NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1170-06T11170-06T1

GLENN SELLERS,

Appellant,

v.

BOARD OF TRUSTEES OF THE

POLICE AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent.

_________________________________________

Argued October 23, 2007 - Decided

Before Judges Coburn, Grall and Chambers.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PERS #2-1248272.

Steven J. Kaflowitz argued the cause for appellant (Law Office of Timothy R. Smith and Associates, L.L.C., attorneys; Pablo N. Blanco, on the brief).

Eileen S. Den Bleyker, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Den Bleyker, on the brief).

The opinion of the court was delivered by

CHAMBERS, J.A.D.

Glenn Sellers appeals from the Final Administrative Determination of the Board of Trustees (Board) of New Jersey Police and Firemen's Retirement System (PFRS) dated October 17, 2006, denying him enrollment in PFRS because his age exceeded thirty-five, the statutory maximum for such enrollment. Sellers had left his previous job and accepted employment as a firefighter with the Township of Bloomfield (the Township). Both Sellers and the Township thought that once Sellers' age was adjusted for his time as a police officer and his years in military service, he would meet the statutory requirements. This belief was mistaken, and enrollment was denied.

Sellers maintains that the Board should exercise its equitable powers and waive the age limitation under the circumstances here as it has done in the past. The Board maintains that it does not have the power to grant a waiver of the age requirement on an equitable basis. Under the circumstances here, we find that the Board does have equitable powers to allow Sellers enrollment in PFRS and remand in order that the Board may consider whether it should do so.

I

On June 1, 2005, the Township permanently appointed Sellers, who was over the age of thirty-five, as a firefighter. He left his position as a dispatcher with Essex County College in order to take this position. He continues to work for the Township as a firefighter pending the outcome of this appeal.

New Jersey statutory law prohibits the appointment of a full-time firefighter whose age exceeds thirty-five years. N.J.S.A. 40A:14-12. Further, all full-time firefighters must be enrolled in PFRS, which requires that a full-time firefighter may not be over the age of thirty-five at the time of enrollment. N.J.S.A. 43:16A-3; N.J.A.C. 17:4-2.2; N.J.A.C. 17:4-2.5. In a civil service municipality, a person's age is calculated from the announced closing date of the civil service examination for the position. N.J.S.A. 40A:14-12; N.J.A.C. 17:4-2.5(b). Sellers' age on April 30, 2003, the closing date of the examination for the firefighter position which he took, was thirty-eight years, one month and twenty-five days; he thereby exceeded the statutory maximum by three years, one month and twenty-five days.

Sellers and the Township believed, however, that under applicable statutory law, his age would be reduced by the seven years and nine months he had previously served as a police officer in the Township of West Orange and by the approximately four years he had spent in military service.

When Sellers' application for enrollment in PFRS initially came before the Board on May 8, 2006, it was approved due to his prior service of more than seven years as a police officer with the Township of West Orange. However, by letter dated May 24, 2006, that approval was withdrawn pending legal review. The application was denied on July 18, 2006, on the basis that Sellers' age, even when reduced by the permitted deductions, still exceeded the statutory maximum. Sellers appealed that decision, arguing that his years as a police officer and his military service warranted an adjustment to his age and in the alternative that the Board should approve his application on equitable grounds. The Board issued its Final Administrative Determination on October 17, 2006, denying Sellers' request to enroll in PFRS. Since the Board determined that no questions of fact were present, it did not refer the matter for an administrative hearing, but, in accordance with N.J.A.C. 17:4-1.7(e), advised appellant that he could appeal to this court.

A review of the statutes indicates that Sellers was not entitled to a reduction based on his service as a police officer; nor did his military service deduction provide him with sufficient time to overcome the maximum age requirement. The statutes do allow police officers to receive a reduction for prior service as a police officer. N.J.S.A. 40A:14-127.1; N.J.A.C. 17:4-2.5(f). No similar provision, however, allows firefighters a reduction from the age requirement for prior service as a police officer. The age reduction provision for veterans, which applies to both police and firefighters, is limited to service during "time of war." N.J.A.C. 17:4-2.5(c)-(e) (recognizing N.J.S.A. 38:23A-1 to -7 as modifying the maximum age requirements for veterans enrolling in PFRS by time served during "time of war," as defined by N.J.S.A. 43:16A-11.7). Sellers' military service during "time of war," as defined by N.J.S.A. 43:16A-11.7, totaled only five months and two days; with this deduction, his age still exceeded the statutory maximum. Because full-time firefighters must be members of PFRS under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.2, Sellers will lose his position if he is unable to enroll in PFRS.

In this appeal, Sellers does not dispute the calculations of his age made by the Board pursuant to the statutes discussed above. He maintains, however, that the Township and he reasonably believed that his age would be reduced pursuant to statutory provisions. Under these circumstances, Sellers maintains that principles of estoppel apply, allowing the Board to exercise equitable discretion to permit him to enroll in PFRS. The Board maintains that it does not have the power to allow enrollment based on an equitable estoppel theory here.

II

A practice has developed whereby the Board has exercised equitable powers to waive the age requirement on a case-by-case basis. This practice was triggered by changes in the law caused by the Federal Age Discrimination in Employment Act (ADEA) which prohibited discrimination in the hiring or discharging of employees based upon age for those who are at least forty years of age. 29 U.S.C.A.