IN THE MATTER OF LYNETTE BUTLER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5582-07T15582-07T1

IN THE MATTER OF

LYNETTE BUTLER.

____________________________________________________

 

Argued April 28, 2009 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of Treasury.

Frank M. Crivelli argued the cause for appellant Lynette Butler (Pellettieri Rabstein and Altman, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief).

Eileen S. DenBleyker, Deputy Attorney General, argued the cause for respondent Board of Trustees of the Police and Firemen's Retirement System (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).

PER CURIAM

On September 15, 2005, William Paterson University served a preliminary notice of disciplinary action upon appellant Lynette Butler, who was employed by the University as a sergeant in its campus police department. The notice charged appellant with an "inability to perform duties," in violation of N.J.A.C. 4A:2-2.3. The specification of charges alleged that "[a] psychological fitness for duty determination states that you are unable to perform the duties of a campus police officer." The notice stated that the University sought appellant's "removal" from her position.

On October 3, 2005, the University conducted a pre-suspension hearing, as a result of which a hearing officer upheld appellant's suspension without pay based on a finding of inability to perform her duties.

On November 2, 2005, the Division of Pensions notified appellant that the University had filed an application for an involuntary ordinary disability retirement on her behalf. Thereafter, the University held the disciplinary charge against appellant in abeyance pending a decision by the respondent Board of Trustees of the Police and Firemen's Retirement System (PFRS Board) on the application for an involuntary ordinary disability retirement. The record before us does not indicate whether appellant acquiesced in the University's decision to hold this charge in abeyance. In any event, it is undisputed that appellant's suspension without pay continued while the PFRS Board processed the application for an ordinary disability pension because of the disciplinary action against appellant brought by the University rather than any action by the PFRS Board.

By letter dated January 9, 2007, the PFRS notified appellant and the University that it had determined appellant was not totally and permanently disabled from performing her duties as a sergeant in the campus police department. Accordingly, the PFRS Board denied the University's application to involuntarily retire appellant on an ordinary disability pension and directed the University to return appellant to duty.

The University appealed this decision and the PFRS Board transmitted the matter to the Office of Administrative Law as a contested case. An Administrative Law Judge (ALJ) conducted an evidentiary hearing on the application, and the ALJ issued an initial decision on May 1, 2008, which found that appellant is not totally and permanently disabled from the performance of her normal and assigned duties. In addition, the ALJ concluded that the PFRS Board had no authority to award appellant back pay or the attorney's fees and other costs she incurred in opposing the University's application to involuntary retire her.

The PFRS Board adopted the ALJ's initial decision and consequently ordered the University to reinstate appellant. The PFRS Board also concurred with the ALJ's conclusion that it had no authority to award appellant back pay or the litigation costs she incurred in opposing the University's application.

Appellant filed this appeal from the part of the PFRS Board's final decision that denied her request for an award of back pay and costs. The University did not cross-appeal from the part of the PFRS Board's final decision that denied its application to involuntarily retire appellant on an ordinary disability pension. We were advised at oral argument that the University has reinstated appellant but did not award her any back pay for the period of time she was suspended without pay.

Appellant presents the following arguments on her appeal:

POINT I

BUTLER SHOULD BE AWARDED BACK PAY, ATTORNEYS' FEES & COSTS INCURRED WHILE DEFENDING THE DECISION OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM.

POINT II

THE BOARD OF TRUSTEES FOR PFRS RETREATED FROM ITS AFFIRMATIVE DUTY TO DEFEND ITS INITIAL DECISION REGARDING SERGEANT BUTLER.

POINT III

THE UNIVERSITY'S ACTIONS IN FILING A PRELIMINARY NOTICE OF DISCIPLINARY ACTION FOLLOWED BY THE INVOLUNTARY DISABILITY RETIREMENT APPLICATION JUSTIFIES AN AWARD OF BACK PAY, ATTORNEYS' FEES & COSTS.

POINT IV

LEGAL PRECEDENT EXISTS TO JUSTIFY THE AWARD OF BACK PAY, ATTORNEYS' FEES & COSTS IN INVOLUNTARY RETIREMENT APPLICATION CASES.

These arguments are clearly without merit and only warrant brief discussion. R. 2:11-3(e)(1)(E).

"Administrative agencies . . . are creatures of legislation." N.J. Dep't of Labor v. Pepsi-Cola Co., 170 N.J. 59, 61 (2001). "Their powers are limited to those expressly granted by statute or those fairly implied as necessary to carry out their assigned function." Ibid. "Where there exists reasonable doubt as to whether such power is vested in the administrative body, the power is denied." In re Closing of Jamesburg High Sch., 83 N.J. 540, 549 (1980). "In determining whether a power that has not been expressly granted should be implied, our courts have distinguished between rules or other agency actions that involve an assertion of authority that is simply 'incidental' to its expressly granted powers and ones that implicate 'an important policy question.'" Borough of Avalon v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 590, 607 (App. Div. 2008) (quoting Jamesburg High Sch., supra, 83 N.J. at 550), certif. denied, ___ N.J. ___ (2009)).

The statutes that govern the Police and Firemen's Retirement System do not delegate any authority to the PFRS Board to award back pay or counsel fees to a member of the system if it denies an application by an employer to involuntarily retire the member on an ordinary disability pension. See N.J.S.A. 43:16A-1 to -68. Moreover, the authority to make such awards is not an incidental power that can be implied in the absence of express statutory authority. When the Legislature has determined that a state administrative agency should have authority to award back pay and/or counsel fees, it has expressly so provided in the agency's enabling legislation. See, e.g., N.J.S.A. 10:5-17 and N.J.S.A. 10:5-27.1 (authorizing Director of the Division on Civil Rights to award back pay and counsel fees); N.J.S.A. 34:15-64(d) (authorizing Judge of Division of Workers' Compensation to award counsel fees); N.J.S.A. 11A:2-22 (authorizing Civil Service Commission to award back pay and counsel fees). The Legislature's failure to delegate comparable authority to the PFRS Board reflects a legislative intent to withhold authority from this state agency to make awards of back pay and counsel fees.

We also note that appellant was not suspended without pay as a result of any action by the PFRS Board. Rather, it was the University that suspended appellant based on its disciplinary charge that she was unable to perform her duties. Therefore, although we do not decide the issue, appellant may well be able to seek an award of back pay and perhaps also certain counsel fees by an appropriate application to the Civil Service Commission under N.J.S.A. 11A:2-22. In addition, appellant has a pending Law Division action brought under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, in which she is apparently seeking back pay and counsel fees. Therefore, even though the PFRS Board correctly concluded that it lacked statutory authority to award appellant back pay and counsel fees, appellant may have other avenues available to her for the recovery of those alleged damages as a result of the University's unsuccessful effort to involuntarily retire her.

 
Affirmed.

(continued)

(continued)

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A-5582-07T1

May 27, 2009