On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
On September 15, 2005, William Paterson University served a preliminary notice of disciplinary action upon appellant Lynette Butler, who was employed by the University as a sergeant in its campus police department. The notice charged appellant with an "inability to perform duties," in violation of N.J.A.C. 4A:2-2.3. The specification of charges alleged that "[a] psychological fitness for duty determination states that you are unable to perform the duties of a campus police officer." The notice stated that the University sought appellant's "removal" from her position.
On October 3, 2005, the University conducted a pre-suspension hearing, as a result of which a hearing officer upheld appellant's suspension without pay based on a finding of inability to perform her duties.
On November 2, 2005, the Division of Pensions notified appellant that the University had filed an application for an involuntary ordinary disability retirement on her behalf. Thereafter, the University held the disciplinary charge against appellant in abeyance pending a decision by the respondent Board of Trustees of the Police and Firemen's Retirement System (PFRS Board) on the application for an involuntary ordinary disability retirement. The record before us does not indicate whether appellant acquiesced in the University's decision to hold this charge in abeyance. In any event, it is undisputed that appellant's suspension without pay continued while the PFRS Board processed the application for an ordinary disability pension because of the disciplinary action against appellant brought by the University rather than any action by the PFRS Board.
By letter dated January 9, 2007, the PFRS notified appellant and the University that it had determined appellant was not totally and permanently disabled from performing her duties as a sergeant in the campus police department. Accordingly, the PFRS Board denied the University's application to involuntarily retire appellant on an ordinary disability pension and directed the University to return appellant to duty.
The University appealed this decision and the PFRS Board transmitted the matter to the Office of Administrative Law as a contested case. An Administrative Law Judge (ALJ) conducted an evidentiary hearing on the application, and the ALJ issued an initial decision on May 1, 2008, which found that appellant is not totally and permanently disabled from the performance of her normal and assigned duties. In addition, the ALJ concluded that the PFRS Board had no authority to award appellant back pay or the attorney's fees and other costs she incurred in opposing the University's application to involuntary retire her.
The PFRS Board adopted the ALJ's initial decision and consequently ordered the University to reinstate appellant. The PFRS Board also concurred with the ALJ's conclusion that it had no authority to award appellant back pay or the litigation costs she incurred in opposing the University's application.
Appellant filed this appeal from the part of the PFRS Board's final decision that denied her request for an award of back pay and costs. The University did not cross-appeal from the part of the PFRS Board's final decision that denied its application to involuntarily retire appellant on an ordinary disability pension. We were advised at oral argument that the University has reinstated appellant but did not award her any back pay for the period of time she was suspended without pay.
Appellant presents the following arguments on her appeal:
POINT I BUTLER SHOULD BE AWARDED BACK PAY, ATTORNEYS' FEES & COSTS INCURRED WHILE DEFENDING THE DECISION OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM.
POINT II THE BOARD OF TRUSTEES FOR PFRS RETREATED FROM ITS AFFIRMATIVE DUTY TO DEFEND ITS INITIAL ...