                                NOT FOR PUBLICATION WITHOUT THE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-1723-18T1

MIDDLESEX COUNTY
SHERIFF'S OFFICER
THALIA TRETSIS,

          Petitioner-Appellant,

v.

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

     Respondent-Respondent.
___________________________

                   Submitted May 18, 2020 – Decided June 24, 2020

                   Before Judges Rothstadt and Mitterhoff.

                   On appeal from the Board of Trustees of the Police and
                   Firemen's Retirement System, Department of the
                   Treasury.

                   C. Elston & Associates, LLC, attorneys for appellant
                   (Catherine Mary Elston, of counsel; Catherine Mary
                   Elston and Cathlene Y. Banker, on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae, Assistant Attorney General, of
            counsel; Porter Ross Strickler, Deputy Attorney
            General, on the brief).

PER CURIAM

      Appellant Thalia Tretsis appeals from a November 8, 2018 final

administrative determination of the Board of Trustees for the Police and

Firemen's Retirement System (the Board) that upheld its prior decision to hold

Tretsis' application for retirement disability benefits in abeyance until a separate

action she filed, contesting her removal, was fully adjudicated.

      Tretsis was injured on the job while working as a sheriff's officer in the

Middlesex County Sheriff's Office (MCSO). Thereafter, she was suspended and

removed from her position, after the MCSO determined she was unable to

perform the essential duties of her job.

      Tretsis filed an application seeking to recover accidental disability

retirement benefits from the Police and Firemen's Retirement System (PFRS).

She also appealed her removal, and the matter was transferred to the Office of

Administrative Law (OAL). The Administrative Law Judge (ALJ) placed the

appeal of Tretsis' removal on an inactive case list to allow Tretsis to pursue her

benefits application first. The Board determined that it could not decide Tretsis'

benefits application until the OAL fully adjudicated her removal appeal. Tretsis



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                                           2
appealed, but the Board upheld its decision. Having reviewed the record, and

in light of the applicable legal principles, we affirm.

                                         I.

       We discern the following facts from the record. Tretsis enrolled in the

PFRS on December 20, 2008 when she was hired by the New Jersey Department

of Corrections–Adult Diagnostic and Treatment Center. She changed jobs and

became a sheriff's officer at the MCSO in June 2013. On March 6, 2015, she

injured her right knee when she lost her footing and slipped on ice in the parking

lot.

       In September 2017, Tretsis received a preliminary notice of disciplinary

action (NODA) from the MCSO. It detailed that she was charged for being

unable to perform her duties, N.J.A.C. 4A:2-2.3(a)(3); other sufficient cause,

N.J.A.C. 4A:2-2.3(a)(12); and being physically unfit for duty, in violation of

Sheriff's Office Rule and Regulation 3:2.11. It also contained a statement that

the MCSO found she was unable to perform the essential functions of a sheriff's

officer.

       In accordance with the preliminary NODA, Tretsis was suspended and

removed from her position. She requested a departmental hearing, which the




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                                         3
MCSO held on October 25, 2017. Two days later, Tretsis filed a separate

application seeking accidental disability retirement benefits from the PFRS.

      Tretsis received a final NODA on November 20, 2017, sustaining all

charges against her and upholding her removal. On December 1, 2017, she

appealed her removal. Later that month, the appeal was transferred to the OAL

for a hearing. At a hearing before the ALJ on February 26, 2018, both Tretsis

and the MCSO requested that Tretsis' removal appeal be placed on an inactive

list so her benefits action could be decided first. The ALJ found this course of

action advisable.

      On March 20, 2018, a supervisor with the Division of Pensions and

Benefits' (the Division) Disability Retirement Section, wrote to Tretsis' attorney,

advising her that the Division was holding Tretsis' application for benefits in

abeyance pending the resolution of her removal appeal, citing to N.J.A.C. 17:1-

6.2(d). That same day, the ALJ placed Tretsis' appeal on the inactive list for six

months.

      Tretsis' attorney wrote to the Division on March 27, 2018, advising it of

the ALJ's order placing the removal appeal on the inactive list and requesting

that the Division process Tretsis' benefits application. The Division responded

several days later, reiterating its position that it needed to hold the benefits


                                                                           A-1723-18T1
                                        4
application in abeyance pending the outcome of Tretsis' removal appeal. It also

expressed concern that Tretsis was disputing being unfit to perform her essential

job functions in the removal appeal, while at the same time seeking disability

retirement benefits based on an alleged disability. Tretsis' attorney responded

on April 10, 2018, requesting that the Pension Board attorney review the matter.

On May 17, 2018, Tretsis appealed the Division's decision.

      The Board sent Tretsis' attorney a letter on July 10, 2018, stating that it

was denying the request to process Tretsis' benefits application. In so deciding,

the Board again relied on N.J.A.C. 17:1-6.2(d). The Board confirmed that it

would take no action until receiving proof that any litigation challenging Tretsis'

removal was concluded, including any appeals. On August 23, 2018, Tretsis

appealed the Board's decision.

      On November 8, 2018, the Board issued a final administrative decision on

Tretsis' appeal of its decision to hold her benefits application in abeyance and

affirmed its prior ruling. Relying on N.J.A.C. 17:1-6.2(d), it again concluded

that it could not process Tretsis' benefits application until her removal appeal

was fully adjudicated. In support of its position, the Board also cited to our

decision in Ensslin v. Board of Trustees, Police & Firemen's Retirement System,

311 N.J. Super. 333 (App. Div. 1998). The Board explained that we stated that


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                                        5
matters involving employment rights must be settled before benefits

applications can be considered.        Finally, it concluded that it would be

inappropriate to consolidate Tretsis' benefits application with her appeal, as the

matter was uncontested. Thus, the Board upheld its prior decision to hold

Tretsis' benefits application in abeyance until it received sufficient evidence that

her removal action had been fully adjudicated. This appeal ensued.

      On appeal, Tretsis raises the following arguments:

            [I.] THE BOARD ACTED ARBITRARILY,
            CAPRICIOUSLY, AND UNREASONABLY IN
            CONCLUDING THAT IT IS REQUIRED TO HOLD
            [TRETSIS'] APPLICATION FOR ACCIDENTAL
            DISABILITY RETIREMENT IN ABEYANCE UNTIL
            THE PENDING APPEAL OF HER REMOVAL
            BEFORE THE CIVIL SERVICE COMMISSION IS
            FULLY RESOLVED.

            A. THE BOARD MISINTERPRETED N.J.A.C. 17:1-
            6.2(d) AS IMPOSING A PER SE PROHIBITION
            AGAINST THE PROCESSING OF A MEMBER'S
            DISABILITY    RETIREMENT    APPLICATION
            WHERE THERE IS PENDING LITIGATION
            PERTAINING TO THE MEMBER'S EMPLOYMENT.

            B. THE BOARD MISINTERPRETED THE HOLDING
            IN ENSSLIN[.]

            C. CONTRARY TO THE SUGGESTION OF THE
            BOARD, THE PROCESSING OF [TRETSIS']
            DISABILITY RETIREMENT APPLICATION IS NOT
            BARRED BY THE DOCTRINE OF JUDICIAL
            ESTOPPEL.

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                                         6
We address each argument in turn.

                                        II.

      "The judicial capacity to review administrative agency decisions is

limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally, we will

"intervene only in those rare circumstances in which an agency action is clearly

inconsistent with its statutory mission or with other State policy." George

Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if "the

agency's action was arbitrary, capricious, or unreasonable" should it be

disturbed. Brady, 152 N.J. at 210.

      When we "review . . . an agency's interpretation of statutes within its scope

of authority and its adoption of rules implementing its enabling statutes, we

afford the agency great deference." N.J. Soc'y for the Prevention of Cruelty to

Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008); TAC Assocs. v. N.J.

Dep't of Envtl. Prot., 202 N.J. 533, 541 (2010) ("[I]nterpretations of [a] statute

and cognate enactments by agencies empowered to enforce them are given

substantial deference in the context of statutory interpretation."); In re Agric.,

Aquacultural, & Horticultural Water Usage Certification Rules, N.J.A.C. 7:20A-

1.1 et seq., 410 N.J. Super. 209, 222 (App. Div. 2009). "Such deference is

appropriate because it recognizes that 'agencies have the specialized expertise


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                                        7
necessary to enact regulations dealing with technical matters and are

"particularly well equipped to read . . . and to evaluate the factual and technical

issues that . . . rulemaking would invite."'" In re Freshwater Wetlands Prot. Act

Rules, 180 N.J. 478, 489 (2004) (alterations in original) (quoting N.J. State

League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999)).

However, although we afford great deference to an agency's interpretation, we

are not bound by its interpretation of a statute or a legal issue. Mondsini v.

Local Fin. Bd., 458 N.J. Super. 290, 297 (App. Div. 2019).

                                       III.

      Tretsis first argues that the Board misconstrued N.J.A.C. 17:1-6.2(d). She

argues that the regulation does not absolutely bar the Board from processing her

benefits application while her removal appeal is pending. We disagree.

      In order for an employee to recover disability retirement benefits under

the PFRS, the employee must be

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


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                                        8
            [N.J.S.A. 43:16A-7(a)(1).]

N.J.A.C. 17:1-6.2, entitled "Indictments, dismissals, litigation, or appeals,"

provides, in relevant part,

            (a) When a member is subject to criminal charges .      ..
            or dismissed from public employment due                 to
            administrative charges, the matter shall be referred    to
            the Board Secretary's office to determine the status    of
            any claim, which may be filed by the member.

                   ....

            (c) No claims for retirement or death benefits can be
            processed until the matter has been fully adjudicated
            and completely resolved to the satisfaction of the Board
            of Trustees, pursuant to N.J.A.C. 17:1-1.13(a)(4).
            Resolution of these charges must be verified by contact
            with the County Prosecutor's Office, the Attorney
            General's Office, the Department of Education, the
            Civil Service Commission, the employer, or other
            responsible agencies.

            (d) Likewise in cases where anything pertaining to a
            member's employment is in litigation, or under appeal,
            the matter shall be held in abeyance until the Division
            determines if claims can be processed or whether the
            processing of such claims are to be postponed pending
            a final resolution of the litigation or appeal.

Statutes are to be construed in light of their "object and the nature of the subject

matter, the contextual setting, and the statutes in pari materia." Patterson v. Bd.

of Trs., State Police Ret. Sys., 194 N.J. 29, 45 (2008) (quoting State v. Brown,

22 N.J. 405, 415 (1956)).

                                                                            A-1723-18T1
                                         9
      We conclude that the Board properly declined to process Tretsis'

application for accidental disability retirement benefits. The term "likewise"

used in N.J.A.C. 17:1-6.2(d) points us to the section that precedes it. N.J.A.C.

17:1-6.2(c) directs us to consider whether a "matter has been fully adjudicated

and completely resolved to the satisfaction of the Board of Trustees, pursuant to

N.J.A.C. 17:1-1.13(a)(4)." N.J.A.C. 17:1-1.13(a)(4) provides, "If a retirant is

receiving a retirement benefit, the Boards may suspend retirement benefits

pending the outcome of charges including, . . . [a]n administrative or disciplinary

action." (Emphasis added).

      Based on a plain reading of these provisions, we find that the Board was

permitted to delay the processing of Tretsis' benefits application until her

removal appeal is fully adjudicated. N.J.A.C. 17:1-1.13(a)(4) grants the Board

the authority to withhold retirement benefits where charges have been filed

against a retirant, and an administrative or disciplinary action is pending. Here,

the MCSO charged Tretsis with being unable to fulfill her job duties under three

regulations and terminated her employment based on findings that she could not

perform the essential functions of a sheriff's officer. Tretsis chose to contest her

termination before seeking disability retirement benefits, and her disciplinary

action is still pending. As such, the Board may hold her benefits application in


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                                        10
abeyance, as her status as a disabled employee is still in dispute. See N.J.A.C.

17:1-6.2(c) and (d). 1 We defer to the Board's interpretation of N.J.A.C. 17:1-

6.2(d), as its interpretation was not arbitrary, capricious, or unreasonable. See

Brady, 152 N.J. at 210; see also N.J. Soc'y for the Prevention of Cruelty to

Animals, 196 N.J. at 385; In re Freshwater Wetlands Prot. Act Rules, 180 N.J.

at 489.

      Next, Tretsis argues that the Board misinterpreted our decision in Ensslin,

311 N.J. Super. 333, to bar processing her benefits application while her removal

appeal is pending. Her argument is without merit. In Ensslin, we commented,

             [H]ad the issue of [Ensslin's] substantive entitlement to
             an ordinary disability pension come before the Board
             while his [employment] litigation was pending, it
             would have been appropriate and fair for action on the
             pension application to have been deferred until
             common questions relating to [his] employment rights
             were resolved by adjudication.


1
   We find further support for the Board's position in the Division's responses to
comments made during the public comment period that preceded the enactment
of N.J.A.C. 17:1-6.2. In response to specific language that was to be employed
in N.J.A.C. 17:1-1.13(a)(4), the Division explained that the statute's intent was
to allow "the Boards . . . of the various retirement systems [to] suspend
retirement benefits pending the outcome of charges." 41 N.J.R. 277(a) (Jan. 5,
2009). The Division also stated, "If an administrative or disciplinary action is
filed by an employing agency, which may . . . impact . . . the member's pension,
such actions are usually appealed to the Board . . . of the particular retirement
system for a review and determination. . . . Historically, . . . courts refer to these
pleadings pending the outcome of official charges." Ibid. (emphasis added).
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                                        11
            [Id. at 337.]

As the Board explained in its final administrative determination, Ensslin

supports the Board's decision to hold Tretsis' benefits application in abeyance

pending the outcome of her removal appeal.

      Because we conclude that the Board was authorized to defer consideration

of Tretsis' benefits application, the ALJ shall return Tretsis' removal appeal to

the active docket to allow for the swift adjudication of the appeal and

subsequently, a decision on Tretsis' application for disability retirement

benefits.

      To the extent we have not addressed any of Tretsis' remaining arguments,

we find that they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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