NJ APPELLATE COURT UPHOLDS COMPLETE PENSION FORFEITURE FOR $300 BRIBE
Criminal convictions often carry collateral consequences, the severity of which can occasionally dwarf that of the underlying offense. A precedential Appellate Division decision issued last week serves as a reminder of that unfortunate reality. State v. Anderson, ___ N.J. Super. ___, 2020 WL 1502170 (App. Div. Mar. 30, 2020).
Bennie Anderson worked for the City of Jersey City for forty years, most of them in the City’s Tax Assessor’s Office, before retiring with a fully vested pension that paid him over $60,000 annually. Id. at *1. Shortly before his retirement, he accepted a one-time payment of $300 from a cooperating witness to change the tax description of the witness’s property from a two-unit dwelling to a three-unit dwelling. Id. at 2. Anderson pled guilty to a federal bribery offense and was sentenced to two years’ probation and fined $3,000, ten times the amount of the bribe. Id. The City then reduced his pension by approximately 20 percent to just under $48,000. Id.
The State then sued Anderson in state court to forfeit the remainder of his pension under a state statute, N.J.S.A. 43:1-3.1, which mandates complete forfeiture of public employees’ pensions if convicted of bribery or other enumerated offenses which involve or touch upon their public offices. Id. The trial court summarily forfeited his pension, rejecting his arguments that such forfeiture would violate the federal and state constitutions’ excessive fines clauses by reasoning that pension forfeitures do not implicate those clauses because pensions are mere contractual arrangements, not constitutionally protected property rights. Id.
On appeal, the Appellate Division acknowledged that most jurisdictions which have considered the issue agreed with the trial court “that pension forfeitures are not subject to an excessive fines analysis because receipt of pension funds is in the nature of a contractual arrangement between a public employee and employer conditioned on honorable services, rather than a property right.” Id. at *3 (citations omitted). But the court disagreed with those authorities, instead finding that Anderson’s “right to a pension was a property right and the forfeiture was” both a “fine” and a “punishment” within the meaning of the excessive fines clauses. Id. at *6.
However, the court held that the forfeiture, while punitive, was not excessive, rejecting Anderson’s claim that “the forfeiture of $47,918.76 per year in pension income for the duration of his life because he accepted a $300 bribe,” after forty years of otherwise unblemished public service, was unconstitutional. Id. Acknowledging that “mandatory forfeiture of defendant’s pension benefits may seem like a harsh penalty given his receipt of a mere $300 bribe,” the court nevertheless found that even this “modest sum” is “in actuality a colossal amount when measured against the damage to the public trust caused by that illegal act.” Id. at **6-7. The court also distinguished a 2016 Massachusetts decision which vacated the forfeiture of a police officer’s pension as constitutionally excessive, noting that the officer was convicted of “‘snooping’ on his colleagues’ test results,” not taking “money illegally to perform a function he was being paid to honorably discharge.” Id. at *7. The court concluded that “the Legislature’s
determination that total forfeiture of pension benefits is an appropriate consequence of certain public employee misconduct, and that the punishment here was not grossly disproportional in comparison to the gravity of his offense” and was not, therefore, constitutionally excessive.
The court noted that Anderson would “receive a total return of his pension contributions” under state law, notwithstanding the forfeiture. Id. at *7 n.4. But since he was just 60 years old at the time of his conviction, the forfeiture will likely cost him several hundreds of thousands of dollars over the course of his lifetime. Compared to the $300 bribe he accepted, that collateral consequence certainly seems excessive. But not unconstitutionally so, according to this decision.