AVALON – A group of veteran lifeguards has sued the borough, asking a Superior Court judge to rule that Avalon is in violation of state law for not offering pensions to eligible guards upon retirement.
The suit was filed following months of unsuccessful negotiations between the six plaintiffs, all Avalon Beach Patrol lieutenants, and borough officials. The lieutenants claim they are eligible for pensions, but Avalon, they say, takes the position that the pension law does not apply to the borough.
Avalon, which has not yet filed a response to the suit, declined to comment.
Christopher Barrett, an attorney with Barton Gilman LLP who is not involved in this case but has years of experience in New Jersey employment litigation, told the Herald the Avalon lawsuit will likely come down to whether the court believes it was the Legislature’s intent to include boroughs, townships, villages and other forms of municipality under the lifeguard pension statute, which specifically refers to “cities.”
Under state law, cities of the fourth class are those “bordering on the Atlantic Ocean which are seaside or summer resorts.”
A separate statute, which the Avalon lieutenants cite in their complaint, lays out the eligibility requirements for New Jersey ocean lifeguards to qualify for a pension. According to that law, “in all cities of the fourth class, any member of the lifeguard force, whether employed as an officer or a guard,” who is at least 45 years old with 20 or more total years of service and at least 10 consecutive years on the beach patrol prior to their application for the pension, “may … be retired upon half pay.”
Plaintiffs Erich Wolf, Ian Keyser, Shane McGrath, Danielle Smith, Craig Whitehead and Tyler Wolf claim they have a right to the pension, but they say when they demanded one, Avalon balked.
“Rather than recognize plaintiffs’ right to a pension, the borough responded by telling these vital members of the community that they would not be entitled to a pension and that the statute did not apply to the borough or its beach patrol,” the complaint, which was filed March 15 on behalf of the Avalon Beach Patrol lieutenants by their attorney, Kevin D. Jarvis, reads.
Jarvis did not respond to an interview request from the Herald.
Barrett, who spent 10 years as a Sea Isle City lifeguard before becoming a lawyer, told the Herald he reviewed the complaint and cautioned that his opinion is based solely on his “limited understanding from reading the complaint.”
However, he said “boroughs” – like Avalon – were a well-established form of government prior to when the lifeguard pension statute was enacted in 1928. This, he said, may create issues with the Avalon lieutenants’ case.
“Interestingly, the lifeguard pension statute was amended in 1936 to finally include the law’s sponsor’s statement, which again reiterated that it applied only to ‘cities of the fourth class,’” Barrett said in a phone interview April 5.
“In my view, this statement — and the absence of wording to include ‘boroughs’ or ‘townships’ in the actual law — further emphasizes the Legislature’s intent of the applicability of the lifeguard pension statute to only ‘cities of the fourth class.’”
Scott Wahl, Avalon’s business administrator and public information officer, declined to comment when reached by the Herald. “It is the policy of the borough not to comment on active litigation,” he said.
Wahl told the Herald the borough’s lawyer for this case was Vincent P. Sarrubi, but the attorney did not respond to an inquiry from the newspaper. Sarrubi has not yet filed a response to the complaint in court.
Wahl did not respond to follow-up questions from the Herald about whether there were benefits to offering a pension program, even if not legally required, specifically considering the context of the borough’s boasting in recent years that it would pay lifeguards top dollar when recruiting was difficult countywide.
According to McGrath, one of the plaintiffs, Avalon is among five of the 15 municipalities in South Jersey employing a lifeguard force that does not offer pensions.
McGrath, a 23-year veteran of the patrol who came straight off the beach to address the Borough Council in August 2023, asked for the elected officials’ opinions on pensions for the lifeguards and why the borough was not moving forward with negotiations.
But Avalon’s solicitor, Nicole Curio, interjected before the council could respond. She said the negotiations were a confidential process and rebuffed the accusation the borough was refusing to negotiate, while acknowledging negotiations had stalled.
Sandy Bosacco, president of the South Jersey Lifeguard Chiefs Association and the leader of neighboring Stone Harbor’s beach patrol, did not respond to an email from the Herald seeking his insight.
Barrett, the lawyer who spoke with the Herald about the law surrounding the case, said the complaint “is a little different than what people think in terms of a traditional lawsuit.” In this case, the Avalon guards are asking for the court to give them a favorable interpretation of the statute.
“When the language in a law isn’t clear, courts look to other things outside of the words of the actual law to determine the intent of the Legislature and the law’s meaning,” he said. “Courts may look to things like transcripts of legislative sessions, statements from the law sponsors, statements from the governor about the law from when he signed it, or analogous laws.”
Procedurally, Barrett said, after the borough files its response, the court will likely set a date to hear oral arguments and, at that hearing, the judge may ask both sides to further brief their interpretation of the statute if the judge feels the legislative intent is still unclear. If he doesn’t see a need for that, he may rule based on the arguments.
“If there is no question about the plain meaning of the words in the law, then there’s no need to go through extrinsic evidence outside of the law’s plain meaning,” Barrett said. “So, if that’s how the judge sees it, there won’t be any need to look at legislative statements, bill sponsor statements, governor’s statements and things like that.”
According to a report in the Herald in August 2023, in some cities, pension plans are offered, as required, but underfunded. A recent report by the New Jersey state comptroller found Brigantine’s lifeguard pension plan underfunded by $4.5 million, according to that August report.
The Avalon suit has the potential to establish case law in an area where there is currently little precedent for the courts to rely on, Barrett said. He found a few cases involving lifeguard pensions with published opinions, but those cases involved cities.
“There have been few published cases regarding the lifeguard pension law,” he said. “Whatever happens in this lawsuit could have a broader impact than just on the Avalon Beach Patrol. It could change pension availability in boroughs and other townships that have lifeguard forces that currently do not provide their lifeguard employees with pensions.”
“I will be watching closely how this lawsuit plays out,” Barrett added.
Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
