VINCENT TAVAGLIONE v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VINCENT TAVAGLIONE,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE AND

FIREMEN'S RETIREMENT SYSTEM,

Respondent-Respondent.

__________________________________________

January 8, 2016

Submitted December 15, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Board of Trustees, Police and Firemen's Retirement System, Docket No. 3-103131.

Caruso Smith Picini, P.C., attorneys for appellant (Steven J. Kaflowitz, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas and Danielle P. Schimmel, Deputy Attorneys General, on the brief).

PER CURIAM

Vincent Tavaglione appeals from a June 10, 2014 final decision of the Board of Trustees of the Police and Firemen's Retirement System (PFRS), which found that, due to misconduct, Tavaglione forfeited his entire pension service credit, and denied his application for accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7. Tavaglione also appeals from an August 29, 2014 decision of the Board, which denied his application for ordinary disability pension benefits. We affirm both decisions.

I.

This appeal arises from the following facts. Tavaglione was employed by the Borough of Morris Plains as a patrolman, and he was enrolled in the PFRS on June 12, 2006. On July 22, 2010, at approximately 4:00 a.m., a police officer responding to a 911 call found Tavaglione's vehicle stopped in the middle of a road in Florham Park. The vehicle was stopped directly over the painted yellow lines in the road.

Tavaglione was in the car. He was unconscious and the car's engine was running. The transmission was in drive, and Tavaglione's foot was on the brake pedal. The police officer unlocked the car's doors through the driver's side window. The officer went to the passenger side door and put the vehicle in park. Another Florham Park police officer arrived on the scene and attempted to get Tavaglione to respond. A third officer unsuccessfully tried to get Tavaglione to respond. The officer detected a strong odor of alcohol emanating from the car.

After one of the officers made several attempts to rouse him, Tavaglione began to respond. His eyes were bloodshot and watery, and he could barely keep his eyes open. He told the officer he had come from a bar in Wayne. The officer directed Tavaglione to exit the car. He told the officer he was not armed. He leaned up against the vehicle to keep from falling. The officer administered two field sobriety tests, which Tavaglione failed.

Tavaglione was placed under arrest for driving while under the influence (DWI), and he was transported to the Florham Park police headquarters. His vehicle was towed from the scene. At the police station, Tavaglione provided two breath samples. He was charged with DWI, contrary to N.J.S.A. 39:4-50. The municipal court found Tavaglione guilty of DWI. He sought de novo review by the Law Division.

On September 2, 2010, the Morris Plains Police Department (MPPD) charged Tavaglione with, among other things, failing to abide by the department's rules and regulations; failing to conduct himself with high ethical standards on and off duty; failing to obey all laws and rules; committing an offense punishable under municipal, state or federal law; and conduct unbecoming a public employee. The MPPD sought Tavaglione's removal. He was suspended with pay pending the outcome of the charges.

On September 18, 2010, Tavaglione filed an application with the Board, seeking accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7. On October 20, 2011, Tavaglione and Morris Plains entered into a settlement agreement. The Borough agreed to withdraw the disciplinary charges pending a decision by the Board on Tavaglione's disability application and place Tavaglione on unpaid leave.

The agreement further provided that if the Board granted Tavaglione's application, he would cease employment as of the effective date of the Board's decision. However, if the Board denied the application, Tavaglione would be deemed to have resigned his position, and he would not seek employment with the Borough at any time thereafter.

On February 29, 2012, the Law Division found Tavaglione guilty of DWI. The court suspended Tavaglione's license for three months, and required that he complete a twelve-hour Intoxicated Driver Center program. The court also imposed various fines and required Tavaglione to pay court costs.

On May 14, 2012, the Board determined that, based on its consideration of factors enumerated in N.J.S.A. 43:1-3, Tavaglione's entire PFRS service should be forfeited. The Board noted that Tavaglione's misconduct demonstrated a high degree of moral turpitude, and a breach of the high standard of conduct expected of police officers. The Board stated that Tavaglione had violated the public trust and jeopardized the safety of other citizens and public safety officers. The Board found that, because Tavaglione's entire PFRS service was forfeited, he was not eligible for accidental disability retirement benefits.

Tavaglione appealed and the Board referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). At the hearing, Tavaglione testified concerning the injury he had sustained to his foot and ankle in 2007, while pursuing a juvenile suspect. He also presented testimony from Dr. Michael Goldberger, an orthopedic surgeon, in support of his appeal. Dr. Jeffrey Lakin, an orthopedist who examined Tavaglione, testified for the PFRS.

The ALJ filed an initial decision dated March 13, 2014. The ALJ considered the factors in N.J.S.A. 43:1-3 and concluded that Tavaglione's conduct warranted a total forfeiture of his PFRS service credits. The ALJ further found that, in light of the total forfeiture of Tavaglione's service credits, his eligibility for accidental disability retirement benefits was moot. Nevertheless, the ALJ addressed the issue and determined that Tavaglione was not entitled to such benefits.

The ALJ found that Tavaglione had been injured during "an emergent and unpredictable foot chase" of a juvenile suspect, and determined that the claimed disability had been sustained in the performance of his job duties. According to the ALJ, the disability was caused by an event that was identifiable as to time and place, and was also undesigned and unexpected. The ALJ determined, however, that Tavaglione had not shown that he was totally and permanently disabled and could not perform his regular duties or any job function as a police officer.

Tavaglione and the PFRS filed exceptions to the ALJ's decision. The Board issued a written decision dated June 10, 2014, adopting the ALJ's decision that, as a result of his serious misconduct, Tavaglione had forfeited his entire PFRS service credit. The Board also adopted the ALJ's determination that Tavaglione was not totally and permanently disabled from performing his job duties, but modified the ALJ's decision and found that he had sustained an injury in an event that was not undesigned and unexpected. The Board determined that Tavaglione had not shown that the injury was "extraordinary or unusual in common experience."

On July 25, 2014, Tavaglione filed a notice of appeal from the Board's June 10, 2014 decision. Thereafter, Tavaglione's counsel wrote to the Board asking the Board to address his entitlement to ordinary disability retirement benefits, based upon a claimed psychological disability. Counsel noted that, with the original application, Tavaglione had submitted a report from Eugene M. Stefanelli, M.D., a psychiatrist. He asserted that, based on Dr. Stefanelli's report, Tavaglione was entitled to ordinary disability retirement benefits.

The Board issued a decision dated August 29, 2014, finding that Tavaglione was not entitled to ordinary disability retirement benefits. The Board found that Tavaglione had not established that he was totally and permanently disabled on a psychological basis. On September 18, 2014, Tavaglione filed an amended notice of appeal, challenging the Board's August 29, 2014 decision.

II.

On appeal, Tavaglione argues that the Board erred by: (1) ordering a total forfeiture of his PFRS service credits; (2) finding that he was not eligible for accidental disability retirement benefits; and (3) denying his application for an ordinary disability pension.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Russo v. Bd. of Tr., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld "'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Ibid. (quoting Herrmann, supra, 192 N.J. at 27-28). We are not, however, bound by the "'agency's interpretation of a statute or its determination of a strictly legal issue.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

A. Forfeiture of PFRS Service Credits.

Tavaglione notes that the forfeiture of a public employee's pension is governed by the factors enumerated in Uricoli v. Police & Firemen's Ret. Sys., 91 N.J. 62 (1982), and codified in N.J.S.A. 43:1-3(c). The eleven factors are

(1) the member s length of service; (2) the basis for retirement; (3) the extent to which the member s pension has vested; (4) the duties of the particular member; (5) the member s public employment history and record covered under the retirement system; (6) any other public employment or service; (7) the nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated; (8) the relationship between the misconduct and the member s public duties; (9) the quality of moral turpitude or the degree of guilt or culpability, including the member s motives and reasons, personal gain and similar considerations; (10) the availability and adequacy of other penal sanctions; and (11) other personal circumstances relating to the member which bear upon the justness of forfeiture.

[Ibid.]

The factors "must be balanced and then weighed in terms of the goals to be achieved under the pension laws." Uricoli, supra, 91 N.J. at 78.

Tavaglione does not dispute the Board's findings regarding factors one through seven, ten and eleven. Tavaglione argues, however, that the Board erred in its analysis of factors eight and nine. He contends that Board erroneously ordered the forfeiture of his pension based on a single act of misconduct that was committed off-duty, and was only a "quasi-crime." Tavaglione further argues that there was no direct relationship between his misconduct and his public duties as a police officer. He asserts that his misconduct does not demonstrate a high degree of moral turpitude warranting forfeiture of his pension credits.

We are not persuaded by these arguments. The Board's decision was not based solely upon its consideration of factors eight and nine, but rather was based on a balancing and weighing of all eleven factors. The ALJ properly took note of the seriousness of the offense, and pointed out that the "surrounding circumstances display[ed] the gravity of the situation." The ALJ wrote, "It is nothing short of a miracle that the petitioner did not further endanger his own life and the [lives] of other drivers."

The ALJ stated that drunk driving is a serious offense, and the arrest, prosecution and conviction of a police officer of that offense inherently touches upon his duties. His actions in driving while under the influence of intoxicating beverages were voluntary and created a public hazard that touched upon his moral turpitude.

The Board accepted these findings, which are supported by sufficient credible evidence in the record. Moreover, total forfeiture of petitioner's pension credits is not arbitrary, capricious or unreasonable, particularly in view of the serious nature of the misconduct, the high standards expected of police officers on and off duty, his relatively brief length of service of five years, six months, and the fact that his pension had not vested.

B. Accidental Disability Retirement Benefits.

As the ALJ and the Board determined, the forfeiture of Tavaglione's PFRS credits renders moot any claim to accidental disability retirement benefits. Nevertheless, the ALJ and the Board addressed the issue of whether he would otherwise be eligible for such benefits. Tavaglione argues that the Board erred by finding that he was not eligible for accidental disability retirement benefits. Again, we disagree.

In order to qualify for accidental disability retirement benefits, the applicant must show that he is

permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member s willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.

[N.J.S.A. 43:16A-7(1).]

Our Supreme Court has explained that to meet the statutory requirements, the applicant must prove

[1] he is permanently and totally disabled;

[2] as a direct result of a traumatic event that is [a] identifiable as to time and place, [b] undesigned and unexpected, and [c] caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);

[3] that the traumatic event occurred during and as a result of the member's regular or assigned duties;

[4] that the disability was not the result of the member's willful negligence; and

[5] that the member is mentally or physically incapacitated from performing his usual or any other duty.

[Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13, (2007).]

Here, there is sufficient credible evidence in the record to support the Board's determination that Tavaglione had not shown that he was physically disabled from performing his regular job or other assigned duties as a police officer. At the hearing, Tavaglione testified that he injured his foot and ankle when he scaled a five to seven foot fence in pursuit of a juvenile suspect. Tavaglione had two surgeries on his Achilles tendon, but claimed he continued to have difficulty running, maintaining a prone position, and participating in weapons-qualifications exercises.

Dr. Goldberger performed the two surgeries and thereafter cleared petitioner to return to duty. Dr. Goldberger testified, however, that by clearing petitioner for work, he only meant that Tavaglione was as good as he could be after two surgeries. He said it was up to Tavaglione's employer to determine whether he was fit to perform his duties as a police officer.

Tavaglione argues that any ambiguity as to Dr. Goldberger's intent by returning him to work should be dispelled by a letter dated October 6, 2010, which was included in Tavaglione's initial application. In that letter, Dr. Goldberger stated that Tavaglione was "unable to perform the activities of a police officer."

We are convinced, however, that there is sufficient credible evidence for the finding that Tavaglione had not shown he was totally and permanently disabled from the performance of his usual or other job duties as a police officer. It was not unreasonable for the ALJ and the Board to base their factual findings on Dr. Goldberger's decision to return Tavaglione to work without any specific restriction, and not to credit statements that the doctor later made in support of the pension application.

Moreover, as the ALJ pointed out, Dr. Lakin had examined Tavaglione and found that, as a result of the two surgeries, he had excellent strength and motion. Dr. Lakin found no observable deficits. Tavaglione argues that the ALJ and the Board erred by failing to give sufficient weight to Dr. Goldberger's testimony. He contends that the ALJ found Dr. Goldberger's testimony to be convincing, and implicitly rejected Dr. Lakin's testimony. The ALJ's decision does not, however, support that argument.

In view of our determination that there is sufficient evidence to support the determination that Tavaglione had not established that he is totally and permanently disabled, we need not consider whether the Board erred by finding, as an alternative basis for its decision, that Tavaglione was not injured as a result of an event that was undesigned or unexpected.

Accordingly, we conclude the record supports the Board's determination that Tavaglione was not entitled to accidental disability retirement benefits pursuant to N.J.S.A. 43:16A-7.

C. Ordinary Disability Benefits.

As we noted previously, after the Board denied Tavaglione's application for accidental disability retirement benefits, his attorney asked the Board to make a decision on whether he qualified for ordinary disability benefits. Tavaglione argued that Dr. Stefanelli's report, which had been submitted with the original application, established that he was totally and permanently disabled on a psychological basis.

In its decision of August 29, 2014, the Board determined that Tavaglione had not established that he was entitled to ordinary disability benefits. The Board noted that Dr. Stefanelli had not appeared to testify at the administrative hearing, and therefore his report was hearsay.

The Board pointed out that hearsay was admissible in an administrative proceeding, but it could not be the basis for the Board's ultimate determination, without corroboration or competent proof. The Board determined that there was insufficient credible evidence to show that Tavaglione was disabled on psychological grounds.

Tavaglione argues that the Board erred by finding he was not eligible for an ordinary disability pension. He contends his disability claim does not rest solely upon Dr. Stefanelli's report. He asserts that the facts concerning his drunk driving incident, which were stipulated by the parties, corroborated Dr. Stefanelli's diagnosis of alcohol abuse. He argues that, by failing to take these stipulated facts into consideration, the Board "exalted form [over] substance."

These arguments are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). We note, however, that the stipulated facts indicating that Tavaglione had been driving while intoxicated in Florham Park on July 22, 2010, do not corroborate Dr. Stefanelli's diagnosis of alcohol abuse, nor do they address the other psychological disorders mentioned in the doctor's report.

The Board correctly found that, standing alone, Dr. Stefanelli's report did not provide a sufficient factual basis for a finding that Tavaglione was totally and permanently disabled on a psychological basis. See Weston v. State, 60 N.J. 36, 51 (1972) (holding that an administrative fact-finding or decision cannot be based on hearsay alone, but must be supported by "a residuum of legal and competent evidence.") (citations omitted). Accordingly, the Board correctly found that Tavaglione failed to show that he was eligible for ordinary disability retirement benefits.

Affirmed.