Opinion
DOCKET NO. A-5547-12T2
06-04-2015
ROGER VOGEL, Petitioner-Appellant, v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Stephen B. Hunter argued the cause for appellant (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. Hunter, of counsel and on the briefs). Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Leone and Gilson. On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury, PFRS #3-103829. Stephen B. Hunter argued the cause for appellant (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. Hunter, of counsel and on the briefs). Jeff S. Ignatowitz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Ignatowitz, on the brief). PER CURIAM
Petitioner Roger Vogel appeals the revocation of his membership in the Police and Firemen's Retirement System (PFRS), N.J.S.A. 43:16A-1 to -68. The Board of Trustees (Board) of the PFRS revoked his membership because he failed to complete his mandatory basic training as a juvenile corrections officer under the Police Training Act, N.J.S.A. 52:17B-66 to -77, and the Juvenile Justice Act, N.J.S.A. 52:17B-169 to -178. We vacate and remand.
I.
Before the Administrative Law Judge (ALJ), the parties stipulated to the following underlying facts.
The parties also stipulated to "facts" that are nothing more than the contentions of the parties (e.g., "Vogel has alleged"). Such stipulations fail to establish any underlying facts, and so we treat them as contentions and address them separately.
On September 2, 2006, Vogel was enrolled in the PFRS upon his employment in a PFRS-covered position, namely Juvenile Justice Corrections Officer. During his employment regular pension deductions were taken from his paycheck as contributions into the PFRS. However, Vogel did not complete the Police Training Commission (PTC) training.
On August 23, 2007, while Vogel was working as a corrections officer at a juvenile medium security facility, he was assaulted by an inmate who jumped at him and threatened to kill Vogel and his family. The inmate spit in Vogel's face and eyes, causing Vogel to fall backward over a stool and strike a file cabinet. He injured his low back and groin.
Vogel did not complete the PTC training prior to ceasing employment. On July 8, 2008, Vogel filed an application for accidental disability retirement (ADR) benefits under the PFRS. Neither Vogel nor his employer informed the PFRS Board or the Division of Pension and Benefits (Division) that Vogel failed to complete PTC training.
In his application, Vogel alleged ADR benefits were warranted because he was suffering from a post-traumatic stress disorder as a result of three separate assaults on him on July 15, August 15, and August 23, 2007. On February 11, 2009, the Board denied Vogel's application. The Board determined the third physical assault on August 23 met the criteria to qualify as a traumatic event justifying ADR benefits. However, the Board's independent medical examination (IME) found Vogel's disability directly resulted from all three incidents. Because the Board found the first two incidents did not qualify as traumatic events, it denied ADR benefits.
Vogel appealed that denial, arguing he suffered permanent physical injuries during the August 23 assault that prevented him from performing the essential duties of a corrections officer. To support that revised argument, Vogel's counsel filed medical certifications from two physicians. Vogel also saw a doctor who prepared an IME report.
Meanwhile, Vogel's revised application was listed on the Board's August 2010 agenda. Immediately prior to the August 2010 meeting, the PFRS first became aware that Vogel had not completed the PTC training. On August 10, 2010, the Board issued a decision again finding Vogel ineligible for ADR benefits. The Board maintained Vogel was improperly enrolled in the PFRS. Prior to that time, Vogel had not been advised there were any "eligibility concerns" relating to his application for ADR benefits.
Thereafter, by agreement of the parties, Vogel's appeal was submitted to the ALJ for summary disposition on stipulated facts. After receiving briefs and hearing oral argument, the ALJ summarily denied Vogel's appeal on April 26, 2013. On June 11, 2013, the Board adopted the ALJ's decision. Vogel appeals to this court.
The Board noted the exceptions filed by Vogel. It was not required to discuss them further. Compare N.J.A.C. 1:1-18.4 with -18.6.
II.
The ALJ rejected Vogel's claim in a summary decision under N.J.A.C. 1:1-12.5. "The standard governing agency determinations under N.J.A.C. 1:1-12.5 is 'substantially the same as that governing a motion under Rule 4:46-2 for summary judgment in civil litigation.'" L.A. v. Bd. of Educ., 221 N.J. 192, 203 (2015) (citation omitted). Summary decision "may be rendered if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b).
[A] court must ascertain "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."
L.A., supra, 221 N.J. at 204 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
"Because an agency's determination on summary decision is a legal determination, our review is de novo." Ibid. We must hew to that standard of review.
III.
To be a member of the PFRS, a person must meet the PFRS's definition of a "policeman" or "fireman." N.J.S.A. 43:16A-1(3), -3. The PFRS provides in pertinent part:
"Policeman" shall mean a permanent, full-time employee of a law enforcement unit as defined in section 2 of P.L.1961, c.56
(C.52:17B-67) . . . whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State and who:N.J.S.A. 43:16A-1(2)(a) does not expressly state that an officer cannot be enrolled as a member of the PFRS until he or she completes that training.
. . .
(iii) is required to complete successfully the training requirements prescribed by P.L.1961, c.56 (C.52:17B-66 et seq.) or comparable training requirements as determined by the board of trustees[.]
[N.J.S.A. 43:16A-1(2)(a) (emphasis added).]
N.J.S.A. 52:17B-67 defines "Law enforcement unit" as an organization which has "the responsibility of detecting crime and enforcing the general criminal laws of this State." That section, unlike the PFRS legislation, does not expressly include those "whose primary duties include the . . . detention of persons." N.J.S.A. 43:16A-1(2)(a). However, the Juvenile Justice Act provides that person appointed as juvenile corrections officers are considered "'policemen' within the meaning of [N.J.S.A. 43:16A-1] and members of the [PFRS] established pursuant to [N.J.S.A. 43:16A-2]." N.J.S.A. 52:17B-174(a).
There was no mention of the training requirement in the PFRS regulations at the time Vogel was working. N.J.A.C. 17:4-2.1(b)(11) and N.J.A.C. 17:4-2.2 simply referenced the definition in N.J.S.A. 43:16A-1(2)(a). 33 N.J.R. 684(a) (Feb. 20, 2001). N.J.A.C. 17:4-2.1(a) directed, then as now, that "[a]ll public employees actively employed in positions meeting the statutory definition 'police officer' or 'firefighter' found at N.J.S.A. 43:16A-1(2)(a) and (b) shall be members of the [PFRS]." 38 N.J.R. 1578(a) (Apr. 3, 2006) (emphasis added). At that time, N.J.A.C. 17:4-2.6(a) provided that "[a]n employee who is appointed to a permanent position from a civil service list shall be considered as having begun eligibility for enrollment on the date of regular appointment." 33 N.J.R. 684(a) (emphasis added).
On December 15, 2008, the Board extensively amended the PFRS regulations. The 2008 amendments required "successful completion of the basic training course approved by the [PTC] pursuant to N.J.S.A. 52:17B-66 et seq." 40 N.J.R. 6991(b) (Dec. 15, 2008) (adding N.J.A.C. 17:4-2.1(b)(11)-(12)) (defining "[p]ermanent police officer").
The additions to and deletions from the prior regulations are detailed in 40 N.J.R. 4678(a) (Aug. 18, 2008).
These definitions now appear in N.J.A.C. 17:4-1A.1.
The 2008 amendments added a new rule at N.J.A.C. 17:4-2.4 entitled "Training Requirements." 40 N.J.R. 6991(b). The new N.J.A.C. 17:4-2.4(a) provided: "As required under N.J.S.A. 43:16A-1(2)(a)(iii), permanent, full-time police officers are required to successfully complete the [PTC] training requirement prescribed under N.J.S.A. 52:17B-66 et seq., . . . or proof of comparable training requirements as determined by the Board of Trustees." Ibid. The new N.J.A.C. 17:4-2.4(a)(6) mandated that "[t]he applicant or the employer must submit evidence to the Division of Pensions and Benefits that such basic training course was satisfactorily completed." Ibid. The new N.J.A.C. 17:4-2.4(a)(7) provided that "[a]ny current PFRS police members that have not successfully completed the PTC or comparable training by (18 months after the effective date of this new rule), will be removed from participation in the PFRS." Ibid.
The 2008 amendments added a preface to N.J.A.C. 17:4-2.2 providing that membership in the PFRS was "[p]ursuant to N.J.A.C. 17:4-2.3, 2.4 and 2.5," 40 N.J.R. 6991(b), "to specifically address medical, training and age requirements," 40 N.J.R. 4678(a) (Aug. 18, 2008). Similarly, the amendments changed N.J.A.C. 17:4-2.6(a) to include "[p]ursuant to N.J.A.C. 17:4-2.3, 2.4 and 2.5, an employee who is appointed to a regular classified appointment from a Civil Service list to a PFRS position shall be considered for PFRS enrollment upon successful completion of the police or firefighting training." 40 N.J.R. 6991(b). The amendments rewrote N.J.A.C. 17:4-2.6(d) to provide that employees "who are hired into approved PFRS titles and are otherwise eligible, will not be permitted enrollment in PFRS, until the employer certifies that the employees have successfully completed the police or firefighting training." Ibid.
In the Board's proposal to enact the 2008 amendments, it explained the Division "found during a functional analysis . . . that employees are enrolled in PFRS, prior to the successful completion of the training requirements pursuant to N.J.S.A. 43:16A-1." 40 N.J.R. 4678(a). "This finding initiated a review of the enrollment practices for police and fire positions among both Civil Service and non-Civil Service employers." Ibid. "The Division found that there is not a uniform enrollment practice among the PFRS participating employers and situations have been identified wherein nonqualified employees are permitted entry into the PFRS." Ibid.
The Board's proposal acknowledged that under the Police Training Act, "no person shall accept a permanent appointment as a police officer until that person successfully completes PTC or comparable training." 40 N.J.R. 4678(a). Nonetheless, the Board found "it is necessary to amend certain rules in N.J.A.C. 17:4 to ensure that the enrollment practices are in compliance with the statute and provide the Division with the authority to prohibit the existing practice of nonqualified employees getting enrolled in the PFRS." Ibid. "The proposed amendments to N.J.A.C. 17:4-2.6 will standardize the enrollment date for all locations." Ibid.
The Board's proposal explained that through the new N.J.A.C. 17:4-2.4(a)(7), "[t]he Board will grandfather those members that are already enrolled in the PFRS by allowing 18 months from the effective date of the rule to attend the appropriate police or firefighter training classes." 40 N.J.R. 4678(a). "The Board does not want to harm any member currently hired in a police or fire position that has not attended the necessary training for the position[.]" Ibid.
IV.
In its August 10, 2010 decision rejecting Vogel's claim, the Board relied on the new N.J.A.C. 17:4-2.4, which was added after he allegedly became disabled. Vogel asserts the 2008 amendments were not meant to have retroactive effect.
"Generally, a regulation only applies prospectively." Rahway Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J. Super. 101, 112 (App. Div.), certif. denied, 183 N.J. 217 (2005). "Prospectivity is favored because 'retroactive application of new laws involves a high risk of being unfair.'" Seashore Ambulatory Surgery Ctr., Inc. v. N.J. Dep't of Health, 288 N.J. Super. 87, 97 (App. Div. 1996) (quoting Gibbons v. Gibbons, 86 N.J. 515, 522 (1981)). "A regulation may apply retroactively if the Legislature or agency has expressed that intent, either explicitly or impliedly, and retroactive application would not cause a manifest injustice or an interference with a vested right." Rahway Hosp., supra, 374 N.J. Super. at 112 (citing State Troopers Fraternal Ass'n v. State, 149 N.J. 38, 54 (1997)).
Here, neither the language of the 2008 amendments nor the PFRS's commentary to the proposal "reflects an intention to apply the new regulation[s] retroactively." See ibid. The 2008 amendments were expressly effective on December 15, 2008, and gave no indication the PFRS intended to revoke the enrollment in the PFRS of officers who had not completed the training requirement. Rather, the grandfather provision and the Board's proposal indicate those enrollments would remain in effect so long as the officers completed the training within eighteen months.
Moreover, as set forth above, the Board found no "uniform enrollment practice." 40 N.J.R. 4678(a). This was not a situation where "'[t]he provisions of [the amended] rule reflect long-standing current practice'" and are simply "codifying existing statewide practice." State Troopers, supra, 149 N.J. at 54 (citation omitted). Indeed, prior to the amendments, the Police & Firemen's Ret. Sys. Member Handbook (last updated October 10, 2008) advised that "[t]he date of enrollment for the PFRS is the date of permanent appointment to the position, even if the enrollee has yet to complete law enforcement of fire fighter training."
"[P]rospective application is 'particularly appropriate when [an agency] renders a first-instance or clarifying decision in a murky or uncertain area of the law.'" Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 587 (2012) (quoting Montells v. Haynes, 133 N.J. 282, 298 (1993)). Here, it was not just one person who found the law murky or uncertain. Cf. id. at 588. The Deputy Attorney General at oral argument informed us that, at the time of the 2008 amendment, over one hundred officers were enrolled in the PFRS without having completed the training requirement.
We find no intent to apply the new restrictions in the 2008 amendments retroactively, and decline to do so. See Chiarello v. Bd. of Trs., Pub. Emps. Ret. Sys., 429 N.J. Super. 194, 199 & n.5 (App. Div. 2012). Thus, we need not consider whether retroactive application would work "a manifest injustice." State Troopers, supra, 149 N.J. at 54.
V.
The ALJ ruled, and the Board now argues, regardless of the 2008 amendments to the regulations, the statutes were clear that Vogel could not be enrolled in the PFRS without completing the training requirement. We agree that the Juvenile Justice Act and the Police Training Act state clearly that a person should not be appointed as a juvenile corrections officer until he successfully completes the training course. The Juvenile Justice Act provides that "no person shall be appointed as a juvenile corrections officer unless that person: . . . (7) [h]as successfully completed the training course approved by the [PTC] and required by [N.J.S.A. 52:17B-68.1] or is exempt pursuant to the provisions of that section." N.J.S.A. 52:17B-174(b).
The Police Training Act requires "[a] person appointed as an adult or juvenile corrections officer or as a juvenile detention officer by the State or county shall satisfactorily complete prior to permanent appointment a basic training course approved by the [PTC]," unless he has successfully completed specified alternate training. N.J.S.A. 52:17B-68.1(a); see also N.J.S.A. 52:17B-67, -68. It has long been understood the Police Training Act "requires the successful completion of an approved police training course as a prerequisite to appointment as a permanent police officer." Azzara v. Twp. of Waterford, 392 N.J. Super. 322, 324 (App. Div. 2007); see, e.g., Marcinczyk v. State Police Training Comm'n, 203 N.J. 586, 590 (2010); State v. Bealor, 187 N.J. 574, 592 (2006); Greenwood v. State Police Training Ctr., 127 N.J. 500, 505 (1992); Belmar Policemen's Benevolent Ass'n v. Belmar, 89 N.J. 255, 265 (1982).
Thus, Vogel's employer violated those acts when it appointed him to a regular position. We reject Vogel's claim that he fulfilled his training requirement simply by working as a juvenile corrections officer. That claim is antithetical to the purpose of the Police Training Act. N.J.S.A. 52:17B-66. That claim is also contrary to the provisions providing the only alternative to PTC training is if an officer "has successfully completed training conducted by a federal, State or county agency the requirements of which are substantially equivalent to the requirements of a basic training course approved by the [PTC]." N.J.S.A. 52:17B-68.1; accord N.J.S.A. 52:17B-68(a); see also N.J.S.A. 52:17B-174(b)(7).
According to the Board, "Vogel was appointed to the position of Correction Officer Recruit on September 2, 2006," which appears to be a regular appointment. See N.J.A.C. 4A:3-3.7B; 42 N.J.R. 9(a) (Jan. 4, 2010).
However, the issue before us is not a civil service challenge to Vogel's appointment. Rather, we must decide whether it was clear Vogel could not be enrolled in the PFRS when he was appointed. At that time, the statute and regulations governing the PFRS did not clearly state a person could not be enrolled in the PFRS until after he completed the training course. See N.J.S.A. 43:16A-1(2)(a). Indeed, the regulations then in effect made no mention of the training requirement, and N.J.A.C. 17:4-2.6(a) provided that a person appointed to a permanent position achieved "eligibility for enrollment on the date of regular appointment." 33 N.J.R. 684(a). Moreover, at that time the PFRS's Member Handbook mistakenly stated that a person could be enrolled in the PFRS even if the enrollee has yet to complete law enforcement training.
Any doubt the PFRS regulations and statute were not sufficiently clear is removed by the Board's proposal explaining the need for the 2008 amendments. The Board found the PFRS participating employers read the PFRS statutes and regulations differently, resulting in "inconsistency" and a lack of any standard enrollment practice. 40 N.J.R. 4678(a). The widespread confusion made it "necessary" for the Board to extensively amend the regulations "to ensure that the enrollment practices are in compliance with the statute." Ibid. Further, the Board found the amendments were necessary to "provide the Division with the authority to prohibit the existing practice of nonqualified employees getting enrolled in the PFRS." Ibid.
"We give substantial deference to an agency's interpretation of the statute it is charged with carrying out, as well as to the interpretation the agency itself gives to its own regulations." Fedor v. Nissan of N. Am., Inc., 432 N.J. Super. 303, 320 (App. Div. 2013), certif. denied, 217 N.J. 52 (2014). "Such deference has been specifically extended to state agencies that administer pension statutes." Bueno v. Bd. of Trs., Teachers' Pension & Annuity Fund, 404 N.J. Super. 119, 125 (App. Div. 2008), certif. denied, 199 N.J. 540 (2009); see, e.g., Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 381-82 (2002). Accordingly, we defer to the Board's own assessment in its proposal that the PFRS statutes and regulations were unclear before the extensive 2008 amendments.
We find the Board's proposal a more thorough and compelling interpretation of the PFRS statutes and regulations than the Board's current position in its brief that the PFRS statutes were clear. In any event, we are "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Richardson v. Bd. of Trs., 192 N.J. 189, 196 (2007) (citation omitted).
We reject, however, Vogel's argument the Board is equitably estopped from challenging his eligibility for ADR benefits because of his reliance on the PFRS regulations in force before the 2008 amendments. "'[E]quitable estoppel is rarely invoked against the government.'" Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ., ___ N.J. ___, ___ (2015) (slip op. at 19) (citation omitted). "The essential elements of equitable estoppel are a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987).
Vogel has not cited any such misrepresentation in the pre-2008 PFRS regulations promising he could collect ADR benefits without completing the required PTC training. Cf. Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 372 (2000) (employee was "repeatedly assured" that he would receive benefits). Vogel does not claim he relied on the misinformation in the PFRS's Member Handbook. "Absent reasonable reliance on affirmative assurances, estoppel is unavailable." Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 137 (App. Div. 2011). Nor can the Board be estopped because it did not initially challenge Vogel's eligibility when he sought ADR benefits. The Board properly raised that challenge promptly upon learning he did not complete the required training. See N.J.S.A. 43:16A-18; see also Tubridy v. Consol. Police & Firemen's Pension Fund Com., 84 N.J. Super. 257, 263 (App. Div. 1964).
VI.
The 2008 amendments granted a grace period to people like Vogel. Upon his improper appointment, Vogel was enrolled as a member in the PFRS under the unclear regulations then in force, even though he did not complete the PTC training. He was a "member in service" when he was allegedly disabled. See N.J.S.A. 43:16A-7(1), -15.2(a); cf. Smith v. State, Dep't of Treasury, Div. of Pensions & Benefits, 390 N.J. Super. 209, 211 (App. Div. 2007) (disabling injury occurred before the employee became a member of the pension system). Although Vogel's ADR benefits claim sought a retirement date of November 1, 2008, he had not been granted retirement when the new N.J.S.A. 17:4-2.4(a)(7) was enacted on December 15, 2008. It "grandfather[ed] those members that are already enrolled in the PFRS" because "[t]he Board d[id] not want to harm any member currently hired in a police or fire position that has not attended the necessary training for the position[.]" 40 N.J.R. 4678(a). As the Board explained in a December 15, 2008 memorandum, all "PFRS members without the required training [] have eighteen months (December 31, 2008 through June 30, 2010) to . . . have the required PTC . . . training."
N.J.S.A. 17:4-2.4(a)(7) was deleted in 2011 "as the timeframe for police officers to have completed the PTC was from January 1, 2009 until July 1, 2010." 43 N.J.R. 1177(a) (May 2, 2011). We consider it here because it was in force during the pertinent period.
It is undisputed that Vogel did not complete the required PTC training before he was allegedly disabled, and that he did not complete the training within the grace period provided by the new N.J.A.C. 17:4-2.4(a)(7). Nevertheless, the parties stipulated before the ALJ that Vogel made two factual allegations to excuse his failure to complete the PTC training.
First, Vogel asserted he was unable to complete the Basic Class for Juvenile Corrections Officer (BCJCO) in September 2006 as a result of an injury suffered in the course of his Training Academy. Second, Vogel argued that he became totally and permanently disabled as a result of the August 23, 2007 assault, and thus could no longer be assigned to, or complete, the BCJCO training program that he was scheduled to begin in September 2007.
The ALJ did not resolve Vogel's first factual assertion. The ALJ cited a September 29, 2006 memorandum to Vogel from Michael Cleary, School Director of the Juvenile Justice Commission's Training Academy (Cleary Memo). According to the ALJ and the Board, the Cleary Memo indicated that "Vogel was unable to complete the mandatory [BCJCO] training requirement as provided by N.J.S.A. 52:17B-66 et seq." The ALJ found the Cleary Memo informed Vogel he was being withdrawn from the September training cycle due to his "inability to participate in the physical conditioning program" of the BCJCO. Vogel had "already missed more than 10% of the instructional time assigned to the physical training component," and thus would "not be able to meet the 90% participation standard established by the PTC." The ALJ also noted the Cleary Memo told Vogel that he should report to his assigned facility, that he would be reassigned to the Training Academy in early March 2007, and that his "attendance at the March 2007 BCJCO will be [his] final opportunity to complete this course successfully."
The ALJ also cited an October 5, 2006 letter from Cleary to the PTC (Cleary Letter). According to the ALJ, the Cleary Letter stated Vogel missed six police training (PT) sessions, and as a result he would be unable to participate in the minimum PT sessions for the September 2006 cycle. Thus, "the agency has decided to recycle him in the March 2007 BCJCO," and he would work at his assigned facility in the interim. According to the ALJ, the Cleary Letter added that, in his first PT session, Vogel complained of knee pain, which he indicated "was related to a prior injury." However, "he was asked at least twice if he was claiming an injury and he said he was not."
Finally, the ALJ cited Vogel's "exceptional" performance review through August 2007, which stated that he was "due to attend the Academy in September [2007]."
Although the Cleary Memo, Cleary Letter, and performance review were exhibits to the parties' Second Supplemental Stipulation of Facts, the parties failed to supply them to this court. The portions quoted or paraphrased in the decisions of the Board and the ALJ do not resolve the veracity of Vogel's assertion that he was unable to complete the BCJCO training in September 2006 as a result of an injury suffered in his training. The record on appeal also does not explain whether he was reassigned from his assigned facility to attend the March 2007 training, or if so, why he did not complete it.
Under N.J.S.A. 52:17B-71(n), the PTC has the authority
[t]o extend the time limit for satisfactory completion of police training programs or programs for the training of corrections officers, juvenile corrections officers and juvenile detention officers upon a finding that health, extraordinary workload or other factors have, singly or in combination, effected a delay in the satisfactory completion of such training program.Thus, if Vogel's health justified a delay in training, he may not have violated the Police Training Act prior to allegedly becoming disabled. Vogel's enrollment for the September 2007 training class also may not have violated the Police Training Act. The PTC may allow the training period to "exceed one year for those persons enrolled within the one-year period in a basic training course scheduled to end after the expiration of the one-year period." N.J.S.A. 52:17B-68.1(b); see N.J.S.A. 52:17B-69.
The Board's proposal justifying the 2008 amendments stated that "employees injured during [PTC] training should not be eligible for accidental disability retirement benefits." However, the Board noted that under the prior unclear situation, "some employees may file for accidental disability retirement benefits if previously enrolled in the PFRS, while others are not permitted to file since they do not qualify for PFRS enrollment." 40 N.J.R. 4678(a). If Vogel's first factual allegation is true, he may fall within the first group the Board cited.
The ALJ also did not resolve Vogel's second factual allegation. Vogel asserted as a result of the August 23, 2007 assault, he became totally and permanently disabled and was incapable of completing the PTC training in September 2007 or thereafter. He argues this prevented him from completing the PTC training before the July 1, 2010 expiration of the 2008 amendments' grace period. There may be some truth in this claim. The Board's February 11, 2009 decision found Vogel was totally and permanently disabled from the performance of his regular and assigned duties.
These unresolved factual disputes are relevant under cases cited in support of Vogel's equitable claims. In Kyer v. City of E. Orange, 315 N.J. Super. 524, 526-27 (App. Div. 1998), the plaintiff was hired as a provisional employee, a status that should be limited to twelve months. However, due to the mishandling by the municipality of her initial paperwork, she never took the competitive civil service examination that was necessary to become a permanent employee. Id. at 527-28. Nonetheless, she continued to work until her termination seven years later. Id. at 528, 530-31. We held:
[W]here, as here, a long-term provisional employee has performed satisfactorily and has failed to achieve permanent status because of the appointing authority's neglect, the [agency] has the authority to retroactively, as it were, determine the employee's qualifications by such methods as it shall in its discretion deem appropriate and to further determine whether, had the inquiry into qualifications been timely made, the employee would have achieved permanency in the normal course of municipal management of its affairs.We stressed that "government is required to 'turn square corners' in dealing with its citizens, and persons employed by civil service municipalities ought not to have to retain counsel for advice as to their job rights." Ibid. (quoting F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985)). Accord Melani v. Cnty. of Passaic, 345 N.J. Super. 579, 581-82, 589 (App. Div. 2001).
[Id. at 534.]
We have extended Kyer to pension issues. Sellers v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 399 N.J. Super. 51, 59 (App. Div. 2008); see Francois v. Bd. of Trs., 415 N.J. Super. 335, 353-54 (App. Div. 2010). In Sellers, a thirty-eight-year old was hired as a firefighter under the mistaken belief that credit for prior service would exempt him from the prohibitions in N.J.S.A. 43:16A-3, N.J.A.C. 17:4-2.5, and elsewhere against hiring and enrolling in the PFRS any officer over thirty-five-years old. Sellers, supra, 399 N.J. Super. at 52-55. We noted the difficulties arising from the "overlapping responsibility between municipalities and the Board," and that municipalities "make hiring decisions based upon their understanding of the pension law, which may be the result of reasonable mistake based on past confusion." Id. at 60-61. We held "that the Board does have equitable powers to allow [the employee] enrollment in PFRS" and remanded for the Board "to determine whether the facts warrant application of equitable principles." Id. at 53, 63.
These equitable principles may be applicable in this case. As in Kyer, Vogel was employed in a regular position even though a necessary step to become a permanent employee had not been satisfied. While Kyer served for a substantially longer period, Vogel's employer actually appointed him to a regular position. Moreover, as in Sellers, Vogel's employer enrolled him in the PFRS as the result of its reasonable misunderstanding of the pension law.
Thus, the resolution of Vogel's two factual allegations and other unanswered factual questions is crucial to the application of such equitable principles. Vogel alleges he was injured in the course of his PTC training in September 2006 and unable to complete it, but the Cleary Memo suggests his failure to complete the training was attributable to preexisting injury, inability, or unwillingness. Although the Cleary Letter states that Vogel was to attend the training in March 2007, our record is silent as to why he did not attend. Vogel alleges he was prevented from completing the required training in September 2007 or thereafter due to his allegedly disabling injury in August 2007. If all of these factual issues are resolved in Vogel's favor, he may have a claim under equitable principles that he failed to complete the training not through his own fault but that of his employer, and he may deserve "a remedy or, at least, a remedial opportunity." Kyer, supra, 315 N.J. Super. at 527.
Accordingly, "[w]e remand in order for the Board to make these findings and to determine whether the facts warrant application of equitable principles here." Sellers, supra, 399 N.J. Super. at 63. Because those factual findings could require credibility assessments, the Board may refer the matter again for hearing before the Office of Administrative Law. The parties are free to enter into additional stipulations to narrow the factual issues, provided that they are actual stipulations of fact and not merely stipulations identifying the parties' competing allegations.
"[T]he Board does have the authority to apply equitable principles to provide a remedy when justice so demands, provided the power is used rarely and sparingly, and does no harm to the overall pension scheme." Id. at 62.
[T]he Board must carefully balance the relevant public and private interests. It should look at the equities from [the employee's] point of view, considering whether the government failed to "turn square corners" with him, whether he acted in good faith and reasonably, the degree of harm he will sustain if the [training] requirement is strictly enforced, and other factors that go to the fairness of applying the [training] restriction to him . . . . The Board must then consider the purposes of the [training] restrictions from the perspective of the [juvenile corrections officer] position and the pension system and determine whether or to what extent those purposes will be thwarted if relief is provided to [the employee.]
[Id. at 62-63.]In assessing this balance, the Board shall consider the "'"potential adverse impact on the financial integrity" of the pension fund.'" Francois, supra, 415 N.J. Super. at 349-50, 357 (citations omitted); Smith, supra, 390 N.J. Super. at 212-13, 215.
Accordingly, we remand to the Board for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
Vogel asserts that if he is found to be ineligible for the PFRS, his case should be referred to the Public Employee's Retirement System. Nothing in our opinion forecloses Vogel from making that argument to the Board on remand.
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CLERK OF THE APPELLATE DIVISION