NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0075-21 A-1880-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN LAVIN,
Defendant-Appellant. ____________________________
Petitioner-Appellant,
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent. ____________________________
Submitted October 24, 2023 – Decided December 14, 2023
Before Judges Gooden Brown and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-12- 1408, and the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS No. xx9587.
Fusco & Macaluso, attorneys for appellant (Amie E. DiCola, on the briefs).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent State of New Jersey (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).
Nels J. Lauritzen, Deputy Director, Legal Affairs, attorney for respondent, Police and Firemen's Retirement System of New Jersey (Juliana C. DeAngelis, Legal Counsel, on the brief).
PER CURIAM
Sean Lavin, a former sergeant at the Mercer County Sheriff's Office who
was charged with official misconduct and tampering with public records and
admitted into the Pre-Trial Intervention Program (PTI) on the condition that he
resign from the Sheriff's Office and forego future employment in Mercer
County, appeals from: (1) the July 24, 2021, Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing; and (2)
the January 12, 2022, final agency decision of the Board of Trustees (Board) of
the Police and Firemen's Retirement System (PFRS), finding him ineligible to
apply for accidental disability retirement (ADR) benefits. The appeals were
A-0075-21 2 calendared back-to-back. Because they share common facts, we now
consolidate them for the purpose of issuing a single opinion and affirm in both
appeals.
I.
The facts are largely undisputed. On December 6, 2013, Lavin and other
members of the Sheriff's Office were assisting with security at an event at the
Sun National Bank Center in Trenton. Three women, two of whom were visibly
intoxicated, were denied entry due to their condition and became unruly . As a
result, they were arrested for disorderly conduct. While one woman was
handcuffed with her hands behind her back, Lavin allegedly pepper-sprayed her
in the face. After the incident, Lavin allegedly instructed two subordinate
officers at the scene to have their reports match his. Lavin's report falsely stated
that the woman was not handcuffed and was still struggling with the officers
when the pepper spray was deployed.
On December 12, 2013, complaint-summonses were issued charging
Lavin with two counts of official misconduct in connection with the incident.
Shortly thereafter, Lavin's employer filed a Preliminary Notice of Disciplinary
Action, seeking Lavin's removal from office, effective December 13, 2013. On
A-0075-21 3 January 7, 2014, a Final Notice of Disciplinary Action was issued, which
indefinitely suspended Lavin pending the disposition of the criminal charges.
On December 10, 2014, a Mercer County Grand Jury returned a four-count
indictment charging Lavin with three counts of second-degree official
misconduct, N.J.S.A. 2C:30-2(a) (counts one to three), and one count of third-
degree tampering with public records, N.J.S.A. 2C:28-7(a)(1) (count four).
Count one related to Lavin's alleged improper use of pepper spray on the
arrestee, count two related to the allegation that Lavin attempted to have two
subordinate officers file false reports in connection with the incident, and counts
three and four related to the allegation that Lavin himself filed false reports.
On October 5, 2015, Lavin was admitted into the PTI Program without a
guilty plea for a period of eighteen months, subject to the following conditions:
[Lavin] shall resign from his position as a Mercer County Sheriff's Officer effective October 2, 2015[,] and shall not seek future employment with Mercer County.
Effective October 2, 2015, Lavin tendered his resignation in accordance with
the condition of his PTI enrollment. Upon Lavin's successful completion of the
PTI program, the indictment was ultimately dismissed.
Lavin applied for ADR benefits, effective October 1, 2015, claiming
several major injuries to his knees that occurred while on active duty. On
A-0075-21 4 December 21, 2015, the Board denied "Lavin's request to file for [ADR]
benefits" because Lavin "left employment as a result of a disciplinary
termination, and not due to a disabling condition." According to the Board,
because "Lavin was required to resign from employment as part of the terms of
PTI and not seek future employment with Mercer County," Lavin "cannot
comply with the terms of . . . N.J.S.A. 43:16A-8, should the alleged disabling
condition, be found, to vanish or become materially diminished." 1
Lavin filed an administrative appeal of the denial, and the Board
transferred the matter to the Office of Administrative Law (OAL) for a hearing
as a contested case. The matter was assigned to an administrative law judge
(ALJ) who heard testimony from both parties "on the sole issue of eligibility to
apply for [ADR] benefits." At the hearing, "the parties agreed that the material
facts were not in dispute and the case could be handled as cross-motions for
summary decision."
On November 10, 2021, the ALJ issued an initial decision affirming the
Board's decision. In support, the ALJ analyzed N.J.S.A. 43:16A-8, directing
1 The Board also voted to forfeit the final three years of Lavin's service credit as "dishonorable service" because his "misconduct demonstrated a high degree of moral turpitude and there was a direct relationship between his misconduct and his duties as a Sheriff's Officer." That determination is not challenged on appeal. A-0075-21 5 that a public employee who retires due to a disability, but then recovers
sufficiently "to perform either his former duty or any other available duty in the
department which his employer is willing to assign to him . . . shall report fo r
duty." N.J.S.A. 43:16A-8(2). Relying on case law interpreting N.J.S.A.
43:16A-8(2), particularly Cardinale v. Board of Trustees, Police & Firemen's
Retirement System, 458 N.J. Super. 260 (App. Div. 2019), the ALJ concluded
that "[a] public employee whose permanent separation from service is caused by
his or her own misconduct and has not ceased working due to a disability, is
. . . not within the class of beneficiaries the disability retirement statutes are
intended to benefit." Applying the reasoning in Cardinale and other cases, the
ALJ determined that Lavin was "automatically prohibited from filing for a
disability retirement" given the undisputed facts surrounding his resignation.
Lavin filed exceptions and, on January 12, 2022, the Board adopted the ALJ's
decision in its entirety.
While the pension proceedings were ongoing, Lavin filed a petition for
PCR, seeking to vacate his entry into PTI based on "newly discovered evidence."
Lavin claimed that the State withheld Internal Affairs (IA) and disciplinary
records of potential witnesses in violation of Brady v. Maryland, 373 U.S. 83
(1963) and Giglio v. United States, 405 U.S. 150 (1972). In support, Lavin's
A-0075-21 6 attorney certified that during the prosecution of the criminal charges, the Mercer
County Prosecutor's Office (MCPO) and Mercer County repeatedly refused
Lavin's requests for IA and disciplinary records of Mercer County Sheriff's
officers.
According to counsel,
[t]he reason for these repeated requests, and the insistence that these records be provided, was the knowledge that several of the officers involved in the [IA] investigation against . . . Lavin had previous allegations, and/or sustained charges, of untruthfulness. These records were absolutely relevant to the credibility of those officers, should they testify against . . . Lavin, and absolutely relevant to any defense to the charges . . . Lavin may have offered at the time of trial.
Counsel averred that because of "the repeated refusal . . . and
representations . . . that those files did not contain what [Lavin] believed them
to [contain,] . . . Lavin ultimately entered into PTI with the hope of pursuing an
[ADR] pension."
Lavin specifically asserted that the failure to provide the following three
documents violated his due process rights: (1) a Mercer County Sheriff's Office
IA Complaint Form dated March 21, 2016, against Lieutenant Scott Schoelkopf,
who was Lavin's superior officer; (2) a March 2012 employee evaluation form
of Officer Ricardo Hernandez, one of the two officers involved in the subject
A-0075-21 7 incident; and (3) a Garrity2 warning form issued to Hernandez dated December
12, 2013.
In the first document, dated nearly six months after Lavin was admitted
into PTI, an officer lodged a complaint against Schoelkopf, stating:
Schoelkopf intentionally falsified my evaluation sheet in my personnel file by insinuating I had a racial issue during the year of 2012. This was done by attaching the statement "one issue this year regarding a racial issue that was addressed by U/S Ellison," and doing so [four] days after my signature was already affixed on the document. I believe this was not only done deceivingly, but maliciously as well, without any documentation to support his false statement!
In the second document – Hernandez' employee evaluation – Schoelkopf noted
that Hernandez allegedly "made up lies about a supervisor."3 The third
document – a Garrity warning – was issued to Hernandez in connection with an
investigation into "official misconduct [and] false reports," presumably the
subject incident.
2 Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (holding that the constitutional protection against coerced statements prohibited the use of statements obtained from law enforcement officers in subsequent criminal proceedings when the statements were obtained under threat of removal from office). 3 The document provided in the record is barely legible. Accordingly, we rely on the trial court's description of the document. A-0075-21 8 Following oral argument, the motion judge issued a written opinion dated
July 24, 2021, denying Lavin's petition. In his decision, the judge first posited
that whether "someone who has not been convicted of a crime as a result of
completing PTI" was entitled to PCR appeared to be an issue of first impression.
The judge reasoned that if Lavin suffered a due process violation, "[p]rinciples
of fundamental fairness may . . . require[] the court to allow [Lavin] to avail
himself of the protections of a [PCR] application" even though he was never
convicted. Here, however, the judge found that no such violation occurred.
Comparing the "nature and quality" of the evidence in Brady and Giglio
with the evidence presented by Lavin, the judge found that Lavin's evidence did
not "possess the certitude or force of proofs found in Brady [or] Giglio" to have
"a clear capacity to have affected the outcome." First, the judge found "[t]he
fact that . . . Hernandez was administered Garrity warnings ha[d] no material
relevance to . . . Lavin's case." The judge pointed out that Lavin's suggestion
otherwise was "akin to suggesting that Miranda warnings being given to a
suspect in and of themselves somehow affect[ed] the suspect's credibility."
Next, the judge characterized the "probative value, if any, of the internal
affairs documents" as "significantly diminished because the arguments
surrounding their materiality [were] based on supposition, conjecture and
A-0075-21 9 innuendo." The judge explained "[t]here [was] nothing to suggest that any of
the officers involved confessed to having pepper sprayed the young lady or that
they were promised anything if they testified against . . . Lavin." Further, the
judge found that the evidence presented in the documents would not have been
admissible at trial for impeachment purposes under N.J.R.E. 608. Additionally,
according to the judge, "[t]o the extent the [S]tate represented to defense counsel
there was no Brady or Giglio material in the internal affairs reports, the court's
assessment of the reports support[ed] the [S]tate's opinion."
The judge noted,
If defense counsel understandably wanted to know for herself what was contained in the [IA] reports, she could have engaged in some type of compulsory process such as a motion to compel documents for the court to conduct an in-camera review of the records. The record is devoid of any such motion practice. Defense counsel candidly stated she accepted the assistant prosecutor's representations because "she's an officer of the court[."] That decision may have been the courteous thing to do but not the wisest. It certainly weakens the argument that the [IA] reports are newly discovered evidence because any probative and relevant information contained in the reports could have been discovered through the aforementioned compulsory process.
These appeals followed.
A-0075-21 10 In the PCR appeal, No. A-0075-21, Lavin raises a single point for our
consideration:
THIS HONORABLE COURT SHOULD REVERSE THE DENIAL OF SGT. SEAN LAVIN'S MOTION FOR [PCR] AS THE [MOTION JUDGE] SHOULD HAVE FOUND THAT SGT. LAVIN WAS ENTITLED TO VACATE HIS ENTRY INTO THE [PTI] PROGRAM AS A RESULT OF NEWLY DISCOVERED EVIDENCE RISING TO THE LEVEL OF BRADY AND GIGLIO MATERIAL.
In the pension appeal, No. A-1880-21, Lavin raises the following point
for our consideration:
THE FINAL ADMINISTRATIVE ACTION ISSUED BY THE BOARD OF TRUSTEES OF THE [PFRS], UPHOLDING THE INITIAL DECISION OF THE . . . [ALJ] WAS ARBITRARY, UNREASONABLE, CAPRICIOUS, AND IT IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD. APPELLANT'S ULTIMATE RESIGNATION AND HIS AGREEMENT TO NOT PURSUE FUTURE EMPLOYMENT WITH ONLY THE COUNTY OF MERCER DOES NOT DICTATE A DETERMINATION THAT HE IS INELIGIBLE FOR AN ACCIDENTAL DISABILITY RETIREMENT.
II.
PCR APPEAL
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Afanador, 151 N.J. 41, 49 (1997) (citing State v.
A-0075-21 11 Preciose, 129 N.J. 451, 459 (1992)). "It is a safeguard to ensure that a defendant
was not unjustly convicted." Ibid. (citing State v. McQuaid, 147 N.J. 464, 482
(1997)). "'Post-conviction relief is a defendant's last opportunity to raise a
constitutional challenge to the fairness and reliability of a' state criminal
proceeding." State v. Hess, 207 N.J. 123, 144 (2011) (quoting State v. Feaster,
184 N.J. 235, 249 (2005)).
Pursuant to Rule 3:22-1, "[a]ny person convicted of a crime may, pursuant
to this rule, file with the criminal division manager's office of the county in
which the conviction took place a petition for post-conviction relief captioned
in the action in which the conviction was entered."
Rule 3:22-2 provides four grounds [4] for post- conviction relief: (a) substantial denial in the conviction proceedings of a defendant's state or federal constitutional rights; (b) a sentencing court's lack of jurisdiction; (c) an unlawful sentence; and (d) any habeas corpus, common-law, or statutory grounds for a collateral attack. A petitioner must establish the right to such relief by a preponderance of the credible evidence.
[Preciose, 129 N.J. at 459 (internal quotation marks omitted).]
4 Rule 3:22-2 was amended, effective September 1, 2018, to add a fifth ground for post-conviction relief: "a claim of ineffective assistance of counsel based on trial counsel's failure to file a direct appeal of the judgment of conviction and sentence upon defendant's timely request." A-0075-21 12 To be sure, post-conviction relief requires the entry of a conviction. See
Rule 3:22-1. A conviction is "established through a trial based on proof beyond
a reasonable doubt, or through the entry of a guilty plea." In re Commitment of
J.M.B., 197 N.J. 563, 577 (2009). Lavin was neither convicted nor sentenced.
Rather, all charges against him were dismissed following his successful
completion of the PTI Program.
"PTI is a 'diversionary program through which certain offenders are able
to avoid criminal prosecution by receiving early rehabilitative services expected
to deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015)
(quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The PTI Program is
governed by "procedures and guidelines established by Rule 3:28 and N.J.S.A.
2C:43-12." Ibid.
Under N.J.S.A. 2C:43-12(g), PTI "shall be available to a defendant
irrespective of whether the defendant contests his guilt of the charge or charges
against him" but "shall be available" to certain defendants "only upon entering
a plea of guilty." See also R. 3:28-5(b) (providing that PTI enrollment "shall
not be conditioned" upon entry of a guilty plea but such shall be required for
certain defendants). "For any such defendant, following the plea of guilty the
plea shall be held in an inactive status pending termination of supervisory
A-0075-21 13 treatment pursuant to subsection d. or e. of N.J.S.[A. ]2C:43-13. Upon
successful completion of the program of supervisory treatment the charges shall
be dismissed." N.J.S.A. 2C:43-12(g)(3).
Lavin was admitted into the PTI Program without the requirement that he
enter a guilty plea. Upon his successful completion of the program, the charges
were dismissed. As a result, there was no judgment of conviction entered or
sentence imposed. Because no judgment of conviction was entered, Lavin's
claims are not cognizable under the PCR rules. The fact that Lavin agreed to
certain PTI conditions does not transform his admission into the program into a
conviction or sentence. Moreover, Lavin identifies no authority or procedural
mechanism that would allow him to lodge such a challenge years after the
charges against him have been dismissed. 5
Even if we considered Lavin's contentions, we would reject them
substantially for the reasons articulated by the motion judge. Lavin asserts the
5 In Rodriguez v. State, 437 S.W.3d 450, 452 (Tenn. 2014), the Tennessee Supreme Court reached a similar conclusion in holding that "a guilty plea expunged after successful completion of judicial diversion is not a convictio n subject to collateral review under the Post-Conviction Procedure Act." Although out-of-state judicial decisions are not binding on this court, State v. Warriner, 322 N.J. Super. 401, 407 (App. Div. 1999), we may "acknowledg[e] the persuasiveness of a reasoned decision on analogous facts." Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581, 600 (App. Div. 2017). A-0075-21 14 three documents demonstrate "clear violations" of Brady and Giglio that warrant
granting PCR. In support, Lavin relies on Attorney General Law Enforcement
Directive No. 2019-6, requiring county policies to ensure compliance with
Brady and Giglio, as well as a report prepared by a "police practices expert"
retained by Lavin, discrediting the IA investigation into the subject incident and
disparaging the credibility of several Mercer County Sheriff's officers. Both
documents were considered by the motion judge.
In Brady, the United States Supreme Court held that "the suppression by
the prosecution of evidence favorable to an accused upon request violates
[constitutional principles of] due process . . . ." 373 U.S. at 87. "[T]o determine
whether a Brady violation has occurred: (1) the evidence at issue must be
favorable to the accused, either as exculpatory or impeachment evidence; (2) the
State must have suppressed the evidence, either purposely or inadvertently; and
(3) the evidence must be material to the defendant's case." State v. Brown, 236
N.J. 497, 518 (2019).
In Giglio, the United States Supreme Court extended Brady's scope to
include material evidence that would bear upon the credibility of the State's
witnesses. 405 U.S. at 153-54. The Court cautioned, however, "[w]e do
not . . . automatically require a new trial whenever 'a combing of the
A-0075-21 15 prosecutors' files after the trial has disclosed evidence possibly useful to the
defense but not likely to have changed the verdict . . . .'" Id. at 154 (quoting
United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968)). Rule 3:13-3(b)(1)
codifies the standards set forth in Brady and Giglio in our State.
"[E]vidence is material if there is a 'reasonable probability' that timely
production of the withheld evidence would have led to a different result at trial."
Brown, 236 N.J. at 520 (citing United States v. Bagley, 473 U.S. 667, 682
(1985)). "In deciding materiality, 'we examine the circumstances under which
the nondisclosure arose' and '[t]he significance of a nondisclosure in the context
of the entire record.'" Id. at 518-19 (alteration in original) (quoting State v.
Marshall, 123 N.J. 1, 199-200 (1991)). To determine the effect of the withheld
evidence "in the context of the entire record," a reviewing court considers "the
strength of the State's case, the timing of disclosure of the withheld evidenc e,
the relevance of the suppressed evidence, and the withheld evidence's
admissibility." Id. at 519 (internal quotation marks and citations omitted).
We agree with the motion judge that none of the documents meet the
standards enunciated in Brady or Giglio. The documents would not even be
considered Brady material under Attorney General Law Enforcement Directive
No. 2019-6, which defines potential Brady/Giglio material for investigative
A-0075-21 16 employees as information relating to a "sustained finding" where "a
preponderance of the evidence shows an officer violated any law, regulation,
directive, guideline policy or procedure." Even then, the Directive states that
"this does not necessarily mean the information will be disclosed." Clearly,
none of the documents meet the Directive's criteria.
The crux of Lavin's argument is that the three documents, which Lavin
believes contain "exculpatory and impeachable evidence," suggest that "there is
substantially more [exculpatory and impeachment evidence] if and when the full
and complete [IA] files are provided." However, as our Supreme Court directed
in State v. Higgs,
a defendant who seeks discovery of information from an [IA] file must first file a motion with the trial court requesting an in camera review of that file. The motion shall identify the specific category of information the defendant seeks and the relevance of that information to the defendant's case. A general allegation that the defendant is in search of information relevant to a law enforcement officer's credibility for impeachment purposes would be insufficient to obtain review of the file. The procedure should not be a fishing expedition into the disciplinary records of law enforcement.
An allegation that the information, if present, is relevant to the case is necessary for a defendant to obtain the trial court's in camera review of the file. . . . [I]n order for a trial court to grant a motion to conduct an in camera review of an [IA] file, the defendant must point to a specific category or type of evidence and
A-0075-21 17 assert that the evidence, if present in the file, has a relevant nexus to an issue in the case.
[253 N.J. 333, 358-59 (2023) (citations omitted).]
As the motion judge pointed out, "[t]he record is devoid of any such motion
practice."
III.
PENSION APPEAL
Our review of an administrative agency's determination is limited. Russo
v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will
sustain an agency's final decision "unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair support in the record."
Mount v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. 402, 418 (2018)
(quoting Russo, 206 N.J. at 27). In determining whether an agency's decision is
arbitrary, capricious, or unreasonable, we examine: (1) whether the agency's
decision conforms with relevant law; (2) whether the decision is supported by
substantial credible evidence in the record; and (3) whether in applying the law
to the facts, the "agency clearly erred in reaching [its] conclusion." In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 482-
83 (2007)). "The burden of proving that an agency action is arbitrary,
capricious, or unreasonable is on the challenger." Parsells v. Bd. of Educ. of
A-0075-21 18 Borough of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022), aff'd as
modified sub nom. Parsells v. Bd. of Educ. of Borough of Somerville, Somerset
Cnty., 254 N.J. 152 (2023).
We generally accord "substantial deference to an agency's interpretation
of a statute that the agency is charged with enforcing." Richardson v. Bd. of
Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). "Such deference
has been specifically extended to state agencies that administer pension
statutes[,]" because "a state agency brings experience and specialized
knowledge to its task of administering and regulating a legislative enactment
within its field of expertise." Piatt v. Police & Firemen's Ret. Sys., 443 N.J.
Super. 80, 99 (App. Div. 2015) (quoting In re Election Law Enf't Comm'n
Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). Nevertheless, we are not
bound by an agency's legal determinations, which we review de novo. Mount,
233 N.J. at 418-19.
This appeal is governed by N.J.S.A. 43:16A-8(2), which provides in
pertinent part that:
Any beneficiary under the age of [fifty-five] years who has been retired on a disability retirement allowance under this act, on his request shall, or upon the request of the retirement system may, be given a medical examination and he shall submit to any examination by a physician or physicians designated by
A-0075-21 19 the medical board once a year for at least a period of five years following his retirement in order to determine whether or not the disability which existed at the time he was retired has vanished or has materially diminished. If the report of the medical board shall show that such beneficiary is able to perform either his former duty or any other available duty in the department which his employer is willing to assign to him, the beneficiary shall report for duty . . . .
Lavin argues the Board acted in an arbitrary and capricious manner by
analogizing his case to Cardinale, 458 N.J. Super. at 260, where we interpreted
N.J.S.A. 43:16A-8(2) in a way that is detrimental to Lavin's position. In
Cardinale, we considered "whether, as a matter of law, a police officer is
ineligible for ordinary disability benefits [6] as a member of the [PFRS] if the
officer separates from service by irrevocably resigning from employment to
resolve pending drug-related disciplinary charges." Id. at 262. There, Cardinale
had voluntarily and irrevocably resigned from his position as a police officer
under a settlement agreement to resolve a disciplinary action stemming from his
suspension for a positive drug test. Id. at 264-65. To answer the question
presented, "we recogniz[ed] that N.J.S.A. 43:16A-8(2) requires disability
retirees to return to duty once their disability has 'vanished or has materially
6 "Disability retirement applicants generally apply for ordinary or accidental disability retirement benefits." In re Adoption of N.J.A.C. 17:1-6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. 386, 397 (App. Div. 2018). A-0075-21 20 diminished'" and acknowledged that "permanently resigning from employment
makes returning to duty impossible." Id. at 262-63 (quoting N.J.S.A. 43:16A-
8(2)).
We held 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.
[Id. at 263.]
In so holding, we rejected Cardinale's claim that the PFRS Board "acted
arbitrarily by refusing to process his application seeking ordinary disability
benefits," ibid., and deemed Cardinale's purported disability "irrelevant to our
holding that his irrevocable resignation made him ineligible for benefits in the
first place," id. at 268. We noted "[t]he obstacle for Cardinale is not his
A-0075-21 21 disability, but rather, his irrevocable resignation" because "[t]he purpose of
N.J.S.A. 43:16A-8(2) is to return the previously disabled retiree to work as if
that individual had never suffered a disability or interruption of service." Id. at
270. See also In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. at 394-95
("[V]oluntary or involuntary termination of employment, for non -disability
reasons, generally deems a member ineligible for disability benefits. Such a
holding comports with the existing overall framework of the enabling,
eligibility, and rehabilitation statutes, and policies applicable to the various
State public retirement systems."). We reasoned that "N.J.S.A. 43:16A-8(2)
balances a worker's interest with those of an employer and the public by
requiring PFRS workers — upon rehabilitation — to forgo the benefits and
return to work." Cardinale, 458 N.J. Super. at 270. See also In re Terebetski,
338 N.J. Super. 564, 570 (App. Div. 2001) ("Pursuant to the plain language of
N.J.S.A. 43:16A-8, once a person is determined no longer disabled, the
appointing authority is required to return the officer to active duty . . . .").
Critically, in Cardinale, we determined that N.J.S.A. 43:16A-8(2) dictates
that this process—whereby a recipient recovers from his or her disability and
returns to work—is the only way the Board can cut off disability benefits. 458
N.J. Super. at 271. Consequently, we ruled in Cardinale that allowing an
A-0075-21 22 employee to seek disability benefits in a situation where he or she had
irrevocably resigned would prevent the State from ever cutting off disability
benefits, even upon recovery, because the employee could never "return" to his
or her former employment. Id. at 273. Such an outcome "would violate public
policy, contravene the rehabilitation statute, and encourage abuse of the
disability retirement system." Ibid. Accordingly, the Cardinale's irrevocable
resignation rendered him ineligible for participation in the disability pension
scheme. Ibid.
Contrary to Lavin's contention, Cardinale is controlling. It is now settled
law that "an irrevocable resignation from employment, in and of itself, renders
a member ineligible for ordinary or accidental retirement benefits." Rooth v.
Bd. of Trs., Pub. Emps.' Ret. Sys., 472 N.J. Super. 357, 367 (App. Div. 2022)
(citing In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. at 404). Lavin
claims the decision to prevent him from receiving disability benefits because of
"the criminal and administrative charges is premature" because "no
determination has ever been made as to whether [he] is in fact permanently and
totally disabled due to a[n] on-duty injury." However, the fact that Lavin is
forever barred from future employment with Mercer County renders him
A-0075-21 23 ineligible for disability benefits as a matter of law and renders his claimed
disability "irrelevant." Cardinale, 458 N.J. Super. at 268.
We also reject Lavin's claim that confining the future employment ban to
Mercer County makes a difference because he could potentially "return to duty
as a police officer" anywhere other than Mercer County. N.J.S.A. 43:16A-8
requires that an employee who recovers from a disabling condition must be able
to be rehired by his former employer in the same or similar position. See In re
Terebetski, 338 N.J. Super. at 568-69 ("Plainly, the Legislature intended that
persons on disability retirement who are no longer disabled . . . be returned to
either their prior positions or any available duty that their employers are willing
to assign to them.").
We acknowledge that "pension statutes should be liberally construed and
administered in favor of the persons intended to be benefited." Francois v. Bd.
of Trs. Pub. Emps.' Ret. Sys., 415 N.J. Super. 335, 349 (App. Div. 2010)
(internal quotation marks omitted) (quoting Klumb v. Bd. of Educ. of
Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009)).
"However, [i]n spite of liberal construction, an employee has only such rights
and benefits as are based upon and within the scope of the provisions of the
statute." Ibid. (alteration in original) (internal quotation marks omitted)
A-0075-21 24 (quoting Casale v. Pension Comm'n of Emps.' Ret. Sys. of Newark, 78 N.J.
Super. 38, 40 (Law Div. 1963)). "An inappropriate allowance of benefits tends
'to place a greater strain on the financial integrity of the fund in question and its
future availability for those persons who are truly eligible for such benefits.'"
Id. at 350 (quoting Smith v. State, Dept. of Treasury , 390 N.J. Super. 209, 215
(App. Div. 2007)).
A PFRS member, like Lavin, who resigned from work and irrevocably
agreed to forego future employment as a condition of his admission into the PTI
program to resolve criminal charges "is not within the scope of the provisions
of N.J.S.A. 43:16A-8(2)" and "is not of a class 'intended to be benefited' by the
statute." Cardinale, 458 N.J. Super. at 272 (quoting Geller v. Dep't of Treasury,
53 N.J. 591, 597-98 (1969)). Allowing Lavin to obtain benefits under these
circumstances "would drain, weaken, and overburden the disability retirement
system available to PFRS members." Id. at 273.
Affirmed.
A-0075-21 25