ERIC STRAUB v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM -
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2308-19
ERIC STRAUB,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
Argued January 31, 2022 – Decided April 12, 2022
Before Judges Fasciale and Sumners.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. x-xx-xx766.
Herbert J. Stayton, Jr., argued for appellant.
Thomas R. Hower, Staff Attorney, argued for
respondent (Robert Seymour Garrison, Jr., Director of
Legal Affairs, PFRSNJ, attorney; Thomas R. Hower, on
the brief).
PER CURAIM
The dispute over petitioner Eric Straub's disability benefits returns to us
following our affirmance of the respondent Board of Trustees of the Police and
Firemen's Retirement System's (Board) November 13, 2017 final agency
decision. The Board held that Straub was not entitled to accidental disability
retirement benefits under N.J.S.A. 43:16A-7, but instead granted him ordinary
disability retirement benefits under N.J.S.A. 43:15A-42. Straub v. Board of
Treasury, Police & Firemen's Ret. Sys., No. A-1888-17 (App. Div. August 8,
2019) (slip op. 8-9), certif. denied, 240 N.J. 550 (2020).
About two months after our unpublished decision, Straub sent a letter to
the Board requesting "to appeal" its decision granting him ordinary disability
benefits and to grant him involuntary disability retirement benefits instead. In
an October 23, 2019 letter, the Board's secretary, Lisa Pointer, advised Straub
that he was not eligible to receive involuntary disability retirement benefits
because his former employer, Township of Monroe (Township), did not submit
an involuntary disability retirement application on his behalf and "a resolution
. . . indicating that [he was] totally and permanently disabled from fulfilling [his]
job duties." She further advised his request was deficient because he did not
appeal the Board's November 13, 2017 final agency decision to this court within
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forty-five days of the November 15, 2017 notice of the decision and that an
extension of time to appeal could only be granted by this court.
In response to Pointer's letter, Straub's counsel got involved by writing to
Pointer demanding the Board take formal action on Straub's request for
reconsideration of his benefits. Counsel also asked that the Township be
authorized to apply for involuntary disability retirement benefits for Straub,
stating reconsideraion was based on the "Supreme Court['s] decision in
[Minsavage for] Minsavage v. Board of Trustees, Teachers' Pension and Annuity
Fund, [ 240 N.J. 103 (2019)]." After not receiving a response to his letter,
counsel sent an almost identical "SECOND REQUEST" letter to Pointer
restating Straub's demands.
Pointer emailed a reply to counsel reiterating that the Township never
filed an involuntary disability retirement application for Straub. She further
pointed out that the Township "never adopted a resolution specifically proposing
to seek [i]nvoluntary . . . [d]isability [retirement] benefits on behalf of []Straub."
She explained, "[t]he resolution by the Township dated August 6, 2014[,] was
for entering into a settlement agreement [with Straub], not the processing of an
[i]nvoluntary . . . [d]isability retirement benefit." Pointer, again, advised that
the proper recourse for Straub to seek involuntary disability retirement benefits
A-2308-19
3
was to have timely appealed the Board's November 13, 2017 final agency
decision granting him ordinary disability benefits to this court.
Straub now appeals the Board's decision denying his request to reconsider
its previous decision granting him ordinary disability retirement benefits by
granting him involuntary disability retirement benefits. 1
There is no merit to Straub's request that the Board reclassify his ordinary
disability retirement benefits to involuntary disability retirement benefits. He
has not demonstrated grounds for reversal by showing "the agency's action was
arbitrary, unreasonable or capricious." Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993).
1
In granting Straub's motion to file his notice of appeal as within time, we
determined "[t]he appeal shall proceed as to the Board[] [Secretary's] October
23, 2019 letter, but without prejudice to the Board challenging the applicability
of the October 23, 2019 letter, because it is not a final agency decision that is
applicable as of right." The Board, however, did not subsequently contend in
its merits brief that the October 23, 2019 letter was not a final agency decision.
Although we have some concerns whether the letter constitutes a final agency
decision, we do not address the issue because the Board has not raised the issue
in opposition to this appeal. See e.g. De Nike v. Bd. of Trs., Emps. Ret. Sys. of
N.J., 34 N.J. 430, 436 (1961) (finding a Board secretary's letter stating that the
Board of Trustees held a meeting and voted that it was "impossible" to accede
to petitioner's request to change her husband's retirement allowance was not a
final agency decision).
A-2308-19
4
As a member of the Police and Firemen's Retirement System (PFRS),
Straub's eligibility for involuntary disability retirement benefits is governed by
statute and regulation. N.J.S.A. 43:16A-6(3) defines who is eligible, providing:
Notwithstanding the provisions of subsection (2) of this
section, a member who has more than 20 but less than
25 years of creditable service and who is required to
retire upon application by the employer . . . shall
receive an ordinary disability retirement allowance
which shall consist of:
(a) An annuity which shall be the actuarial equivalent
of the member’s aggregate contributions; and
(b) A pension in the amount which, when added to the
member’s annuity, will provide a total retirement
allowance of 50% of final compensation plus 3% of
final compensation multiplied by the number of years
of creditable service over 20 but not over 25.
[(Emphasis added.)]
N.J.A.C. 17:1-7.8(a) details the process for a PFRS member to obtain
involuntary disability retirement, stating, in pertinent part: "Applications for
the involuntary disability retirement of an employee of a local employer must
be accompanied by a resolution of the governing body, . . . certifying that the
employee is disabled and unable to perform the employee's regular or assigned
duties."
A-2308-19
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Furthermore, N.J.A.C. 17:4-6.10 specifies the additional requirements for
applications:
(a) If an application for an accidental disability
retirement benefit or for an ordinary disability
retirement benefit is filed by an employer for an
employee, the member will be promptly notified by
letter that:
1. The member's employer has properly initiated
a disability application signed by the Certifying
Officer or other designated officer of the
employer, on the member's behalf;
2. The member's employer has submitted a
written statement as to the grounds for the
employer's request for the member's involuntary
disability retirement and all available medical
documentation; and, if appropriate;
3. The member's employer has certified that the
member should be retired as a direct result of a
traumatic event occurring during and as a result
of the performance of the member's regular or
assigned duties;
4. The member has a period of 30 days to contest
the involuntary retirement before the Board acts
on the employer's application;
5. The member will be required to appear for an
examination before a physician designated to
conduct such an examination for the retirement
system; and
6. In the event the Board finds that the member
is totally and permanently incapacitated for the
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performance of duty, the member shall be granted
a retirement allowance; and
7. In the event the Board finds that the member
is not totally and permanently incapacitated for
the performance of duty, the employer's
application shall be disallowed and the employer
shall be informed that the member should be
returned to duty.
Moreover, potential retirees are advised through the Board's Fact Sheet
#16, which states, in relevant part:
[An] employer has the right to apply for an Involuntary
Disability Retirement on [the employee's] behalf
provided that [the employee] meet the qualifications for
a Disability Retirement. Along with the retirement
application . . . local employers must provide a copy of
a resolution adopted by the governing body stating that,
in the employing authority's opinion, the employee is
totally and permanently disabled from fulfilling his or
her job duties (include any pertinent medical records).
The plain language of these controlling guidelines is clear and
unambiguous: only the Township, Straub's employer, can apply for involuntary
disability retirement benefits for him through the passing of a resolution stating
he "is disabled and unable to perform the employee's regular or assigned duties."
N.J.A.C. 17:1-7.8. The Board properly interpreted and applied the relevant
regulations as set forth in its secretary's October 23, 2019 letter to Straub and
the follow-up email to his counsel denying his unilateral request to change his
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retirement benefits from ordinary disability to involuntary disability. The
Township never passed the required resolution2 and applied for Straub to receive
involuntary disability benefits. Therefore, Straub had no standing to request the
change in disability retirement benefits.
In addition, the Board correctly decided that Straub's reconsideration
request was procedurally deficient. His request was in essence an appeal of the
Board's November 13, 2017 final agency decision awarding him ordinary
disability retirement benefits and denying him the accidental disability
retirement benefits he sought; thus, he should have appealed that decision and
requested reclassification within forty-five days. See N.J.A.C. 17:1-1.3(b) and
(d). Although Straub appealed that decision, his challenge was limited to his
effort to obtain accidental disability retirement benefits, which, as noted, we
denied.
Straub's reliance on Minsavage for Minsavage is misplaced. There, our
Supreme Court held that neither membership nor prior approval of a retirement
2
The Township only approved a resolution pertaining to its settlement with
Straub, which acknowledged he "is disabled and will not be able to return to his
duties." The resolution, however, did not state that Straub was totally and
permanently disabled, and it even allowed for his possible return to work,
providing, "[i]n the event [he is denied disability] pension, [he] will be
reinstated."
A-2308-19
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application is required for a widow seeking modification of her deceased
husband's retirement application where good cause, reasonable grounds, and
reasonable diligence are shown. 240 N.J. at 105. That is distinct from the
situation here where Straub sought to change his retirement benefits from
ordinary disability to involuntary disability benefits, which his employer did not
apply for as required by law.
In sum, Straub has not shown that the Board violated express or implied
legislative policies, or acted arbitrarily, capriciously, or unreasonably . See
Saccone v. Bd. of Trs., PFRS, 219 N.J. 369, 380 (2014).
Any arguments made by Straub that we have not expressly addressed are
without sufficient merit to warrant discussion in this opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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