A recent opinion rendered by the Appellate Division has important implications for all law enforcement officers, and all public employees for that matter, who are considering applying for disability retirement while simultaneously fighting disciplinary charges.  The case, Cardinale v. Board of Trustees, Police and Firemen’s Retirement System, A-1997-17T1, involved a police officer who was subject to disciplinary charges in connection with a positive drug screening. The officer initially admitted to using cocaine, completed drug and alcohol treatment, but then tested positive for the substance thereafter.  The officer was charged with violating departmental rules and regulations and was suspended from duty. While the disciplinary charges were pending an initial hearing, the officer submitted an application for ordinary disability retirement benefits with the Board of Trustees for the Police and Firemen’s Retirement System (“the Board”).

A hearing was eventually conducted in the officer’s disciplinary matter and the charges lodged against him were sustained, resulting in his termination from duty. The officer then appealed the termination but managed to settle the disciplinary action while the appeal was pending. In short, the officer agreed to irrevocably resign in exchange for the department’s withdrawal of his termination.

The officer then turned his attention to the application for disability retirement he filed with the Board. The Board, however, declined to process his application in light of his resignation from the department that came about as a result of the settlement he reached in his disciplinary proceeding.  The Board noted that it would have no statutory authority to stop paying benefits to the Officer if his disability later ended. The matter was then transmitted to the Office of Administrative Law before an Administrative Law Judge (“ALJ”). Ultimately,  the ALJ sided with the Board. The ALJ held that because the officer had irrevocably resigned from the police department, neither the department nor the Board would be able to fulfill their statutory obligations to reinstate plaintiff and terminate his benefits.

The Officer then appealed the matter to the Appellate Division. There, the appellate court likewise agreed with the Board and affirmed its refusal to process the officer’s application for ordinary disability retirement benefits.  It affirmed the position taken by the Board that once a PFRS member irrevocably resigns his/her position, he/she is ineligible for ordinary disability benefits because he/she cannot return to their position as required by the disability retirement statutes if their disability ends.  Thus, the court noted that the Board would never be able to terminate that person’s benefits.

The statutory requirement at issue stems from N.J.S.A. 43:16A-8(2), which calls for an employer to return a previously disabled employee back to work if that individual is no longer disabled and thus, no longer entitled to disability retirement benefits. Therefore, the Appellate Division held that entertaining an ordinary disability retirement application for members who irrevocably resign from service to settle disciplinary charges would violate public policy, contravene the above-referenced statutory framework, and encourage abuse of the disability retirement system.

The import of this particular decision involves its impact on an officer’s ability to settle pending disciplinary charges. In sum, if you are weighing an application for disability retirement and also have disciplinary charges pending, keep in mind that irrevocable resignation is not a viable option to resolve the latter if you still intend on pursuing the former.

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Photo of Michael DeRose Michael DeRose

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey…

Michael P. DeRose is a shareholder at the firm and primarily focuses his practice in labor/ employment law and other aspects of civil litigation, such as contract disputes. He has litigated and tried hundreds of matters before the Superior Court of New Jersey, the Office of Administrative Law and the New Jersey Public Employment Relations Commission on behalf of various labor unions and their members. Michael has extensive experience defending and fighting for members of law enforcement and other public employees facing adverse disciplinary action, such as termination or suspension from employment. He also frequently argues before New Jersey’s Appellate Division on behalf of his clients.

A large portion of his practice is also devoted to contract negotiations on behalf of union clients, representing such clients in grievance arbitration/ contract disputes, and otherwise advising union leaders on labor and employment matters.  Michael also has significant experience in the realm of interest arbitration on behalf of the firm’s law enforcement and firefighter unions. As a result of the firm’s robust labor and employment practice, Michael regularly appears before various state agencies, such as the New Jersey Civil Service Commission, the New Jersey Division of Pensions and Benefits, the State Health Benefits Commission, and NJ PERC. In addition to representing labor unions and active employees, Michael also represents retirees before the Division of Pensions in disability retirement applications, both ordinary and accidental disability retirement, in pension forfeiture actions, and in other miscellaneous pension disputes. He also counsels private business and their principals in contract and employment law, in addition to representing their interests in civil litigation. Michael has a track record of obtaining favorable outcomes for his clients and treats each everyone of them on an individual and particularized basis in accordance with their needs.

Before joining the firm in August of 2015, Michael was an associate counsel at a civil litigation firm out in Trenton, New Jersey, where he principally focused his practice around employment law and tort claims litigation. Prior to that, he served as a law clerk in the Superior Court of New Jersey for the Honorable F. Patrick McManimon, Mercer County Vicinage, from September of 2012 to August of 2013, where he attained significant experience in the realm of alternative dispute resolution having mediated well-over one-hundred cases, primarily related to commercial and residential landlord/ tenant disputes and contract/ business litigation. He earned his Juris Doctorate in 2012 after graduating from the Western Michigan University-Thomas M. Cooley School of Law. In 2007, he earned his Bachelor of the Arts in Criminal Justice and Public Administration from Kean University where he was a member of the Kean University baseball team and vice president of the Alpha Phi Sigma chapter of the National Criminal Justice Honor Society.

Michael is admitted to the New Jersey State Bar, the United States Federal Court for the District of New Jersey, and is a member of the Mercer County Bar Association.