Argued
February 4, 2019
On
appeal from the Board of Trustees, Police and Firemen's
Retirement System, PFRS No. 3-98613.
Steven
J. Kossup argued the cause for appellant (Feeley &
LaRocca, LLC, and Steven J. Kossup, attorneys; John D.
Feeley, of counsel and on the brief).
Robert
E. Kelly, Deputy Attorney General, argued the cause for
respondent (Gurbir S. Grewal, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney General, of
counsel; Robert E. Kelly, on the brief).
Before
Judges Messano, Fasciale and Gooden Brown.
OPINION
FASCIALE, J.A.D.
This
appeal requires us to decide whether, as a matter of law, a
police officer is ineligible for ordinary disability benefits
as a member of the Police & Firemen's Retirement
System (PFRS) if the officer separates from service by
irrevocably resigning from employment to resolve pending
drug-related disciplinary charges. We answer this question
recognizing that N.J.S.A. 43:16A-8(2) requires disability
retirees to return to duty once their disability has
"vanished or has materially diminished." Of course,
permanently resigning from employment makes returning to duty
impossible.
Isaiah
Cardinale (Cardinale) - the officer who resigned from the
police department (the Police Department) - argues that the
Board of Trustees (the Board) of PFRS acted arbitrarily by
refusing to process his application seeking ordinary
disability benefits. He maintains that the Board's
declaration that he was ineligible misapplies N.J.S.A.
43:16A-8(2), and its refusal to consider his application
amounts to a failure to turn square corners. Cardinale urges
us to direct the Board to consider his application on the
merits.
We hold
that when a PFRS member - here a police officer - voluntarily
irrevocably resigns from active service, such a separation
from employment automatically renders the individual
ineligible for ordinary disability benefits. Generally, for
individuals whose disability has vanished or materially
diminished, benefits cease when the retiree refuses to return
to duty after the Board has so ordered. In this sense,
disability retirees are unique. But here, Cardinale can never
return to duty solely because of his final resignation,
rather than his refusal to do so upon disability
rehabilitation. Under the governing legislative framework,
the inability to return to duty - due solely to an
irrevocable resignation - prevents the Board from statutorily
terminating any granted benefits, a result which would
contravene important public policy underlying disability
retirement benefits.
We
therefore affirm.
I.
In
August 2004, Cardinale began working as a police officer. On
December 16, 2013, he submitted to a random drug test. Two
days later, Cardinale admitted to using cocaine. The Police
Department immediately suspended him pending the results of
the test, and Cardinale successfully completed drug and
alcohol treatment in Florida. In February 2014, the
toxicology report demonstrated that he had tested positive
for cocaine.
On
February 21, 2014, the Police Department issued a Preliminary
Notice of Disciplinary Action (PNDA). Before that, Cardinale
had performed his job without any documented problems. The
PNDA charged him with violating the following sections of
N.J.A.C. 4A:2-2.3(a) and the Police Department's rules
and regulations:
N.J.A.C. 4A:2-2.3(a):
1. Incompetency, inefficiency or failure to perform duties;
3. Inability to perform duties;
6. Conduct unbecoming a public employee;
7. Neglect of duty; [and] 1[2]. Other sufficient [c]ause.
. . . Department Rules & Regulations:
Oath of Office;
1:5 Code of Ethics;
2:24 Employee Drug Testing;
3:1.1 Standards of Conduct;
3:1.11 Obedience to Laws and ...