                     NOT FOR PUBLICATION WITHOUT THE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-3158-15T4

NEW JERSEY EDUCATION ASSOCIATION,

           Appellant,

     v.

BOARD OF TRUSTEES OF THE TEACHERS'
PENSION AND ANNUITY FUND,

          Respondent.
_________________________________________________________

           Submitted June 26, 2017 – Decided July 13, 2017

           Before Judges Fisher and Fasciale.

           On appeal from the Administrative Action of
           the Board of Trustees of the Teachers' Pension
           and Annuity Fund in adopting N.J.A.C. 17:3-
           5.5 and N.J.A.C. 17:3-6.1.

           Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
           attorneys for appellant (Jason E. Sokolowski
           and Richard A. Friedman, of counsel; Mr.
           Sokolowski, Mr. Friedman, and Kaitlyn E.
           Dunphy, on the brief).

           Christopher S. Porrino, Attorney General,
           attorney for respondent (Melissa H. Raksa,
           Assistant Attorney General, of counsel; Amy
           Chung, Deputy Attorney General, on the brief).

PER CURIAM
     Appellant New Jersey Education Association (NJEA) seeks our

review   of   final   agency   action   taken   by   respondent   Board    of

Trustees, Teachers' Pension and Annuity              Fund (the Board)1 in

adopting, on November 16, 2015, amendments to N.J.A.C. 17:3-5.5,

and N.J.A.C. 17:3-6.1.

     Before turning to the specifics of this appeal, we first take

note of our standard of review, which allows us to consider whether

an agency's interpretation of a statutory scheme is permissible

in light of the legislative limits and intended goals, In re

Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 450 (1992), but with the

understanding that courts must start "with a presumption," N.J.

Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012), that

properly-adopted regulations "are valid and reasonable," N.J. Soc.

for Prevention of Cruelty to Animals v. N.J. Dep't of Agriculture,

196 N.J. 366, 385 (2008). That is, we must "give substantial

deference" to an agency's interpretation of "a statute that the

agency is charged with enforcing" so long as its interpretation

"is not plainly unreasonable." Matturri v. Bd. of Trs., Judicial

Ret. Sys., 173 N.J. 368, 381-82 (2002). Or, stated another way, a



1
  The Board possesses "general responsibility for the proper
operation" of the Teacher's Pension and Annuity Fund (TPAF) and
for the establishment of "rules and regulations for the
administration and transaction" of its business and for the control
of the TPAF. N.J.S.A. 18A:66-56(a)(1).

                                    2                               A-3158-15T4
legislative     delegation      of       authority   to    an    agency   "is    to    be

liberally construed in order to enable the agency to accomplish

its statutory responsibilities," and "courts should readily imply

such    incidental     powers       as    are    necessary       to   effectuate      the

legislative intent." N.J. Guild of Hearing Aid Dispensers v. Long,

75     N.J.   544,   562    (1978);        see   also     N.J.    State   League       of

Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 223 (1999).


                                            I

       With these principles in mind, we turn to NJEA's arguments

about the amendments to N.J.A.C. 17:3-5.5, and, specifically, this

new     regulation's       manner    of     dealing       with    maternity      leave.

Initially, the following was the proposed amendment to part of

N.J.A.C. 17:3-5.5(a)(4):

              iii. Maternity leave is considered personal
              illness.   Absent   physician   certification,
              three months is the maximum period of purchase
              for maternity leave. A certification from a
              physician that a member was disabled due to
              pregnancy and resulted in a disability for the
              period in excess of three months is required
              for maternity leave in excess of three months.
              The birth of a child constitutes the start of
              child care leave of absence immediately
              following maternity[.]

After considering the NJEA's comments about this proposal, the

Board adopted a final version that deleted the first sentence




                                            3                                   A-3158-15T4
("Maternity leave is considered personal illness") and replaced

that one sentence with the following two sentences:

          Maternity leave may consist of a personal
          illness component and a personal reasons
          component, for childcare. Members who apply
          to purchase any period of maternity leave as
          a personal illness, must provide certification
          from their physician, verifying that the
          member was disabled during the requested
          purchase   period,   due   to   pregnancy   or
          childbirth.

The revised amendment further altered subsection iii by inserting

the following emphasized words in the second sentence of the

earlier proposal: "Absent physician certification, three months

is the maximum allowable period of purchase for maternity leave

for personal reasons." The revised amendment also deleted the

remainder of the earlier proposal. In short, the adopted version

of subsection iii, in full, is as follows:

          Maternity leave may consist of a personal
          illness component and a personal reasons
          component, for childcare. Members who apply
          to purchase any period of maternity leave as
          a personal illness, must provide certification
          from their physician, verifying that the
          member was disabled during the requested
          purchase   period,   due   to   pregnancy   or
          childbirth. Absent physician certification,
          three months is the maximum allowable period
          of purchase for maternity leave for personal
          reasons.

     The NJEA challenges this new regulation by arguing it is

"phrased in a manner that does not make plain that it does not


                                4                          A-3158-15T4
abridge the legal rights afforded to TPAF members in N.J.S.A.

18A:66-8."2    NJEA's    stated     concern    is   that,   as    amended,     the

regulation "could be read to narrow a statutory right" and,

therefore, "should be declared invalid by this court" (emphasis

added). The very way NJEA phrases its argument demonstrates its

lack of merit. NJEA does not contend that the regulation actually

stands   in   conflict     with    N.J.S.A.    18A:66-8(b),      only   that   the

regulation, in its view, doesn't clearly or plainly avoid a

conflict with the statute.

     These arguments are purely academic because the NJEA only

concerns itself with one possible narrow reading of the new

regulation.    Even   if   we     were   to   entertain   these    hypothetical

concerns about how the regulation might be interpreted, we view

N.J.A.C. 17:3-5.5(a)(4) as being in accord with the statute. The

particular maternity leave provision that concerns the NJEA –

subsection iii – does not, as the Board asserts in its responding

brief, "articulate any such narrow reading." As the Board contends,

the section in question was "clarified [so] that '[m]aternity

leave may consist of' both a personal illness leave and a personal



2
  In pertinent part, this statute permits a teacher the right to
purchase up to three months of service credit for an unpaid leave
of absence, N.J.S.A. 18A:66-8(b)(1), and up to two years of service
credit for an unpaid leave that is due to personal illness,
N.J.S.A. 18A:66-8(b)(2).

                                         5                               A-3158-15T4
reason leave (for childcare). . . . Nothing could be clearer, and

no statutory right was narrowed or curtailed." We agree.


                               II

     NJEA's appeal also concerns a number of facets of the newly-

adopted amendment to N.J.A.C. 17:3-6.1, which deals with the

process for applying for various types of retirement benefits.

NJEA argues that the amendments exceed the Board's authority or

limit TPAF members' existing statutory rights in four ways: (1)

by failing to include a provision that allows a member to apply

for an extension of time; (2) through the inclusion of provisions

which, in NJEA's words, "contradict[] the statutory requirements

for an accidental disability retirement"; (3) by adding to the

statutory requirements an additional requirement that the TPAF

member separate from service in order to qualify for a disability

pension; and (4) by precluding an application for retirement while

a disability application is pending. Keeping in mind the standard

of review, which permits our intervention only when the adopted

regulation is plainly unreasonable or outside the scope of the

Board's delegated authority, we find insufficient merit in NJEA's

arguments to warrant further discussion in a written opinion. R.

2:11-3(e)(1)(E). We add only the following few comments.




                                6                          A-3158-15T4
     As to the NJEA's first concern, the Board has not taken the

position that applications for extensions are barred by amended

N.J.A.C. 17:3-6.1(b). Instead, the Board recognizes and embraces

its "inherent power," in "the absence of legislative restriction,"

"to reopen or to modify and to rehear orders previously entered

by it." Duvin v. State, 76 N.J. 203, 207 (1978). The failure to

incorporate     an     express    right   to   seek   an    extension     was    not

unreasonable.

     The second alleged cause for concern – that N.J.A.C. 17:3-

6.1(f)(1) is perceived by NJEA as adding an element to those which

a TPAF member must prove to obtain accidental disability retirement

benefits – is belied by the Board's intention, revealed by the

amended regulation, to ensure that such benefits are not awarded

on the basis of preexisting conditions alone or on the basis of

the combination of work effort and preexisting conditions, and to

ensure   that    the    alleged    traumatic    event      directly    caused    the

disability upon which the application is based. See 47 N.J.R.

2876(a).   Far       from   unreasonable,      the    amendment       conforms    to

Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys., 192

N.J. 189 (2007), as NJEA recognizes.




                                          7                                A-3158-15T4
       The NJEA's third concern involves N.J.A.C. 17:3-6.1(f)(3),3

and the NJEA's claim that this regulation "improperly adds a[]

requirement for the receipt of a disability pension," i.e., that

the applicant must discontinue service due to the disability upon

which the application is based. We reject this. When harmonized,

N.J.S.A. 18A:66-39 and N.J.S.A. 18A:66-40(a) render a TPAF member

ineligible    for   a   disability   retirement       when    that   member's

employment    has   been   terminated    for    a   non-disability    reason;

moreover, NJEA has not demonstrated how the existing legislation

could render a TPAF member, who terminated employment for a non-

disability    reason,   eligible   for   a     disability    retirement.   The

amended regulation is not inconsistent with legislative directives

and constitutes a reasonable approach to such circumstances.



3
    As amended, this regulation states:

            Termination of employment, voluntary or
            involuntary, that was caused by any reason
            other than the claimed disability disqualifies
            a member from disability retirement. A member
            whose employment ended after his or her
            employer initiated disciplinary action, or who
            was the subject of criminal or administrative
            charges or party to a settlement resulting in
            resignation or termination, is considered to
            have separated from service as a result of the
            employer action, charges, or settlement, and
            not due to a disability, unless the action,
            charges, or settlement is shown to be a result
            of the disability.


                                     8                                A-3158-15T4
       Lastly,   the    NJEA   contends    that   N.J.A.C.   17:3-6.1(g)4   is

inconsistent with the statutory framework because it prevents a

TPAF member from applying for retirement benefits while the member

has    a   disability    retirement       application   pending.   Far   from

unreasonable, this regulation provides a common sense approach to

those circumstances. A TPAF member is entitled to only one type

of retirement; accordingly, it is appropriate for the Board to

limit that member to one application at a time. We discern no harm

to that limitation, since N.J.A.C. 17:3-6.1(h) permits a TPAF

member who has been denied a disability retirement, but also

qualifies for a service-based retirement, to apply within thirty

days of denial of the former for a service-based retirement if so

eligible.5


4
    This regulation states:

             A member filing for an accidental or ordinary
             disability retirement shall not file a
             separate    application    for    retirement,
             including one based on any other allegedly-
             disabling condition, while the original
             disability application is pending. A separate
             application can be filed only for a date
             subsequent to withdrawal of the previous
             application.
5
    N.J.A.C. 17:3-6.1(h) states:

             If a disability retirement application is
             denied by the Board and the applicant
             qualifies for any other retirement benefit,


                                      9                              A-3158-15T4
Affirmed.




    the applicant will be required to submit a
    separate application for retirement. If the
    applicant submits the separate application for
    retirement within 30 days of the Board's
    decision, the applicant may retain the
    retirement date designated on the disability
    requirement application. If a member is denied
    an accidental disability retirement, but
    qualifies    for   an    ordinary   disability
    retirement based on the accidental-disability
    application,     the    ordinary    disability
    retirement will be granted, and no additional
    application will be required.

                         10                          A-3158-15T4
