IN RE N.J.A.C. 17:2-6.5 (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2059-18

APPROVED FOR PUBLICATION

IN RE N.J.A.C. 17:2-6.5. June 21, 2021

_____________________ APPELLATE DIVISION

Argued April 21, 2021 – Decided June 21, 2021

Before Judges Ostrer, Accurso and Vernoia.

On appeal from the adoption of amendments to

N.J.A.C. 17:2-6.5 by the Board of Trustees, Public

Employees' Retirement System.

Jason E. Sokolowski argued the cause for appellant

New Jersey Education Association (Zazzali, Fagella,

Nowak, Kleinbaum & Friedman, attorneys; Richard A.

Friedman, of counsel and on the briefs).

Robert E. Kelly, Deputy Attorney General, argued the

cause for respondent Board of Trustees, Public

Employees' Retirement System (Gurbir S. Grewal,

Attorney General, attorney; Sookie Bae, Assistant

Attorney General, of counsel; Robert E. Kelly, on the

brief).

The opinion of the court was delivered by

OSTRER, P.J.A.D.

To receive an accidental disability pension, a public employee must

prove that his or her "disability was not the result of his [or her]

willful negligence." N.J.S.A. 43:15A-43(a). For over fifty years, the Public

Employees' Retirement System (PERS) Board defined "[w]illful negligence"

as "1. [a] [d]eliberate act or deliberate failure to act; or 2. [s]uch conduct as

evidences reckless indifference to safety; or 3. [i]ntoxication, operating as the

proximate cause of injury." N.J.A.C. 17:2-6.5(a) (2017); see N.J.A.C. 17:2

hist. n. (stating that these rules were adopted before September 1, 1969). In

2017, the Board amended the first alternative to read: "Deliberate act or

deliberate failure to act that reflects an intentional or purposeful . . . deviation

from the standard of care exercised by a reasonable person in similar

circumstances." 50 N.J.R. 646(a) (Dec. 13, 2017) (adoption); see also 49

N.J.R. 2189(a) (July 17, 2017) (proposal). 1 On appeal, the New Jersey

Education Association asks us to invalidate the amendment, arguing that the

change extends the statute beyond its intended meaning, and thereby

1

The adopted rule mistakenly includes an extra "or" — that is, it defines

"[w]illful negligence" as a "[d]eliberate act or deliberate failure to act that

reflects an intentional or purposeful or deviation from the standard of care

exercised by a reasonable person in similar circumstances." N.J.A.C. 17:2-

6.5(a)(1) (emphasis added). The words "intentional or purposeful" make sense

only when they directly modify "deviation." Although the Board agreed on

appeal that it inserted the second "or" by mistake, it has decided to await

resolution of this case to correct the error (which it could do by formal

amendment or by seeking technical correction through the Office of

Administrative Law. See N.J.A.C. 1:30-2.7 (stating procedure for

administrative correction of "obvious, easily recognizable, or apparent" error)).

We interpret the regulation without reference to the extra "or."

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disqualifies public employees from receiving accidental disability benefits who

are properly qualified for such benefits under the statute.

We agree and invalidate the Board's 2018 amended "willful negligence"

definition because it strays from the Legislature's intent, and because the

Board's own reasoning supporting its rule is arbitrary and self-contradictory.

I.

We presume a regulation is valid, N.J. State League of Muns v. Dep't of

Cmty. Affs, 158 N.J. 211, 222 (1999), and review it narrowly and deferenti-

ally, In re N.J.A.C. 12:17-2.1, 450 N.J. Super. 152, 166 (App. Div. 2017). We

defer to an agency's rule-making because we recognize that "certain subjects

are within the [agency's] peculiar competence." In re Amend. of N.J.A.C.

8:31B-3.31 & N.J.A.C. 8:31B-3.51, 119 N.J. 531, 543 (1990). When a statute

is "silent or ambiguous" about an issue, we may not replace an agency's

"permissible" interpretation of that statute with our own view. Kasper v. Bd.

of Trs. of the Tchrs.' Pension & Annuity Fund, 164 N.J. 564, 581 (2000)

(quoting 2 Am. Jur. 2d Administrative Law § 525 (1994)).

But our deference has limits. We accord "less deference" to a newly

minted agency interpretation, "which has not previously been subjected to

judicial scrutiny or time-tested agency interpretation." See id. at 580 (quoting

2 Am. Jur. 2d Administrative Law § 524 (1994)). That is especially so when

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the new interpretation departs from a prior, long-standing interpretation. See

Safeway Trails, Inc. v. Furman, 41 N.J. 467, 484 (1964). In Safeway Trails,

the Court reviewed an Attorney General's opinion that reversed a prior

opinion. The Court stated that if an agency's statutory "construction is not

uniform and consistent, it will be taken into account only to the extent that it is

supported by valid reasons." Ibid. (quoting Burnet v. Chi. Portrait Co., 285

U.S. 1, 16 (1932)). Furthermore, we owe no deference at all to an agency's

interpretation of judicial precedent. Bowser v. Bd. of Trs., Police & Firemen's

Ret. Sys., 455 N.J. Super. 165, 171 (App. Div. 2018).

At bottom, an agency's rulemaking "must be reasonable and not

arbitrary" and must further the Legislature's goals. Pascucci v. Vagott, 71 N.J.

40, 50 (1976). We shall set aside a regulation that is "unreasonable or

irrational," Bergen Pines Cnty. Hosp. v. N.J. Dep't of Hum. Servs., 96 N.J.

456, 477 (1984), or that "violate[s] the enabling act's express or implied

legislative policies," Williams v. N.J Dep't of Hum. Servs., 116 N.J. 102, 108

(1989); see also In re N.J. Individual Health Coverage Program's Readoption

of N.J.A.C. 11:20-1, 179 N.J. 570, 579 (2004) (stating that "[a]dministrative

regulations 'cannot alter the terms of a statute or frustrate the legislative

policy'" (quoting Med. Soc'y of N.J. v. N.J. Dep't of L. & Pub. Safety, 120 N.J.

18, 25 (1990))); In re Amend. of N.J.A.C. 8:31B-3.31, 119 N.J. at 543-44

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(stating that appellate courts determine whether a rule "is arbitrary, capricious,

unreasonable, or beyond the agency's delegated power"). Ultimately, "we are

'in no way bound by an agency's interpretation of a statute or its determination

of a strictly legal issue.'" Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,

206 N.J. 14, 27 (2011) (quoting Mayflower Sec. Co. v. Bureau of Sec., 65 N.J.

85, 93 (1973)).

II.

To determine if the Board's amendment conforms to the Legislature's

express or implied policy, we turn first to the statute. The PERS statute

withholds accidental-disability pensions from employees whose disability

results from their "willful negligence," N.J.S.A. 43:15A–43(a) — but the

statute does not define "willful negligence," let alone a "deliberate act or

deliberate failure to act." Neither do the statutes for the Police and Firemen's

Retirement System (PFRS), the Teachers' Pension & Annuity Fund (TPAF),

and the State Police Retirement System (SPRS), which likewise deny

accidental-disability pensions because of willful negligence. See N.J.S.A.

18A:66-39(c) (TPAF); N.J.S.A. 43:16A-7(a)(1) (PFRS); N.J.S.A. 53:5A-10(a)

(SPRS).2 Because the PERS statute's plain meaning is unclear, we turn to

2

The "willful negligence" disqualifier has a long history. For example, we

find it in the 1921 statute of the old State Employees' Retirement System. L.

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other sources, including related provisions of law, for interpretative help. See

In re H.D., 241 N.J. 412, 418 (2020).

The Legislature did define "willful negligence" in a related provision of

law: the Workers' Compensation Act. As adopted in 1911, the act provided:

"For the purposes of this act, willful negligence shall consist of (1) deliberate

act or deliberate failure to act, or (2) such conduct as evidences reckless

indifference to safety, or (3) intoxication, operating as the proximate cause of

injury." L. 1911, c. 95, § 3, ¶ 23.3 The PERS regulation that stood for over

fifty years tracked the Workers' Compensation Act's original language. So did

regulations dealing with the three other major public pension systems, see

N.J.A.C. 17:3-6.5(a) (TPAF); N.J.A.C. 17:4-6.5(a) (PFRS); N.J.A.C. 17:5-5.4

(2018) (SPRS), until, in 2019, SPRS adopted the same amendment PERS did,

see 51 N.J.R. 349(a) (Mar. 4, 2019) (proposal); 51 N.J.R. 1059(a) (June 17,

1921, c. 109, § 11 (codified at N.J.S.A. 43:14-31, then repealed by L. 1954, c.

84, § 4).

3

The Legislature amended the Workers' Compensation Act in 1979 to add a

fourth category, "(4) unlawful use of a controlled dangerous substance as

defined in the 'New Jersey Controlled Dangerous Substances Act,' P. L. 1970,

c. 226 (C.24:21-1 et seq.)." L. 1979, c. 283, § 12. That change did not find its

way into the pension regulations.

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2019) (adoption). 4 Notably, when PFRS readopted its regulations in 2019, it

did not adopt the PERS amendment. See 51 N.J.R. 270(a) (Feb. 19, 2019).

The PERS Board's initial decision to import the Workers' Compensation

Act's definition conformed with judicial interpretation of the Workers'

Compensation and pension laws. The Workers' Compensation Act's and the

accidental-disability pension law's shared goal to assist disabled workers led

our Court to consistently interpret common concepts in the two laws. See

Gerba v. Bd. of Trs. of the Pub. Emps.' Ret. Sys., 83 N.J. 174, 181-82 (1980)

(discussing earlier applications of Workers' Compensation Act's concept of

causation to PERS statute); Roth v. Bd. of Trustees, Pub. Emps,' Ret. Sys., 49

N.J. Super. 309, 319-20 (App. Div. 1958) (applying Workers' Compensation

Act's concept of causation to PERS statute).

Even if these laws are not strictly in pari materia, both secure benefits to

workers disabled on the job. And both erect an impediment to workers who

are willfully negligent. This justifies interpreting "willful negligence"

consistently. See Shambie Singer & Norman J. Singer, Sutherland Statutory

Construction, § 51:3 (7th ed. 2020) (stating that how one views a statute's

"object or purpose" is more important than its "subject matter" in deciding if

4

The SPRS regulation does not include the extra "or" found in the PERS

regulation. See supra note 1.

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"different statutes are closely enough related to justify interpreting one in light

of the other"); see also Brewer v. Porch, 53 N.J. 167, 174 (1969) (stating that

"[a]cts in pari materia as well as related acts not strictly in pari materia, should

be examined" to ascertain a statute's meaning); Bank of Montclair v.

McCutcheon, 107 N.J. Eq. 564, 567 (Prerog. Ct. 1930) (stating that "statutes

relating to the same or similar subject-matter are to be construed together").

We recognize that over the years, the Legislature has stepped in to

decouple the two laws in some respects. See Gerba, 83 N.J. at 182. But not as

the laws relate to willful negligence. The Legislature's inaction on this point

suggests its approval of uniform treatment of the "willful negligence"

provisions; "an agency's construction of a statute over a period of years

without legislative interference will under appropriate circumstances be

granted great weight as evidence of its conformity with the legislative intent."

Malone v. Fender, 80 N.J. 129, 137 (1979). Thus, we conclude that the

Legislature intended the Workers' Compensation Act's definition of "willful

negligence" to apply to the PERS statute.

That leads us to ask what the Legislature meant when it defined "willful

negligence" in the Workers' Compensation Act as a "deliberate act or

deliberate failure to act" (the first of three alternative definitions in the

Workers' Compensation Act's definition and the prior PERS regulation).

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In passing the 1911 statute, the Legislature largely followed a study

commission's recommendations. See Comm'n on Employers' Liab., Message

of the Governor of New Jersey Transmitting to the Legislature the Report of

the Commission on Employers' Liability (1911).

The 1911 Act created a two-tiered system. One of those tiers established

a new system of elective compensation for injuries or death in the course of

employment "in all cases except when the injury or death is intentionally self-

inflicted, or when intoxication is the natural and proximate cause of injury."

L. 1911, c. 95, § 2, ¶ 7.

For those workers left outside the elective compensation system, the new

law made it easier to sue negligent employers for damages. At the time,

workers suing their employers faced defenses based on contributory

negligence, assumption of risk, and fellow-employees' negligence. See

Comm'n on Employers' Liab. at 9-11. As the Commission recommended, the

1911 law abolished the last two defenses, and weakened the first by limiting it

to cases where the employee is "willfully negligent." L. 1911, c. 95, § 1, ¶ 1-

2.5

5

See Taylor v. Seabrook, 87 N.J.L. 407, 408 (Sup. Ct. 1915) (noting that

"willful negligence" is only a defense to a claim under section 1 of the 1911

law).

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The Commission explained that it was not prepared to jettison

contributory negligence entirely. Comm'n on Employers' Liab. at 9. Rather, it

stated: "In order . . . to prevent the nonsuiting of the injured employe [sic] on

a mere technicality, i.[e.], where his negligence is relatively trivial, we

recommend the modification of the present law as stated in our proposed bill

requiring the proof of 'willful negligence.'" Id. at 10. The Commission

appeared to adopt the common-law meaning of the term, stating, "While,

technically, these words are a contradiction of terms, we are advised that they

have a well-established meaning in judicial procedure." Ibid.

In light of the Commission's expression of intent, we must try to

harmonize the statutory definition, including its reference to deliberate acts

and deliberate failures to act, with the "well-established" judicial interpretation

of "willful negligence." According to case law and authoritative references,

that judicial interpretation evidently defined "willful negligence" to include an

element of recklessness.

The Black's Law Dictionary at the time defined "[w]illful negligence" by

placing it in the hierarchy of fault above "gross negligence," stating, "Though

rejected by some courts and writers as involving a contradiction of terms, this

phrase is occasionally used to describe a higher or more aggravated form of

negligence than 'gross.'" Black's Law Dictionary 811 (2d ed. 1910). "Gross

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negligence," as it related to personal-injury claims, meant negligence that

"evidence[d] a reckless disregard of human life, or of the safety of persons

exposed to its dangerous effects, or that entire want of care which would raise

the presumption of a conscious indifference to the rights of others which is

equivalent to an intentional violation of them." 6 Ibid. By contrast, the term

"[w]illful negligence" — when applied to "a higher or more aggravated form

of negligence" — "mean[t] a willful determination not to perform a known

duty, or a reckless disregard of the safety or the rights of others, as manifested

by the conscious and intentional omission of the care proper under the

circumstances." Ibid.

The old Black's Law definition of "[w]illful negligence" did not mention

"deliberate act or deliberate failure to act." Ibid. But it defined "deliberate,"

as used "in describing a crime," to include actions that involve a "weighing of

6

We recognize that "rigid classifications of the 'degrees of negligence have

been abandoned' in our case law," In re N.J.A.C. 12:17-2.1, 450 N.J. Super. at

169 (quoting Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6

(App. Div. 2009), aff'd, 203 N.J. 286 (2010)). Nonetheless, "gross negligence"

is still characterized as occupying "the upper reaches of negligent conduct ."

Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 364 (2016) (quoting

Parks v. Pep Boys, 282 N.J. Super. 1, 17 n.6 (App. Div. 1995)). "[G]ross

negligence is an indifference to another by failing to exercise even scant care

or by thoughtless disregard of the consequences that may follow from an act or

omission." Id. at 364-65. "[N]egligence, gross negligence, recklessness, and

willful conduct fall on a spectrum"; and "reckless and willful conduct are

degrees of civil culpability greater than gross negligence." Id. at 365-66.

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motives and consequences." Id. at 348. The adjective "conveyed" the idea

"that the perpetrator weighs the motives for the act and its consequences, the

nature of the crime, or other things connected with his intentions, with a view

to a decision thereon; that he carefully considers all these; and that the act is

not suddenly committed." Ibid. A "deliberate" act, then, was more akin to an

act of "[w]illful negligence" than to one of "[g]ross negligence."

And the Restatement of Torts noted that "[c]onduct which is in reckless

disregard of a legally protected interest of others is thus constantly spoken of

as a form of negligence, the phrases used being 'reckless,' 'wanton' and 'wilful

negligence,' as distinguished from 'negligence' or 'mere negligence.'"

Restatement of the Law, Torts § 282 cmt. d, special note (Am. Law. Inst.

1939) (emphasis added). 7

Case law also treated "willful negligence" as involving an element of

recklessness. In Tarasewicz v. Bowker, 5 N.J. Super. 399, 401-02 (App. Div.

1949), we addressed the meaning of "willful negligence" in reviewing the

common-law rule that made a private automobile-operator liable to a licensee

only for acts of willful or wanton negligence or intentional harm. Ibid. We

7

While acknowledging the common usage, the Restatement advocated

drawing a line between negligence and reckless conduct, because the law treats

reckless conduct differently from negligence in various respects. Ibid.

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held that the defendant was not willfully negligent when the plaintiffs fell or

jumped from the running boards of the defendant's vehicle. We noted that the

former Supreme Court, in Rose v. Squires, 101 N.J.L. 438, 440-41 (Sup. Ct.

1925), aff'd, 102 N.J.L. 449 (E. & A. 1926), "treated 'willfully negligent' as the

equivalent of 'taking a chance.'" Tarasewicz, 5 N.J. Super. at 402. But simply

taking a chance was not enough, as we explained: "[S]ome chances are better

than others. In order to hold [a] defendant liable in the absence of intentional

injury, his conduct must have a reckless quality and the probability of serious

consequences must be apparent." Ibid.

We have found no New Jersey reported opinion, and the parties point to

none, directly interpreting the "[d]eliberate act" prong in any case involving

either the Workers' Compensation Act or the pension laws. But the Court has

indicated generally that recklessness is an essential element of the willful-

negligence definition. In Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189, 195 (2007), the Court cited PFRS's "willful negligence"

definition, which as noted matched the pre-2018 PERS definition, to support

its statement that "the disability cannot be the result of the member's 'willful

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negligence.' That is, the member cannot, by action or inaction, have brought

about his disability through his reckless indifference to safety." 8

Furthermore, Nebraska's courts, interpreting a "[w]illful negligence"

definition (from its workers' compensation statute) that closely mirrors ours,

have interpreted a "deliberate act" much more narrowly than has the Board in

the challenged regulation. Much like our Workers' Compensation Act, the

Nebraska statute defines "[w]illful negligence" to mean "(a) a deliberate act,

(b) such conduct as evidences reckless indifference to safety, or (c)

intoxication at the time of the injury, such intoxication being without the

consent, knowledge, or acquiescence of the employer or the employer's agent."

Neb. Rev. Stat. § 48-151(7). In Spaulding v. Alliant Foodservice, Inc., 689

N.W.2d 593, 603 (Neb. Ct. App. 2004), the court concluded that "'a deliberate

act' . . . refers to an employee's deliberate injury of himself or herself."

In reaching this conclusion, the Spaulding court relied on Guico v. Excel

Corp., 619 N.W.2d 470 (Neb. 2000), in which the Nebraska Supreme Court

discussed "willful negligence." Ibid. In Guico, a worker dispensed with

8

In Brooks v. Bd. of Trs., Pub. Emps.' Ret. Sys., 425 N.J. Super. 277, 284 n.2

(App. Div. 2012), we determined that the actions of a custodian who injured

his back carrying a three-hundred-pound weight-training bench "did not rise to

the level of 'willful negligence'" under the old definition, even if they

amounted to ordinary negligence. However, we did not explore the elements

of "willful negligence" in detail.

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wearing safety gloves that he knew were required. Ibid. Guico, the worker,

said that he switched from a task that did not require the gloves to one that did;

he was rushed; and he "'never imagined' that he would be injured." Guico, 619

N.W.2d at 473-74. The Nebraska Supreme Court held that Guico "acted

negligently and carelessly," but that "mere negligence is not the equivalent of

'willful negligence' . . . , which consists of conduct which manifests a reckless

disregard for the consequences coupled with a consciousness that injury will

naturally or probably result." Id. at 478. Furthermore, the court noted that

although Guico knowingly disregarded the safety rule, "there is no contention

that [he] injured himself deliberately or as a consequence of intoxication." Id.

at 476. The Spaulding court interpreted this statement to imply that a

"deliberate act" refers to deliberate self-injury. Spaulding, 689 N.W.2d at 603.

See also Guico, 619 N.W.2d at 480 (Stephan, J., dissenting) (stating that

worker's testimony that he never "imagined" he would be injured "would lead

to a reasonable inference that Guico did not commit 'a deliberate act'

constituting willful negligence").

Moreover, Nebraska courts hold — as we hold in this case — that not

every intentional violation of a regulation or standard of care suffices to

establish willful negligence. In Estate of Coe v. Willmes Trucking, L.L.C.,

689 N.W.2d 318, 326 (Neb. 2004), a trucker, aware of a federal regulation that

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required him to rest eight hours after driving ten, drove seventeen consecutive

hours (with brief stops) before he crashed. The court affirmed a finding of

willful negligence. Id. at 327. But the court also distinguished less egregious,

though no less intentional, violations of standards of care — such as "driving 5

miles over the speed limit" or violating a regulation because of "a momentary

lapse of judgment" — that did not constitute willful negligence. Id. at 326-27.

We are convinced the Board's amendment enables it to disqualify

accidental-disability applicants more easily than the Legislature intended. The

regulation omits the recklessness element evident in the case law and other

sources. It also omits the fact that a deliberate actor considers the

consequences that likely will follow. Under the amended definition, no matter

how minor the standard of care or how trivial the deviation, the Board could

deem employees "willfully negligent" and disqualify them from accidental

disability pensions if they "intentional[ly] or purposeful[ly] . . . deviate[] from

the standard of care exercised by a reasonable person in similar

circumstances." Such a formulation violates the Legislature's explicit goal of

creating a standard that excluded "relatively trivial" acts of negligence. It

would disqualify workers for acts of negligence more benign than gross

negligence, even though the 1910 Black's Law Dictionary definition defined

"[w]illful negligence" as something worse than "[g]ross negligence," which

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itself includes recklessness or conscious indifference to others. 9 Even

assuming for argument's sake that "[d]eliberate act" does not require an intent

to harm oneself, it means more than just any intentional violation of a stan dard

of care.

The Board also undercut its rulemaking when it addressed the NJEA's

objection to the Board's proposal. The NJEA asserted "that the proposed

section 'attempts to change the definition of willful negligence, which has been

defined as the equivalent of recklessness, into simple negligence.'" 50 N.J.R.

646(a) cmt. 9 (Jan. 16, 2018). In response, the Board insisted that its "willful

negligence" definition made reckless disregard of others' safety an essential

element. The Board stated that a "reckless" deviation of a standard of care is

included in the "deliberate act" amendment:

The current language of N.J.A.C. 17:2-6.5(a)[(1)]

defines willful negligence as a deliberate act or

9

We acknowledge that the old "[w]illful negligence" definition also referred

to "the conscious and intentional omission of the care proper under the

circumstances," which seems similar to the Board's formulation, "an

intentional or purposeful . . . deviation from the standard of care exercised by a

reasonable person in similar circumstances." But the dictionary definition

preceded its clause with "a willful determination not to perform a known duty,

or a reckless disregard of the safety or the rights of others." A "willful

determination" is evidently more than an intentional or purposeful action.

"Determination" suggests a knowing and purposeful action. "Willful" adds

"[p]roceeding from a conscious motion of the will; intending the result which

actually comes to pass; designed; intentional; malicious." Black's Law

Dictionary 1228 (2d ed. 1910).

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deliberate failure to act. The additional language

simply expounds upon paragraph (a)[(1)] by stating

that such acts or failures to act are deliberate because

they reflect a reckless deviation from the standard of

care exercised by a reasonable person in similar

circumstances.

[Ibid. (emphasis added).]

However, the adopted regulation does not include the "reckless" modifier

when describing deviations from the standard of care. The disconnect between

the agency's rule and its explanation further convinces us that the Board's rule -

making is arbitrary and irrational.

Furthermore, the agency's answer included a dictionary definition that

referenced recklessness, again disclosing an intention to encompass only those

intentional deviations that recklessly disregard others' safety. The agency

stated: "This added language reflects standard legal definitions of willful

negligence. For example, Black's Law Dictionary, 10th Ed., defines willful

negligence as 'A conscious, voluntary act or omission in reckless disregard of a

legal duty and of the consequences to another party, who may typically recover

exemplary damages.'" 10 Ibid. (emphasis added).

10

We note that the Black's Law Dictionary edition quoted defines "willful

negligence" as both "advertent negligence" and "gross negligence"; the

language the Board quoted is the second alternative definition of "gross

negligence." Black's Law Dictionary 1197-98 (10th ed. 2014). "[A]dvertent

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Yet, as we have discussed, the agency's current rule fails to convey this

intent. The rule does not require proof of a reckless disregard of others' safety;

simply put, any intentional or purposeful deviation from a standard of care will

suffice to disqualify a pension applicant.

Finally, nothing suggests that the Legislature intended "[w]illful

negligence" to mean one thing under PERS and SPRS, and another thing under

PFRS and TPAF, given the similarity of the pension laws and their common

goals. See Bank of Montclair, 107 N.J. Eq. at 567 (stating that, barring a

contrary indicated intent, "it must be presumed" that when the Legislature used

the same word in multiple statutes forming a unified system, "the Legislature

used the word in the later statute in the same sense as in the other earlier

statutes"). The major pension systems' inconsistent definitions highlight the

arbitrariness of the PERS Board's action.

In sum, the agency's rule disqualifies workers for conduct more trivial

than what the Legislature contemplated in the Workers' Compensation Act and

the pension laws. Also, the Board's stated reasoning does not support its

chosen formulation. For these reasons, the agency's amendment to N.J.A.C.

17:2-6.5(a)(1) is arbitrary, capricious and unreasonable.

negligence" is defined as "[n]egligence in which the actor is aware of the

unreasonable risk that he or she is creating." Id. at 1196.

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Therefore, the agency's amended rule is invalid. The prior rule is

reinstated. Our decision does not prevent the Board from adopting a clarifying

amendment to the rule consistent with the Legislature's intent.

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