ALONZO HERRAN v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM -

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5059-18T2

ALONZO HERRAN,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE
AND FIREMEN'S RETIREMENT
SYSTEM,

     Respondent-Respondent.
______________________________

                    Submitted September 30, 2020 — Decided October 9, 2020

                    Before Judges Mawla and Natali.

                    On appeal from the Board of Trustees of the Police and
                    Firemen's Retirement System, Department of Treasury,
                    PFRS No. 3-10-55607.

                    Fusco & Macaluso Partners, LLC, attorneys for
                    appellant (Amie E. DiCola, on the brief).

                    Robert Seymour Garrison, Jr., attorney for respondent
                    (Alison Keating, Deputy Attorney General, on the
                    brief).

PER CURIAM
      Appellant Alonzo Herran appeals from a June 11, 2019 final decision by

respondent the Board of Trustees, Police and Fireman's Retirement System

(Board) denying his request to re-open and change his retirement designation

from an ordinary disability retirement to an accidental disability retirement. We

affirm.

      Appellant was employed as a City of Newark police officer for fifteen

years. His tenure was marked by multiple violations of the Newark Police

Department's Rules and Regulations and the Civil Service Commission's Rules.

In 2012, the City filed disciplinary charges against appellant for allegedly

striking a civilian with the butt of his gun while off-duty and lying to superiors

about his actions.

      On July 29, 2016, the City filed disciplinary charges alleging "neglect of

duty," "malingering," and "feigning sickness or injury" because appellant posted

photos of himself on Facebook on vacation while on sick leave. Appellant's

employment was terminated on September 27, 2016.               He appealed the

termination three days later, resulting in a reduction of the termination to a

suspension from employment.

      On June 2, 2017, appellant applied for ordinary disability retirement

benefits, effective February 1, 2018. The City advised the Board appellant was

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ineligible for benefits because of the pending disciplinary charges. In January

2018, appellant and the City settled the 2012 charges and the City withdrew the

2016 charges. On May 15, 2018, the Board approved appellant's application,

effective February 1, 2018.

      On January 11, 2019, appellant asked the Board to reopen his retirement

application to obtain an accidental disability retirement. He certified he was

injured while detaining a suspect on March 9, 2016. He claimed he did not file

a report with his department because he did not require immediate medical

treatment but saw his doctor several days later when he began to develop chest

and shoulder pain. He certified he suffered from a left rotator cuff tear caused

by his work. Although appellant claimed he realized in the Fall of 2016 that his

pain was from the March 2016 incident, he certified as follows:

             [B]ecause of the pending disciplinary proceedings
             aga[]inst me, I did not want to make things worse for
             myself over an incident I had never reported to my
             department by filing for an accidental disability
             retirement. That is why I selected the ordinary
             disability option when I filed my application on June 2,
             2017.

      Appellant's request was denied on January 17, 2019, and he appealed to

the Board.    Citing N.J.A.C. 17:4-6.3(a) and 17:4-6.7(b), the Board denied




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appellant's request because he did not apply for accidental disability prior to the

Board's approval of ordinary disability retirement benefits.

      Appellant sought reconsideration and requested an administrative hearing,

which the Board denied. In its written findings, the Board found that appellant

had not demonstrated good cause to reopen the application. The Board also

denied the request for a hearing because the facts were undisputed, and relief

was barred by N.J.A.C. 17:4-6.3(a) and 17:4-6.7(b).

      On this appeal, appellant repeats the arguments that he demonstrated good

cause to re-open his retirement submission and the matter should have been

submitted to an administrative law judge (ALJ) to adjudicate. He contends there

is no statutory bar to re-opening his application because N.J.A.C. 17:4-6.3(a)

permits him to withdraw, cancel, or change his retirement before it becomes

payable. He asserts respondent is not prejudiced by the change and the delay in

the submission was due to the pending disciplinary charges, and because he

wanted to do his due diligence and investigate his medical condition to confirm

he was disabled. Appellant claims he was uninformed about his ability to

change his application.

      The "final determination of an administrative agency . . . is entitled to

substantial deference." In re Eastwick Coll. LPN-RN Bridge Program, 225 N.J.


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533, 541 (2016) (citing Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't

of Env't Prot.,  191 N.J. 38, 48 (2007)).

             An appellate court will not reverse an agency's final
             decision unless the decision is "arbitrary, capricious, or
             unreasonable," the determination "violate[s] express or
             implied legislative policies," the agency's action
             offends the United States Constitution or the State
             Constitution, or "the findings on which [the decision]
             was based were not supported by substantial, credible
             evidence in the record."

             [Ibid. (quoting Univ. Cottage Club of Princeton N.J.
             Corp.,  191 N.J. at 48).]

"Although an appellate court is 'in no way bound by the agency's interpretation

of a statute or its determination of a strictly legal issue,' if substantial evidence

supports the agency's decision, 'a court may not substitute its own judgment for

the agency's even though the court might have reached a different result.'" In re

Carter,  191 N.J. 474, 483 (2007) (internal citations omitted).

      The regulations governing the arguments raised by appellant are clear.

N.J.A.C. 17:4-6.3(a) states:

             Except as provided by N.J.A.C. 17:4-6.7, a member
             shall have the right to withdraw, cancel or change an
             application for retirement at any time before the
             member's retirement allowance becomes due and
             payable by sending a written request signed by the
             member. Thereafter, the retirement shall stand as
             approved by the Board.


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Retirement allowances become due and payable thirty days after Board

approval. N.J.A.C. 17:4-6.2.

      N.J.A.C. 17:4-6.7(b) states: "Once the Board approves a member for a

disability retirement allowance, the member's retirement application shall not be

withdrawn, canceled or amended." The Board can reopen a pension proceeding

if the retiree demonstrates "good cause, reasonable grounds, and reasonable

diligence . . . ." Steinmann v. N.J. Dep't of Treasury, Div. of Pensions, Tchrs.

Pension & Annuity Fund,  116 N.J. 564, 573 (1989).

      Appellant did not demonstrate good cause. His initial request to reopen

his retirement application acknowledged he "could have initially applied for the

accidental disability." However, he decided not to do so in order to not "make

things worse for [himself in the pending disciplinary proceedings] over an

incident [he] had never reported." Appellant's strategy was understandable

because considering his disciplinary history and the pending charges, he wanted

to assure his receipt of a disability retirement even though an accidental

disability retirement would pay him more.           Indeed, although accidental

disability retirees receive a greater payment, "ordinary disability retirement need

not have a work connection." Patterson v. Bd. of Trs., State Police Ret. Sys.,

 194 N.J. 29, 42 (2008) (citations omitted).


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      Appellant possessed the evidence necessary to submit an accidental

disability retirement application in a timely fashion and deliberately chose not

to do so. His assertion the decision was borne of a need to gather medical

evidence is unsupported by the record and appellant's own representations to the

Board.

      Appellant's assertion his decision was uninformed because he was

unrepresented by counsel lacks merit. The record reflects appellant had counsel

as of September 2017, several months prior to the May 2018 Board approval of

his application for ordinary disability retirement.

      Finally, a hearing is "mandated only when the proposed administrative

action is based on disputed adjudicatory facts."      In re Farmer's Mut. Fire

Assurance Ass'n of N.J.,  256 N.J. Super. 607, 618 (App. Div. 1992); see also

N.J.A.C. 17:4-1.7(e) (permitting the Board to retain the matter and issue an

administrative determination where an appeal "involves solely a question of

law."). We agree there were no disputed facts requiring adjudication before an

ALJ. The reasons for appellant's actions were not disputed and this matter

concerned whether those undisputed facts gave rise to the good cause necessary

for relief pursuant to N.J.A.C. 17:4-6.3(a). They did not.

      Affirmed.


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