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In re Allen

Decided: March 11, 1993.

IN THE MATTER OF JOHN J. ALLEN


On appeal from State of New Jersey, Department of Personnel, Merit System Board.

Michels, Bilder and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

[262 NJSuper Page 440] Hazlet Township appeals from a decision of the Merit System Board, ordering that John Allen, a police sergeant who had been retired on disability but who was no longer disabled, be reappointed to his former position upon the next vacancy and directing that his seniority be aggregated to include prior and current permanent service. Although phrased in a variety of ways, the Township contends that (1) Allen's petitions to the Department of Personnel (DOP) and to the Board were untimely, (2) the Board lacked jurisdiction to interpret N.J.S.A. 43:16A-8(2), a statute dealing with pension rights, (3) the Board failed to adhere to its own regulations but instead applied an internal policy statement that was not adopted pursuant to the Administrative Procedure Act (APA) (N.J.S.A. 52:14B-1 through 15), (4) the Board retroactively applied a current regulation which was not in effect when the dispute arose, and (5) Allen waived his right to be reinstated to his former position and is barred by the doctrine of laches and equitable estoppel. We find no merit in these arguments and affirm essentially for the reasons expressed by the Board in its decision as supplemented by its determination denying the Township's application for a stay. We hold that a public employee who returns from a disability retirement because his disability ceases should, to the

extent possible, be reinstated to his former position and be given full credit for his prior service.

I.

The salient facts are not in dispute. On March 1, 1988, Allen was placed on a one-year medical leave of absence from his permanent position as police sergeant. Allen applied to the Police and Fireman's Retirement System (PFRS) for an accidental disability retirement pension. Although PFRS denied that application, it found that Allen was permanently and totally disabled and thus granted him an ordinary disability retirement, effective March 1, 1988. During the pendency of Allen's appeal from that determination, his injury healed to the point that he was no longer disabled. On April 7, 1989, Allen sought reinstatement to his position as sergeant. While PFRS was reviewing that application, Allen initiated a series of inquiries to the DOP in which he repeatedly requested clarification respecting his right to return to his former position.

On October 19, 1989, PFRS determined that Allen was medically fit for re-employment. Allen continued to press the DOP for a definitive response to his requests for clarification, twice demanding hearings on the subject. The DOP ultimately advised the Township that Allen had no right to be restored to his prior position or to be credited with seniority for his prior service. The DOP did not send a copy of this letter to Allen and did not apprise him of his right to appeal.

Impatient with the ambiguity surrounding his status, Allen entered into an agreement with the Township wherein he was appointed to the position of police officer. Allen's appointment was effective on April 16, 1990. He was given no seniority for his prior service. Nor was he given any assurance that he would be accorded a preference for the next vacant sergeant's position.

Allen appealed to the Board on November 6, 1990, seeking reinstatement to his prior position as sergeant and seniority for

his aggregated service. In its written decision, the Board found that the Township should have re-employed Allen as of March 12, 1990, the date that two police officer positions were filled by the Township. Citing an internal policy statement (policy no. 16.13-1), the Board determined that Allen was entitled to his pre-disability service in addition to his service upon being returned to the police force for the purpose of seniority. Referring to N.J.S.A. 43:16A-8(2), which requires that a formerly disabled employee return to his "former duty or any other available duty" upon being restored to health, the Board directed the Township to reappoint Allen to the position of sergeant when the next vacancy occurred. This appeal followed.

II.

Initially, we reject the Township's argument that Allen's appeals to the DOP and to the Board were untimely. At the outset, we point out that there is no jurisdictional statutory timeline within which Allen was required to appeal. Although it has been said that the 20 day time constraint contained in N.J.S.A. 11A:2-15 is jurisdictional and cannot be relaxed, Borough of Park Ridge v. Salimone, 21 N.J. 28, 120 A.2d 721 (1956); but see Jones v. Dept. of Civil Service, 118 N.J. Super. 323, 287 A.2d 463 (App.Div.1972), that section pertains to disciplinary matters. Other appeals are not subject to the statutory time period but nevertheless, by regulation, must be ...


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