David Roe v. Board of Trustees, Etc.

NOT FOR PUBLICATION WITHOUT THE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-3839-21

DAVID ROE,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

POLICE AND FIREMEN'S

RETIREMENT SYSTEM,

Respondent-Respondent.

____________________________

Argued February 12, 2024 – Decided March 11, 2024

Before Judges Mawla, Chase, and Vinci.

On appeal from the Board of Trustees of the Police and

Firemen's Retirement System, Department of the

Treasury, PFRS No. xxxxxx.

Cathlene Y. Banker argued the cause for appellant (C.

Elston & Associates, LLC, attorneys; Catherine Mary

Elston, of counsel; Cathlene Y. Banker, on the briefs).

Juliana C. DeAngelis, Legal Counsel, argued the cause

for respondent (Nels J. Lauritzen, Deputy Director of

Legal Affairs, attorney; Juliana C. DeAngelis, on the

brief).

PER CURIAM

Appellant David Roe, a police officer employed by the City of Clifton

("Clifton"), appeals from the January 10, 2023 final administrative

determination of the Board of Trustees (the "Board") of the Police and Firemen's

Retirement System of New Jersey ("PFRSNJ") in which the Board determined

appellant's application for accidental disability retirement benefits ("ADR")

would be held in abeyance pending final resolution of his employment

discrimination lawsuit against Clifton. Having considered the record and

applicable legal standards, we affirm.

Appellant was hired by Clifton and enrolled in PFRSNJ effective January

1, 2007. On November 11, 2020, appellant and other Clifton police officers

filed a civil lawsuit against Clifton alleging violations of the New Jersey Law

Against Discrimination, N.J.S.A. 10:5-1 to -49, and other causes of action,

captioned as Samuel Arnowitz v. City of Clifton, Docket No. PAS-L-3941-20

(Law Div. filed Nov. 11, 2020) (the "Lawsuit"). The Lawsuit is currently

pending and seeks damages for time loss and loss of past and future wages,

among other relief.

On December 27, 2020, appellant was injured in a shooting incident while

on duty. On March 11, 2021, he filed an application for ADR benefits with

A-3839-21

2

PFRSNJ. On December 16, 2021, the Division of Pensions and Benefits

informed appellant his application for ADR benefits would be held in abeyance

pending final resolution of the Lawsuit, pursuant to N.J.A.C. 17:1-6.2(d).

On March 3, 2022, appellant filed a petition with the Board, pursuant to

N.J.S.A. 52:14B-8, seeking a declaratory ruling that his application should not

be held in abeyance pending final resolution of the Lawsuit. On August 15,

2022, appellant filed his initial Notice of Appeal requesting "review of the

inaction of the Board . . . to respond to [his] request for a declaratory ruling filed

on March 3, 2022."

On December 12, 2022, the Board considered appellant's petition for a

declaratory ruling and voted to deny the petition. By letter dated December 21,

2022, the Board advised appellant that it determined his application would

continue to be held in abeyance and the "the Board Secretary [would] prepare

findings of fact and conclusions of law that [would] be presented to the Board

at its meeting of January 9, 2023, for discussion and review."

On January 10, 2023, the Board issued its final administrative

determination in which it denied appellant's petition for a declaratory ruling and

determined his application for ADR benefits would be held in abeyance pending

final resolution of the Lawsuit pursuant to N.J.A.C. 17:1-6.2(d). The Board

A-3839-21

3

based its decision on its "position . . . that any application for a retirement benefit

submitted by a member with pending litigation pertaining to their employment

be held in abeyance until such time as proof of a final resolution of the litigation

or appeal is received." The Board stated it "cannot review an application without

finalized information that potentially could have an impact on the calculation of

the retirement benefit." It reasoned that "[l]itigation could result in possible

changes to information that is fundamental to the processing of the retirement

benefit, including, but not limited to, date of termination or final

compensation . . . ."

On appeal, appellant asserts he is not challenging the Board's denial of his

petition for a declaratory ruling. Rather, he "seeks judicial review of the Board's

administrative procedures, which include the Board's initial inaction as to [his]

petition for a declaratory ruling." Specifically, appellant contends the Board's:

interpretation and application of N.J.A.C. 17:1-6.2(d) was arbitrary, capricious,

and unreasonable; failure to address his request for a declaratory ruling prior to

its December 12, 2022 meeting was arbitrary, capricious, and unreasonable; and

procedures in addressing his "matter [were] fundamentally unfair" because the

Board adopted its findings of fact and conclusions of law after it issued its initial

decision.

A-3839-21

4

Judicial review of quasi-judicial agency determinations is limited.

Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157

(2018) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27 (2011)). "An agency's determination on the merits 'will be sustained unless

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record.'" Saccone v. Bd. of Trs., Police & Firemen's

Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo, 206 N.J. at 27).

"Arbitrary and capricious action of administrative bodies means willful

and unreasoning action, without consideration and in disregard of

circumstances. Where there is room for two opinions, action is [valid] when

exercised honestly and upon due consideration, even though it may be believed

that an erroneous conclusion has been reached." Worthington v. Fauver, 88 N.J.

183, 204-05 (1982) (alteration in original) (quoting Bayshore Sewerage Co. v.

Dep't Env't Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973)).

"[G]enerally, when construing language of a statutory scheme, deference

is given to the interpretation of statutory language by the agency charged with

the expertise and responsibility to administer the scheme." Acoli v. N.J. State

Parole Bd., 224 N.J. 213, 229 (2016). "Such deference is appropriate because it

recognizes that 'agencies have the specialized expertise necessary to enact

A-3839-21

5

regulations dealing with technical matters and are "particularly well equipped to

read . . . and to evaluate the factual and technical issues that . . . rulemaking

would invite."'" In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489,

(2004) (alterations in original) (quoting N.J. State League of Muns. v. Dep't of

Cmty. Affairs, 158 N.J. 211, 222 (1999)). However, although we afford great

deference to an agency's interpretation, we are not bound by its interpretation of

a statute or a legal issue. Mondsini v. Local Fin. Bd., 458 N.J. Super. 290, 297

(App. Div. 2019) (citing Russo, 206 N.J. at 27).

Appellant's contention that the Board's interpretation and application of

N.J.A.C. 17:1-6.2(d) was arbitrary, capricious, and unreasonable is not

persuasive. The aim of statutory interpretation is to give effect to Legislative

intent. "[T]he best indicator of that intent is the statutory language[.]"

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195

(2007) (first alteration in original) (quoting DiProspero v. Penn, 183, N.J. 477,

492 (2005)). N.J.A.C. 17:1-6.2 provides in relevant part:

(a) When a member is subject to criminal charges . . . or

dismissed from public employment due to

administrative charges, the matter shall be referred to

the Board Secretary's office to determine the status of

any claim, which may be filed by the member.

....

A-3839-21

6

(c) No claims for retirement or death benefits can be

processed until the matter has been fully adjudicated

and completely resolved to the satisfaction of the

Board . . . pursuant to N.J.A.C. 17:1-1.13(a)(4)

[suspension of retirement benefits pending criminal

charges or administrative or disciplinary action] . . . .

(d) Likewise[,] in cases where anything pertaining to a

member's employment is in litigation, or under appeal,

the matter shall be held in abeyance until the Division

determines if claims can be processed or whether the

processing of such claims are to be postponed pending

a final resolution of the litigation or appeal.

N.J.A.C. 17:1-6.2(d) plainly and unambiguously provides "in cases where

anything pertaining to a member's employment is in litigation . . . the matter

shall be held in abeyance" until it is determined that the claim can be processed

or that the processing should be "postponed pending a final resolution of the

litigation . . . ." Contrary to appellant's argument, nothing in the text of N.J.A.C.

17:1-6.2(d) in any way limits its application to the types of criminal charges or

administrative or disciplinary actions referenced in subsections (a) and (c) of

N.J.A.C. 17:1-6.2. Unlike those subsections, N.J.A.C. 17:1-6.2(d) applies when

"anything pertaining to a member's employment is in litigation." (emphasis

added). Here, the Board determined appellant's application for ADR benefits

would be held in abeyance until his Lawsuit is resolved because the relief sought

in the Lawsuit could affect his application. The Board's decision was based on

A-3839-21

7

a reasonable interpretation of the plain language of N.J.A.C. 17:1-6.2(d) and

was supported by sufficient evidence in the record. The Board's decision was

not arbitrary, capricious, or unreasonable and will not be disturbed on appeal.

Appellant's claims that the Board failed to address his petition for a

declaratory ruling earlier and adopted its findings of fact and conclusions of law

after it issued its initial decision are moot. See Redd v. Bowman, 223 N.J. 87,

104 (2015) ("An issue is moot when [our] decision sought in a matter, when

rendered, can have no practical effect on the existing controversy.") (internal

quotation omitted).

The Board's decision is supported by sufficient credible evidence on the

record as a whole. R. 2:11-3(e)(1)(D). To the extent we have not otherwise

addressed appellant's arguments, they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3839-21

8