NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3868-19
GERARDO NODA, JR.,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
Argued February 9, 2022 – Decided February 24, 2022
Before Judges Vernoia and Firko.
On appeal from the Board of Trustees of the Police and
Firemen's Retirement System, Department of the
Treasury, PFRS No. x-xx174.
Samuel M. Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on
the brief).
Robert S. Garrison, Jr., Director of Legal Affairs,
argued the cause for respondent (Robert S. Garrison,
Jr., attorney; Robert S. Garrison, Jr., on the brief).
PER CURIAM
In a final decision, the Board of Trustees (the Board) of the Police and
Firemen's Retirement System (PFRS) determined petitioner Gerardo Noda, Jr.,
is ineligible to receive ordinary disability retirement benefits because he
irrevocably resigned from his position as a police officer with the Township of
Lacey Police Department. Petitioner appeals from the decision, claiming the
Board erred because he is permanently disabled and therefore entitled to benefits
despite his resignation. Unpersuaded by petitioner's arguments, we affirm.
In 2005, petitioner commenced his employment as a police officer with
the Township. On June 2, 2011, petitioner spent the day at a shooting range
firing his service weapon. When he concluded the session, he returned to a
squad room to disassemble and clean his handgun. Petitioner testified he had
difficulty disassembling the weapon, and he explained that to do so, it was
necessary to fire the gun while it was unloaded. Believing his gun was unloaded,
petitioner fired the weapon in the squad room with other officers present. A
bullet discharged from the weapon and struck another officer, causing what
turned out to be a minor injury. Petitioner was taken home following the
incident.
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In accordance with the police department's policy concerning officer-
involved shootings, petitioner was immediately reassigned from street patrol to
dispatch duty. Within two days of the incident, he was evaluated at the Institute
for Forensic Psychology. He was also questioned by the police department's
internal affairs unit as part of its investigation of the shooting incident.
On July 6, 2011, the department served petitioner with a Preliminary
Notice of Disciplinary Action stating its intention to remove him from his
position on July 28, 2011, based on twelve separate charges arising from the
shooting incident. The notice asserted petitioner committed five offenses for
conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); six violations
of the Lacey Township Police Department Rules; and one claim there was other
sufficient cause for his removal, N.J.A.C. 4A:2-2.3(a)(12), based on petitioner's
violation of a termination agreement. 1
1
In its description of the charges in the Preliminary Notice of Disciplinary
Action, the police department refers to the "[o]ther" sufficient cause provision
of N.J.A.C. 4A:2-2.3, but mistakenly cites to a clearly inapplicable provision of
the regulation—subparagraph "(11)"—which pertains to violations of residency
requirements. In our summary of the charges, we cite to the correct portion of
the regulation—subparagraph (12)—which provides that an employee is subject
to discipline for "[o]ther sufficient cause." N.J.A.C. 4A:2-2.3(a)(12).
A-3868-19
3
On July 27, 2011, petitioner submitted a letter finally and irrevocably
resigning from his position as a Township police officer. 2 He also executed a
Resignation Agreement stating he had been served with the Preliminary Notice
of Disciplinary Action "seeking the termination of his employment as a Lacey
Township Police Officer," and that the purpose of the agreement was "to resolve
the timing, terms, and procedure of his cessation of [his] employment" and
resignation. He further signed a General Release in "consideration for the
Township of Lacey's agreement to convert [his] termination into a resignation."
The General Release explained petitioner reserved his right to apply to PFRS
for a disability pension, but none of the documents executed by petitioner related
to his resignation and the termination of his employment state that his disability
was the reason for his resignation.
Petitioner filed an application for accidental disability retirement benefits
on July 27, 2011. The Board denied the application in a May 15, 2012 letter.
Petitioner appealed from the denial, the matter was referred to the Office of
Administrative Law as a contested case, and an administrative law judge (ALJ)
was assigned to conduct a hearing.
2
Petitioner resigned effective July 31, 2011.
A-3868-19
4
At the outset of the hearing, petitioner stipulated that he no longer sought
accidental disability retirement benefits and instead requested an award of
ordinary disability retirement benefits. During the two-day hearing, petitioner
testified on his own behalf, and he presented the testimony of Dr. Daniel B.
Gollin, who was qualified as expert in general psychiatry. PFRS presented the
testimony of Dr. Daniel B. LoPreto as an expert in clinical psychology. The
experts offered differing opinions on whether petitioner suffered from a
psychological or psychiatric condition resulting in a disability. Various reports
and records from petitioner's treatment were also admitted in evidence.
The ALJ was persuaded by Dr. Gollin's testimony that petitioner suffered
from a disability, and she determined petitioner proved he is disabled from his
position as a police officer. However, she also found petitioner ineligible to
receive ordinary disability retirement benefits. "Applying" our holding in
Cardinale v. Board of Trustees, Police & Firemen's Retirement System, 458 N.J.
Super. 260 (App. Div. 2019), the ALJ found petitioner "final[ly] and
irrevocabl[y]" resigned as part of a settlement agreement that terminated
disciplinary charges against him, and she concluded petitioner is ineligible to
A-3868-19
5
receive ordinary disability retirement benefits because he is unable to return to
work, as required under N.J.S.A. 43:16A-8(2), if his disability status changes. 3
In its final decision, the Board adopted the ALJ's determination petitioner
is not eligible for ordinary disability retirement benefits because he "resigned
from [his] position as the result of a signed settlement agreement stipulating
[his] irrevocable resignation." 4 The Board explained petitioner is ineligible to
receive benefits because if it is later determined he is no longer disabled, he
could not be directed to return to work as required under N.J.S.A. 43:16A-8(2).
The Board explained that "[g]ranting a disability retirement under [those]
circumstances would be in contravention of the statutory scheme, and place [it]
in the position of potentially paying a disability pension[,] which [it] has no
3
In her decision, the ALJ also referred to N.J.A.C. 17:1-6.4(b), which provides
in part that PFRS members "will not be permitted to apply for a disability
retirement" if they voluntarily or involuntary terminate their service pursuant to
a "settlement agreement[] reached due to pending administrative or criminal
charges, unless the underlying charges relate to the disability." N.J.A.C. 17:1 -
6.4(b)(2). The regulation became effective on June 20, 2016, 48 N.J.R. 1306(a)
(June 20, 2016), almost five years after petitioner's resignation. Neither the ALJ
nor the Board relied on the regulation as a basis for their decisions, and we
therefore do not consider it as a basis supporting the Board's final decision.
4
The Board inaccurately found the ALJ determined petitioner did not prove he
is disabled. It is unnecessary to consider or address that erroneous finding
because the Board's determination petitioner is ineligible for the benefits is not
based on a determination petitioner is not disabled.
A-3868-19
6
ability or mechanism to terminate if the member is no longer totally and
permanently disabled." This appeal followed.
Our review of an agency determination is limited. Allstars Auto Grp., Inc.
v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citing Russo v. Bd.
of Tr., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). We "may not
substitute [our] own judgment for the agency's, even though [we] might have
reached a different result." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting
In re Carter, 191 N.J. 474, 483 (2007)).
"An agency's determination on the merits 'will be sustained unless there
is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks
fair support in the record.'" Saccone v. Bd. of Tr., Police & Firemen's Ret. Sys.,
219 N.J. 369, 380 (2014) (quoting Russo, 206 N.J. at 27). Our review is limited
to the following three inquires:
(1) whether the agency's actions violate[] express or
implied legislative policies, that is, did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
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[Allstars Auto Grp., 234 N.J. at 157 (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)).]
"The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006). We review
de novo "an agency's interpretation of a statute or case law." Russo, 206 N.J. at
27.
Petitioner argues he is entitled to ordinary disability retirement benefits
because he tendered his irrevocable letter of resignation due to his disability and
not as a result of the disciplinary charges. He also contends the ALJ and the
Board erred in their application of our decision in Cardinale. We are not
persuaded.
In Cardinale, the petitioner, a former police officer, voluntarily and
irrevocably resigned from his position under a settlement agreement after he was
suspended for a positive drug test. 458 N.J. Super. at 264-65. We held "that
when a PFRS member—here a police officer—voluntarily irrevocably resigns
from active service, such a separation from employment automatically renders
the individual ineligible for ordinary disability benefits." Id. at 263 (emphasis
added). We found the petitioner's claimed disability "irrelevant to our holding
A-3868-19
8
that his irrevocable resignation made him ineligible for benefits in the first
place." Id. at 268.
We explained the applicable PFRS statute, N.J.S.A. 43:16A-8(2), directs
that a public employee who retires due to disability but then recovers sufficiently
to "perform either his former duty or any other available duty in the department
which his employer is willing to assign to him[,] . . . shall report for duty." Id.
at 269 (emphasis added). This statutory requirement provides a way "to return
the previously disabled retiree to work as if that individual had never suffered a
disability or interruption of service," id. at 270; see also In re Terebetski, 338
N.J. Super. 564, 570 (App. Div. 2001), and strikes a balance between "a worker's
interest with those of an employer and the public by requiring PFRS workers—
upon rehabilitation—to forgo the benefits and return to work." Cardinale, 458
N.J. Super. at 270. We concluded the statute's purpose is undermined if the
Board "cannot statutorily cease paying any approved disability benefits, once
they have begun, for an individual who voluntarily resigns from duty to settle
disciplinary charges and agrees never to return." Id. at 270-73.
Our holding in Cardinale applies with syllogistic precision here. It is
undisputed petitioner irrevocably resigned from his position as a police officer.
A-3868-19
9
That fact alone "automatically" rendered him ineligible for disability retirement
benefits. Id. at 263.
Petitioner's claim he resigned due to his disability does not require a
different result for two reasons. First, as we explained in Cardinale, an
irrevocable resignation from employment alone renders an individual ineligible
for retirement benefits. See id. at 269 (finding "the consequence of" an
"irrevocable resignation is determinative" of an applicant's eligibility for
disability benefits). Second, even assuming a resignation based on a disability
renders petitioner eligible for the benefits, he did not sustain his burden of
proving his resignation was based on his disability, and the evidence, including
the documents he signed, establish it was not. See In re Arenas, 385 N.J. Super.
at 443-44. Additionally, we accept the ALJ's finding petitioner "resigned from
his position as part of a settlement agreement ending disciplinary charges filed
against him as a result of the June 2, 2011 incident" because it is supported by
substantial credible evidence in the record. See In re Taylor, 158 N.J. 644, 657
(1999) (explaining a reviewing court "must uphold" an agency's findings that
are supported by "sufficient credible evidence in the record").
At oral argument, petitioner asserted that the law applicable when
petitioner applied for benefits in 2011, long prior to our decision in Cardinale,
A-3868-19
10
allowed a PFRS member to receive ordinary disability retirement benefits
following an irrevocable resignation. We reject this argument because it is not
supported by a citation to any supporting statute or decisional precedent. The
argument is also undermined by our decision in In re Adoption of N.J.A.C. 17:1-
6.4, where we addressed a challenge to the validity of N.J.A.C. 17:1-6.4, which
was adopted in 2016 and embodies what we characterized as "the separation
from service rule." 454 N.J. Super. 386, 397 (App. Div. 2018).
In pertinent part, the regulation bars a PFRS member "from applying for
a disability retirement if they voluntarily terminate service," id. at 398, based on
a "[s]ettlement agreement[] reached due to pending administrative or criminal
charges, unless the underlying charges relate to the disability," 5 ibid. (quoting
N.J.A.C. 17:1-6.4). In N.J.A.C. 17:1-6.4, we expressly rejected a claim, like the
one asserted by petitioner here, that the separation from service rule embodied
in the regulation eliminated benefits to which members had previously been
entitled. Id. at 404. We explained "the separation from service rule takes
nothing away from members. Members who leave public service for reasons
5
Petitioner neither claimed nor produced any evidence the disciplinary charges
against him related to his disability, and the evidence established they were not.
The disciplinary charges were founded solely on petitioner's discharge of his
weapon on June 2, 2011, that resulted in an injury to another officer.
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unrelated to a disability are not entitled to disability retirement benefits in the
first instance." Ibid. We concluded the enactment of the regulation was
consistent with the statutory scheme, and therefore "[n]othing [was] taken away"
by its application. Ibid. In other words, contrary to petitioner's claim he was
entitled to disability retirement benefits at the time he resigned, our decision in
N.J.A.C. 17:1-6.4 establishes he was never entitled to the benefits under the
applicable statutes in the first instance.
Any remaining arguments made on petitioner's behalf 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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