COURT HOUSE – Wildwood Mayor Ernie Troiano Jr. and Commissioner Steve Mikulski have filed a lawsuit asking for an interpretation of how elected officials’ hours should be calculated when determining whether they are full-time employees.

Troiano and Mikulski, who were sworn in for four-year terms on the Wildwood Board of Commissioners this week, were indicted by a state grand jury on charges that they committed fraud and unlawfully accepted health benefits they were not entitled to as part-time employees.

Troiano, Mikulski and Pete Byron, the city’s former mayor, who was also indicted in the same case, have all pleaded not guilty and said they worked more than the required 35 weekly hours, spending time at City Hall and at public events and working on city business from other locations. They’re due in criminal court for a conference Friday, Jan. 19.

In the new civil suit, which was filed in Superior Court Wednesday, Dec. 27, and names the state Division of Pensions and Benefits, the Division of Criminal Justice, the state Health Benefits Commission and the City of Wildwood as defendants, Troiano and Mikulski ask the court for declaratory relief, cleaning up what they believe is a poorly written law open to different interpretations.

The plaintiffs asked the judge to sign an order stating that the 35 hours per week required to be full time can be worked on any schedule, varying day to day, as long as the total hours over seven days amount to 35.

They also ask for an order to clarify a key term – “fixed” – in the statute they are charged with violating. In their pleading, filed by Troiano’s attorney, Brian Pelloni, the two commissioners argue “fixed” does not mean they need to work a set schedule, but only refers to the total minimum hours required to be worked per week.

Additionally, Troiano and Mikulski say the court should sign an order stating that any elected officials who work 35 hours per week should be considered “full time,” regardless of how the municipality they are serving views them.

The suit asks the court to acknowledge that elected officials may carry out work duties outside of City Hall and outside of normal business hours, that work done at any location and at any time relating to their elected position should count toward their hours, and that they should be able to record them in any practical format.

In 2010, the state Legislature changed eligibility requirements for participation in the State Health Benefits Program. Pursuant to that new 2010 law, eligible employees’ “hours of work are fixed at 35 or more per week.” The word “fixed” is never defined, the plaintiffs argued, and “full time” is not defined beyond that it relates to 35-plus work hours per week.

A Local Finance Notice, issued later that year to address the impact of the new law on municipalities and other employers participating in the benefits program, said further guidance would follow.

“This is a new concept and raises questions, especially regarding elected officials, concerning how the 35 hours minimum is calculated; what activities count as ‘work hours,’” the notice stated. “The state Health Benefits Commission will need to address the multitude of different circumstances presented by the requirement. As the law is new, the commission will address the issue in the near future.”

However, Troiano and Mikulski argue that the further guidance never came. Troiano took benefits while he was in office from 2011-2019, and Mikulski began accepting them when he became a commissioner in 2020. Both say they worked the 35 hours.

In the filing, the two men say the Division of Pensions and Benefits began looking into the Wildwood commissioners’ hours in 2019 after an “anonymous” email to the Pension Fraud and Abuse Unit tipped off investigators. The investigation was eventually handed off to the Department of Criminal Justice.

Troiano and Mikulski argued it is essential for the court to clear these issues up, not only because of the criminal charges they face, but also to determine if they can accept benefits in the new term they began Wednesday, Jan. 3.

The two did not respond to requests by the Herald for comment on the civil case.

Michael Symons, a spokesman for the state Attorney General’s Office, which is handling the prosecution, told the Herald his office has no comment on the pending litigation.

Responding to an inquiry from the Herald, the Division of Pensions and Benefits referred a reporter to Gov. Phil Murphy’s office. The governor’s office did not immediately respond to an inquiry on the case.

Louis DeLollis, the city solicitor in Wildwood, also did not respond to an email from the Herald Thursday, Jan. 4.

The civil case has been assigned to Judge James H. Pickering Jr. in Cape May County Superior Court.

Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.