH MY
MEMORY BUT THE ALJ THEN SENT IT TO THE HEALTH COMMISSION WHO REYOU ARE VIEW IT AND REVERTS
THE THE ALJ'S FINDING BUT THE ALJ ACCEPTED THAT THIS RELIANCE DID OCCUR AND THE REASON
FOR THE EARLY RETOORL AND SPUR OF SIR VS CREDITS WAS BECAUSE OF THIS PROMISE OF FREE HAELT
AND INSURANCE AND ON THE WISE MR. MEYERS WOULD HAVE STAYED AT HIS EMPLOYMENT P THAT MEANS
HE WOULDN'T HAVE MADE THE $94,000 PURCHASE WHICH WAS A LOT. THAT WAS I BELIEVE FROM HIS
TESTIMONY WAS A LOT OF HIS SAVINGS, MOEFT OF HIS SAVINGS. ALSO, HE DID STAY LONGER AND
RECEIVE A BETTER RETIREMENT BENEFIT WHICH HE WOULD HAVE. SO THAT AK
CEMENTING THE ROAR AS IT IS AND THE FINDINGS OF THE FACT BY THE ALJ -- JUSTICE
WAINER APTER: JURY SAYING WE HAVE TO FIENT FAK AS FOUND BY THE ALJ NOT FOUND AS THE AGENCY
EVEN THOUGH THE AGENCY SPECIFICALLY HELD THAT THE ALJ'S FACTUAL FINDINGS WERE NOT SUPPORTED
BY SUBSTANTIAL CREDIBLE EVIDENCE AND THEREFORE HAD TO BE DISREGARDED? RAYMOND
M. BALDINO: WELL, ONE OF THE THINGS THAT THE AGENCY ALSO SAID WAS THAT THERE HAD BEEN NO
INTENTIONAL MISREPRESENTATION, AND THAT'S EQUITABLE ESTOPPEL IS NOT LIMITED TO A
SITUATIONS WHERE AN AGENCY INTENTIONALLY MISREPRESENTS THE SITUATION. THAT WOULD BE
FAR TOO NARROW AND SO REVIEW, IN TERMS OF REVOWING THE AGENCY DECISION THAT WOULD BE DONE
UNDER THE ARBITRARY AND CAPRICIOUS STANDARD SHTHS WE HAVEN'T GOTTEN T THAT POINT YET BECAUSE
THE APPELLATE DIVISION HAS HELD THAT NO EQUITABLE ESTOPPEL ANALYSIS CAN APPLY AT ALL.
BUT I, FROM MY REVIEW, I BELIEVE THE AGENCY GOT IT WRONG, YES, ESPECIALLY
CONSIDERING THEY HELD INTENTIONAL MISREPRESENTATION WAS REQUIRED AND IN
COUNTING HIS POST RETIREMENT EMPLOYMENT AGAINST HIM, I DON'T BELIEVE AS A LEGAL MATTER
THAT WOULD BE CORRECT BECAUSE WHAT WAS UNDISPUTED WAS PAYING OVER THE 94 THOUSAND DOMS
WHICH IS A LOT OF MONEY, ESPECIALLY FOR MR. MIRE, LEAVING A JOB EARLY THAT HE OTHERWISE
ACCEPTED IN THE TESTIMONY BY THE ALJ, HE WOULD NOT HAVE DONE SO OTHERWISE, HE LOVED HIS
JOB. JUSTICE PATTERSON: IT IS POST RETIREMENT INCOME FROM THE PENSION, FROM
THE OTHER, THE OTHER EMPLOYMENT AND THE BENEFITS THAT HE HAD IS AULT RELEVANT TO THE ULTIMATE
ISSUE THAT WAS BEFORE THE AGENCY AT THAT TIME AND THAT IS THE REASON FOR HIS DECISION.
I MEAN YOU'RE TELLING US THE REASON FOR HIS DECISION WAS THE HEALTH BENEFITS. BUT THE
OTHER BENEFITS OF HIS DECISION TO USE THE TERM GENERALLY, ARE CERTAINLY RELEVANT TO THAT,
TO THAT DETERMINATION. RAYMOND M. BALDINO: ABSOLUTELY. EVERYTHING IS REL
VEPT AND IN AN EQUITABLE ANALYSIS, BUT I THINK THAT, FIRSTLY WE DIDN'T GET TO EQUITABLE
ANALYSIS, THE APPELLATE DIVISION DISMISSED IT UNDER THE DOCTRINE AND PRIOR MARRY AND
SECONDARY ULTRA VIRES CASE LAW, BUT I CERTAINLY DO BELIEVE FROM WHAT I SAW FROM THE AGENCY'S
DECISION THAT THEY DPOT THE ANALYSIS WRONG CERTAINLY BY REQUIRING INTENTIONAL
MISREPRESENTATION. IN TERMENT WET THEY HAD AUTHOR R TO OVERRULE THE ALJ'S FIEPINGS THAT
THERE WAS A HARM CAUSED TO MR. MEYERS, THAT WOULD NEED TO BE PROPERLY BRIEFED AND REVIEWED,
IT HASN'T BEEN DONE YET, BUT I THINK IT'S INDISSPUS ABL THAT THE WERE TWOJ PASTE CAN'T
BE PUT BACK IN THE TUBE. $94,000 CAN'T BE GIVEN BACK TO MR. MEYERS, HE CAN'T DOUGH BACK
TO SIR VS BECAUSE I DOESN'T HAVE HIS CERTIFICATION ANY MORE HAS A POLICE OFFICER
AND THE A J L ACCEPTED THAT HE DID ALL OF THAT. JUSTICE PATTERSON: YOU'RE
MAKING THE ARGUMENT THAT THE AGENCY DID NOT HAVE THE AUTHORITY TO OVERTURN THOSE FIEVEND
JGZ PT. RAYMOND M. BALDINO: IT DID BUT THEY HAD TO HAVE THE CORRECT REASONS
AND THE REASONS THAT I SAW WERE THAT THERE WAS NO INTENTION NULL MISREPRESENTATION AGAINST
HIM WHICH IS NOT THE CORRECT LEGAL ANALYSIS, AND ALSO TO DISCOUNT THE FINDING THAT HE
HAD AND HARMED MERELY BECAUSE HE WAS EARNING MONEY IN RETIREMENT. CHIEF
JUSTICE RABNER: I THINK WE HAVE YOUR POSITION ON THOSE ISSUES. IS THERE AGD ELSE YOU
WOULD LIKE TO ADD R BEFORE WE. RAYMOND M. BALDINO: ONLY THAT IT'S NOT
UNUSUAL IN THE PENSION LAW TO ALLOW FOR EQUITY TO PROVIDE RELIEF WHERE STATUTORY REQUIREMENT
ISN'T FULFILLED AND THERE'S ANOTHER CASE LIKE THAT THE BERNSTEIN CITE IN THERE OUR BROEF
FOR SUBSTANTIAL COMPLIANCE, THERE'S A WHOLE RAFRNL OF OTHER CASES AND SO IT'S NOT, IT'S
NOT THE CASE THAT EQUITABLE RELIEF WOULD BE FORECLOSED SIMPLY BECAUSE A STATUTORY TOWER
REQUIREMENT ISN'T MET AND THAT THE THE PROBLEM HERE, THAT'S WHY WITH WAVENED TO SUBMIT
AN AMICUS BECAUSE THAT ANALYSIS HAS NOT BEEN PERFORMED BY THE APPELLATE DIVISION AND WE
FEEL THAT IT SHOULD HAVE. THE COURT: THANK YOU. HR ARONS. DONNA
ARONS: GOOD AFTERNOON, MAY IT PLEASE THE COURT. AS PART OF ITS MAJOR OVERHAUL OF THE
STATE'S PUBLIC PENSION SYSTEM IN 2011, THE LEGISLATURE SIGNIFICANTLY REFOR THAT THE WAY
HEALTH BENEFITS ARE FUNDED FOR PUBLIC EMPLOYEES AND RETIRE EES, FO FIRST TIME IT REQUIRE
ALL RETIREES TO PREMIUMS THE OPENLY PEOPLE EXEMPT ARE EMPLOYEES WHO HAD 20 OR MORE YEARS
OF CREDITABLE SIR VS AS OF JUNE 28TH, 2011, R IN OTHER WORDS, THE LEGISLATURE CREATED
AS OF THAT DATE A CLOSED CLASS OF INDIVIDUALS WHO COULD QUALIFY FOR FREE HEALTH BENEFITS
IN RETIERM. JAMES MEYERS HAD 17 YEARS OF CREDITABLE SERVICE AS OF JUNE 28TH, 2011, SO
HE DID NOT BELONG THO THAT CLOSED CLASS OF GRANDFATHERED EMPLOYEES. AND THERE WAS
NOTHING HE COULD EVER DO THAT WOULD MAKE HIM PART OF THE CLASS. UNDER THESE SISHSS THE
APPELLATE DIVISION CORRECT THE FOUP THAT EQUITABLE ESTOPPEL COULD NOT APPLY.
PARAGRAPH PAR THIS COURT HAS LONG RECOGNIZED THAT IT IS ONLY IN EXTREMELY RARE AND VERY
COMPELLING CIRCUMSTANCES THAT EQUITABLE ESTOPPEL MAY BE INVOKED GENTS THE GOVERNMENT AND
FOR GOOD REASON. THIS COURT OBSERVED IN COUNTY, COUNTY OF MORRIS VERSUS, MATTER OF PUBLIC
INTEREST LEGISLATIVE WILL SHOULD NOT BE EASILY R DOCK PRISON OF ESTOPPEL TO A REGULAR
GOVERN MEMORIAL CONDUCT. SO THIS COURT WILL INVOKE ESTOPPEL GEPS THE GOVERNMENT NOT
HINDER OR PREJUDICE ESSENTIAL GOVERNMENTAL FUPGS AND AND WHERE IT DOESN'T IMPLICATE MATTERS
OUTSIDE THE EN AUTHORITY FSHGS IN OTHER WORDS THE COURT LOOK TOGS SEE WHETHER THE GOVERN
MEMORIAL EN IF THE ACTED XHIETLY OUTSIDE ITS AUTHORITY. IN THOSE KATSZ EQUITABLE ESTOPPEL
CANNOT BE INVOKED. OEFRND WHERE THE ENTITY IRREGULARLY ERR SIECHD A BASIC
POWER UNDER THE LEGISLATIVE GRAPT TRADITIONAL EQUITABLE ESTOPPEL CONSIDERATIONS MAY BE
CONSIDER. THIS CASE FALLS SKWARL WITHIN THE FIRST TYPE OF SITUATION WHERE
EQUITABLE ESTOPPEL DOES NOT APPLY. BECAUSE HE DID NOT DOCTOR 20 YEARS OF CREDITABLE SERVICE
OF SDWRUN 28, 2011, MR. MEYERS WAS PRECLUDED BY THE STATUTE FROM EVER RECEIVING FREE HEALTH
BENEFITS IN ROW TIERM TIERMENT. NOR THE DIVISION OF PENSIONS HAD ANY AUTHOR TROT THWART
THE LEGISLATIVE WILL AND ADD MR. MEYERS TO THAT CLOSED CLASS THAT WAS GRANT FATHERED
UNDER THE STATUTE. BUT EVEN IF EQUITABLE ESTOPPEL COULD BE CONSIDERED, MR. MEYERS FILED
SHOW DETRIMENTAL RELIANCE. WHEN HE PUT IN HIS RETIREMENT PAPERS, HE WAS TOLD THAT HE
WOULD RECEIVE FREE HEALTH BENEFITS. BUT THAT INFORMATION EVEN IF IT PLAYED LOEL IN HIS
DECISION TO RETIRE DID NOT DEBT TRI MEMORIALLY AFFECT HIS ELIGIBILITY FOR THESE BENEFITS.
HAD HE NOT ROW TIRED AND WORD UNTIL HE REACHED MAPPED TOWER RETIREMENT IN 2024, HE STILL
WOULD NOT BE ELIGIBLE FOR THE BENEFITS. HIS INELIGIBILITY FOR FREE HEALTH BENL FITS WAS
NOT DUE TO ANYTHING THE STATE AGENCIES DID. IT WAS SET ISN'T STONE YEARS AGO EARLIER
WHEN THE LEGISLATURE ENACTED CHAPTER 78. MR. MEYERS ALSO TESTIFIED THAT
HE SUFFERED BECAUSE HE GAVE UP A JOB HE LOVED BASED IN PART ON HIS BELIEF HE WOULD RECEIVE
FREE HEALTH BENEFITS. FWHOUT MATTER HOW MUCH HE ENJOYED WORKING FOR THE STATE POLICE,
HE STILL MADE THE DECISION IN 2015 TO TAKE EARLY RETIREMENT BECAUSE FINANCIALLY THAT WAS
THE BEST DECISION FOR HIM AND HIS FAMILY. AND THOSE CONSIDERATIONS STILL PERTAIN EVEN
THOUGH HE HAS TO CONTRIBUTE TO HIS HEALTH PREMIUMS. HIS PEPGS XIEND WITH HIS INCOME
FROM HIS SECOND CAREER STILL EX CEDAR HIS STATE SALARY AND HIS PURCHASE OF MILITARY CREDIT
WAS ALSO A FINANCIAL BENEFIT TO HIM. IT ENABLED HIM TO RETIRE FOUR YEARS EARLIER WHICH
MEANS OEFRT COURSE OF HIS LIFETIME, HE RECEIVES AN ADDITIONAL 4 YEARS OF PENSION BENEFITS.
IT ALSO ALLOWED HIM T RETIRE WITH A SPECIAL RE#250IR789 BENEFIT OF 65 PERCENT OF HIS
STATE POLICE SALARY AND 21 YEARS RATHER THAN 25 YEARS OF SERVICE. IN RT VO THE HAD SHORT
THE COMMISSION DID NOT HAVE THE AUTHORITY TO GRANT #34R MEYERS THE REMEDY HE SEEKS AND
EVEN IF IT DID, THERE WAS NO DID IT MEMORY LINES AND THERE WAS NO COMPELLING CIRCUMSTANCES
THAT WOULD WARRANT APPLICATION OF EQUITABLE ESTOPPEL. FOR ALL THEETS REASONS THE
APPELLATE DIVISION'S DECISION SHOULD BE AP FIRMED, I'M HAPPY TO ANSWER ANY QUESTION.
CHIEF JUSTICE RABNER: I'M LOOKING AT THE LETTER FROM PENSIONS TO MR. MEYERS THE JULY
27, 2015, LETTER THAT SAYS "THERE IS NO #3R50E78 YUM COST TO YOU FOR THESE VARIOUS HEATH
PLANS. " HOM LETTERS OF THIS SORT WENT OUT BY PENSIONS TO INDIVIDUALS THAT
WERE FLAT OUT WRONG? DONNA ARONS: SO THAT IS NOT IN THE RECORD BUT I DID
MAKE AN INQUIRY BECAUSE I IMAGINE THIS COURT WOULD BE REPRESENTED, AND FROM WHAT I
UNDERSTAND IT WAS 16. CHIEF JUSTICE RABNER: IT IS DEEPLY TROUBLING.
DONNA ARONS: YES. CHIEF JUSTICE RABNER: THAT SOMEONE WOULD GET A PROMISE
LIKE THAT AND MAKE A DECISION TO ROW TIRE AND THEN BE TOLD NOTWITHSTANDING THILS
MISREPRESENTATION THERE'S NO REMEDY AT ALL FOR YOU. IS THERE ANY REMEDY UNDER THESE
CIRCUMSTANCES? DONNA ARONS: CERTAINLY NARS NO REMEDY IN TERMS OF, I MEAN
THE REMEDY HE WANTS WHICH IS TO GET FREE HEALTH BENEFITS FOR THE REST OF HIS LIFE IS NOT
AVAILABLE. THE REMEDY THAT THE COMMISSION FASHIONED WAS TO NOT RECOUP THE MONEY THAT
IT THEY HAD PAID HIM AND IT APPLIED EQUITY THERE TO NOT RECOUP THE OVERPAYMENT. BUT
OTHER THAN THAT, I DON'T KNOW ANY OTHER REMEDY. I MEAN IT IS, YOU KNOW, CERTAINLY EVERYONE
IS QUITE UPSET ABOUT THIS, IT WAS A MISTAKE THAT SOMEBODY WHO WAS CODING THE COMPUTER
SYSTEM MISS CODED IT AND, YOU KNOW. JUSTICE WAINER APTER: IT AFFECTED 16
TOTAL PEOPLE YOU SAID? DONNA ARONS: YES, FROM WHAT RENG IT WAS 16 PEOPLE,
THAT'S WHAT I WAS TOLD. JUSTICE PIERRE-LOUIS: THE UNIVERSE OF RETIREES
WHO ARE IN THE SAME OR SIMILARLY SITUATED AS MRS. MEYERS? DONNA ARONS:
THEY'RE NOT ALL, SO THEY DIDN'T ALL PURCHASE MILITARY CREDIT. I MEAN THERE WERE OTHER
SITUATIONS, SOME OF THEM WERE TRYING TO TRANSFESHGS PURCHASING OTHER CREDIT AFTER
CHAPTER 78 WAS EN NAKTDED, AS I UNDERSTAND IT, BUT THEY WERE ALL, AND IT WAS ALL STATE POLICE,
IT WAS PROBLEM WITH THE STATE POLICE RETIERLT IMENT SYSTEM FROM WHAT I CAN TELL, I HAVEN'T
HEARD OF A PROBLEM IF ANY OTHER RETIREMENT SYSTEMS. CHIEF JUSTICE RABNER:
DID THEY ALL GET THE FREE COMPENSATION UNTIL THE MISTAKE -- DONNA ARONS:
YOMENT TO MISS AT ANY TIME BUT THEY WERE TOLD THEY DID NOT HAVE TO ROW PAY THE PEN
BENEFITS. NOSH NOR WAS THE NEECH OF ERROR DUE TO THE 2013 STATUTE BEING ENACTED P THE PUSH OF
THOSE SIR VES CREDITS? DONNA ARONS: I DON'T THINK SO BECAUSE I'M AWARE OF
1 OTHER CASE, AT LEAST ONE CASE WHERE IT WAS THE INDIVIDUAL HAD PUSHED, HE HAD BEEN NMENT
PERCENT (P E R S PRIOR AND HE HAD PURCHASED THAT PURCHASED IT KRID DID IT AFTER CHAPTER
78 WAUDZ ENACTED, HIENL IT WAS A CODING ERR RER IN IMPLEMENT THS CHAPTER 78, I DON'T WANT
TO MISTAKE. JUSTICE NORIEGA: I HAVE A FOLLOW UP QUESTION, ARE YOU FAMILIAR
WITH ANY PROVISION THAT WOULD ASSIST IN DETERMINING WHETHER OR NOT THERE'S ANY
RETROACTIVITY CONSIDERED FOR THE PURCHASE OF SERVICE CREDITS. DONNA ARONS:
THERE ISN'T. SO IF YOU LOOK AT THE STATUTES, CREDITABLE SERVICE IS DWIEPD IN 53:5 A-3 AS
SERVICE RENDERED FOR WHICH CREDIT IS ALLOWED ON THE BASIS OF KRISHGSS MADE BY THE MEMBER OR
THE STATE. AND THEN IF YOU GO TO 53:5 A-6, IT SAYS SERVICE AS A #23U8 TIME COMMISSIONED
OFFICER, NONCOMMISSIONED OFFICER, ETCETERA, RENDER AS A MEMBER, AND SERVICE CREDIT WHICH
WAS TRANSFERRED SHALL, IF THE REQUIRED KRISHGSS ARE MADE BY THE STATE AND THE MEMBER,
BE CONSIDERED AS CREDITABLE SERVICE. AND THEN IT TALKS LATER ABOUT PURCHASING,
53 :-5, 5 A-6 B, IT TALKS ABOUT P PURCHASING CREDIT FROM TELEPHONE ANOTHER RETIREMENT
SYSTEM AND IT SAYS THEY CAN BE PERMITTED TO PURCHASE IT IF SUCH PURCHASE SERVICE CREDIT
OR TRANSFERRED PURCHASE CREDIT IS ESTABLISHED, IT SHALL BE CONSIDERED AS CREDITABLE SERVICE.
AND THEN CHAPTER 87 HATS SIMILAR LANGUAGE. ONCE IT'S PURCHASE IT'S CONSIDERED CREDITABLE
SERVICE. SO CREDITABLE SIR VSS YOU WORKING FOR AN EMPLOYER FOR WHICH YOUR SIR VS IS CREDITED
IN THE PENSION SYSTEM AS LONG AS YOU MAKE THE PAYMENT AND THE STATE IS MAKE THE PAYMENT.
PURCHASE SIR VES IS A DIFFERENT ANIMAL. SO LTS ANY CONSIDERED AS CREDITABLE
SERVICE BUT OPENLY AFTER IT'S PURCHASE. VEN CHAPT 78 IS VERY CLEAR, YOU HAVE TO HAVE 20 YEARS
OF KRID DID IT ABL SERVICE AS OF JUNE 28TH, 2011. SO I DON'T REALLY THINK THERE IS A
REEL RREL QUESTION ABOUT THE FRONT LOADING OR WHATEVER. IT'S YESTERDAY DID IT ABL ONCE
IT'S PAID. CHIEF JUSTICE RABNER: WHAT ABOUT THE LANGUAGE IN 6.1 THAT COUNSEL
WAS ARGUING TO US, CAN YOU TELL US YOUR UNDERSTANDING OF THAT? DONNA
ARONS: YEAH, SURE. THEY'RE POINT K TO THE PART NOT WITH STAND ANY PRO KRIGS OF THIS ACT
TO THE CONTRARY, MEMBER SMAL NOT BE LIABLE FOR ANY COSTS ASSOCIATED WITH THE FINANCING OF
PENSION ADJUSTMENT BEEN IT IS IF AND HEALTH CARE BENEFITS FOR RETIREES HAD WHEN PURCHASING SIR
VS FOR MILITARY SIR VES. THAT MARIJUANA IS IN ALL THE CREDIT PURCHASE
STATUTES IN THE PENSION SYSTEM, YOU KNOW, EVERY PENSION SYSTEM ALLOWS FOR PURCHASE OF PENSION
CREDIT. AND WHAT IT'S TALKING ABOUT IS WHEN THEY ARE MAKING AN ACTUARIAL CALCULATION,
WHEN HE GO IN TO PURCHASE CREDIT AND THEY HAVE TO MAKE AN ACTUARIAL CALCULATION BASED
ON YOUR AGE AND SALARY AND WHATEVER OTHER FACTORS, THEY'RE NOT SUPPOSED TO CONSIDER PO
TENTIAL RETIREMENT, THE PAYMENT OF POTENTIAL RETIERLT BENEFITS AND HOW MUCH THE STATE
WOULD HAVE TO PAY FOR RETIREMENT BENEFITS IN THE FUTURE OR POTENTIAL COLAs. WE DON'T HAVE
COLAs ANYMORE BECAUSE CHAPTER 78 DID AWAY WITH THOSE ALSO FOR RETIREES. BUT THE LEGISLATIVE
HISTORY KIND OF MENGS IT IN PAFSHG IT SAYS THE BILL ALSO PROVIDES THAT THE PURCHASE COST
TO THE MEMBER DID NOT INCLUDE ANY COSTS ASSOCIATE WITH THE COST OF LIVING A JUDGMENT.
SO IT'S A PAYMENT OF A COLA HAS BEEN SUS SPEPED BY CHAPTER 78 IT IS NOT OCCUR RPLY A
PROSPECT SOESHTH WITH THIS BILL. THAT'S ALL THAT MEANS. IT WOULD BE A NOM
LUS TO SUGGEST, I THINK THEIR READ OF IT IS YOU COULD PURCHASE A MONTH OF MILITARY DREAD DID
IT AND THERE BY GET AR ROUP CHAPTER 78 BECAUSE YOU WOULD NEVER HAVE TO PAY FOR YOUR HAELT
MANY BENEFITS EVER AGAIN AND IN JUST MAKES NO SENSE. JUSTICE NORIEGA: THAT
BENCH WARRANT FOR SOMEBODY WHO RETIRED AT 19 YEARS AND 11 MONTHS RIGHT BEFORE THE THE EFFECTIVE
DATE. IF THEY'RE ONLY PURCHASING ONE MONTH IT WOULD CARRY THEM TO 20 YEARS.
DONNA ARONS: RIGHT, NO, WHAT I MEAN, I THINK THEIR ARGUMENT ABOUT THIS LANGUAGE THAT, MAKE
I DON'T UNDERSTAND THE ARGUMENT BUT I THOUGHT THAT THEY WERE CITING THIS PARAGRAPH TO SUGGEST
THAT CHAPTER 87 KIND OF UNDOES WHAT CHAPTER 78 DOES, BECAUSE IT MEPGS HEATH CARE BENEFITS,
IT MEEVENS IF YOU PURCHASE MILITARY TIME, IT SOMEHOW MEANS CHAPTER 78 DOESN'T AP PIE AND
THAT WOULD A NOM LUS BECAUSE YOU COULD PURCHASE A MONTH OR A YEAR OF MILITARY TIME AND HAVE
IT APPLY AND THEN SOMEHOW YOU'RE GOI TO GET FREE HAELT NL BENEFITS? IT MEANS THAT IT THOOS DO
WITH THE CALCULATION, IT SAYS THE FINANCING OF PENSION ADJUSTMENT BENEFITS, IT HAS NOUG
DID WITH, YOU KNOW, YOUR ENTITLES MENT TO ANY KIND OF HEALTH BHEN FITS IN THE FUTURE.
JUSTICE FASCIALE: VERY QUICKLY. THEY SAY THAT THE AGENCY DECISION WAS
ARBITRARY AND CAPRICIOUS BECAUSE THE AGENCY REQUIRED THE TROOPER TO SHOW INTENTIONAL
MISREPRESENTATION. AM I RIGHT ABOUT THAT? DONNA ARONS: THEY, THE AGENCY
MENTIONED THAT IN ITS FIEM DECISION BUT THAT WAS NOT ROLL THE BASIS OF THE FINAL DECISION. IT
MENGS IT KIND OF IN PASSING. JUSTICE FASCIALE: SO THERE'S NO REQUIREMENT
OBVIOUSLY THAT HE SHOW INTENTIONAL MISREPRESENTATION. DONNA ARONS:
NO. JUSTICE FASCIALE: IT WAS A MISTAKE. DONNA ARONS: IT WAS A
MISTAKE. CHIEF JUSTICE RABNER: QUESTIONS ANYONE, HAG YOU WOULD LIKE T AT.
DONNA ARONS: FOR ALL THESE REASONS THE APPELLATE DIVISION REASON SHOULD BE
AP FIRMED. CHIEF JUSTICE RABNER: THAUPG TO ARE WE'LL TAKT MATTER UNDER
A ADVISEMENT