               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION


                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1997-17T1

ISAIAH CARDINALE,

     Petitioner-Appellant,              APPROVED FOR PUBLICATION

                                                March 1, 2019
v.
                                            APPELLATE DIVISION

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

     Respondent-Respondent.
____________________________

           Argued February 4, 2019 – Decided March 1, 2019

           Before Judges Messano, Fasciale and Gooden Brown.

           On appeal from the Board of Trustees, Police and
           Firemen's Retirement System, PFRS No. 3-98613.

           Steven J. Kossup argued the cause for appellant
           (Feeley & LaRocca, LLC, and Steven J. Kossup,
           attorneys; John D. Feeley, of counsel and on the
           brief).

           Robert E. Kelly, Deputy Attorney General, argued the
           cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Melissa Dutton Schaffer, Assistant
           Attorney General, of counsel; Robert E. Kelly, on the
           brief).
      The opinion of the court was delivered by

FASCIALE, J.A.D.

      This appeal requires us to decide whether, as a matter of law, a police

officer is ineligible for ordinary disability benefits as a member of the Police

& Firemen's Retirement System (PFRS) if the officer separates from service by

irrevocably resigning from employment to resolve pending drug-related

disciplinary charges.    We answer this question recognizing that N.J.S.A.

43:16A-8(2) requires disability retirees to return to duty once their disability

has "vanished or has materially diminished." Of course, permanently resigning

from employment makes returning to duty impossible.

      Isaiah Cardinale (Cardinale) – the officer who resigned from the police

department (the Police Department) – argues that the Board of Trustees (the

Board) of PFRS acted arbitrarily by refusing to process his application seeking

ordinary disability benefits. He maintains that the Board's declaration that he

was ineligible misapplies N.J.S.A. 43:16A-8(2), and its refusal to consider his

application amounts to a failure to turn square corners. Cardinale urges us to

direct the Board to consider his application on the merits.

      We hold 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.



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                                        2
Generally, for individuals whose disability has vanished or materially

diminished, benefits cease when the retiree refuses to return to duty after the

Board has so ordered. In this sense, disability retirees are unique. But here,

Cardinale can never return to duty solely because of his final resignation,

rather than his refusal to do so upon disability rehabilitation.     Under the

governing legislative framework, the inability to return to duty – due solely to

an irrevocable resignation – prevents the Board from statutorily terminating

any granted benefits, a result which would contravene important public policy

underlying disability retirement benefits.

      We therefore affirm.

                                        I.

      In August 2004, Cardinale began working as a police officer.              On

December 16, 2013, he submitted to a random drug test. Two days later,

Cardinale admitted to using cocaine.         The Police Department immediately

suspended him pending the results of the test, and Cardinale successfully

completed drug and alcohol treatment in Florida.         In February 2014, the

toxicology report demonstrated that he had tested positive for cocaine.

      On February 21, 2014, the Police Department issued a Preliminary

Notice of Disciplinary Action (PNDA). Before that, Cardinale had performed

his job without any documented problems.          The PNDA charged him with



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                                        3
violating the following sections of N.J.A.C. 4A:2-2.3(a) and the Police

Department's rules and regulations:

            N.J.A.C. 4A:2-2.3(a):
            1. Incompetency, inefficiency or failure to perform
            duties;
            3. Inability to perform duties;
            6. Conduct unbecoming a public employee;
            7. Neglect of duty; [and]
            1[2]. Other sufficient [c]ause.

            . . . Department Rules & Regulations:
            Oath of Office;
            1:5 Code of Ethics;
            2:24 Employee Drug Testing;
            3:1.1 Standards of Conduct;
            3:1.11 Obedience to Laws and Regulations;
            3:2.2 Alcoholic Beverages and Drugs; [and]
            5:1.1 Disciplinary Action.

      Eleven days later, on March 4, 2014, while on suspension, Cardinale

applied for ordinary disability benefits.    In August 2014 – after a hearing

officer conducted a disciplinary hearing – the Police Department issued its

Final Notice of Disciplinary Action (FNDA) and removed him as a police

officer effective February 21, 2014.        Cardinale appealed the FNDA (the

disciplinary action) to the Civil Service Commission (the Commission), which

transmitted the matter to the Office of Administrative Law (OAL) as a

contested case.

      In February 2015, Cardinale and the Police Department settled the

disciplinary action and entered into a settlement agreement.      The Police

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                                       4
Department withdrew the FNDA's recommended termination, Cardinale

withdrew his appeal from the FNDA, and Cardinale signed a letter irrevocably

resigning from the Police Department. The letter stated, "Effective June 15,

2015, I am voluntarily separating from my employment as a [p]olice [o]fficer

with the [Police Department and] I understand that this letter of separation

from employment is not revocable." In the settlement agreement, Cardinale

acknowledged that he would proceed with his application for ordinary

disability benefits at his "sole risk," and that the outcome of the application

would not affect his resignation. In March 2015, the disciplinary action was

terminated.

      In November 2015, the Board declined to process Cardinale's

application. The Board explained that the only obstacle to his reemployment

was not the purported disability, but rather, his irrevocable resignation. The

Board therefore concluded – assuming Cardinale was disabled but later

became rehabilitated – that it would have no statutory authority to stop paying

benefits. In February 2016, Cardinale administratively appealed the Board's

refusal to process his application, and the OAL listed the matter as a contested

case (the benefits action).

      In March 2017, an administrative law judge (ALJ) conducted a hearing

in the benefits action.       Cardinale, the only witness who appeared at the



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                                         5
hearing, testified that performing his job as a police officer caused post-

traumatic stress disorder (PTSD). He alleged that the PTSD led him to drink

alcohol and use cocaine. Notwithstanding that allegation, the record reflects

no prior disciplinary problems or disruptions in his ability to do his job before

he tested positive for cocaine.

      At the hearing, Cardinale conceded that he was recovering and no longer

disabled. Indeed, in his application for ordinary disability benefits, which he

had filed three years before the hearing, Cardinale admitted that he was

"sober" and that his main concern was that due to his duties as a police officer,

he would "again become depressed to the point of using alcohol and/or drugs."

On direct examination, he gave the following testimony:

            Q: And what was the reason for your leaving the
            [Police] [D]epartment?

            A: My disability.

            Q: [W]hat was your disability?

            A: PTSD. . . .

            Q: And . . . did you have a substance abuse problem?

            A: Yes.

            Q: And did that include alcohol?

            A: Yes.

            Q: And you still have that disability?

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                                       6
              A: No.

Cardinale added that he was not drinking alcohol "right now," and that he was

in recovery and taking medication.

         The ALJ determined that the settlement agreement did not bind the

Board. He found "Cardinale's separation from the . . . Police Department was

due solely to the exchange of the parties' respective rights arising out of [the]

disciplinary charges."     That said, the ALJ concluded that there was no

disability issue for the Board to consider.     The ALJ noted that Cardinale

agreed to proceed with his application for ordinary disability benefits at his

sole risk. The ALJ stated further that the Board, which was not a party to the

settlement agreement, was under no obligation to process the application,

especially because in the ALJ's opinion, the Board was not legally required to

do so.

         The ALJ explained that N.J.S.A. 43:16A-8(2) requires an employer to

reinstate a member who returns from disability status, but that here,

Cardinale's execution of his irrevocable letter of resignation made any such

return impossible.     He elaborated further that because Cardinale could not

return to work at the Police Department, the Board would statutorily be unable

to stop paying benefits, assuming such benefits were appropriate in the first

place. He said:

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                                       7
            The PFRS Board was of the opinion that . . . it should
            not put itself into a position where, by considering and
            perhaps granting disability benefits, it would run the
            risk of never being able to stop the payment of said
            benefits . . . when Cardinale['s] . . . disability vanishes
            or materially diminishes . . . .        [T]he Board may
            properly decline to process an application on the
            grounds that the cessation of employment arose solely
            out of disciplinary charges and was not based on an
            issue of disability.

In the final agency decision under review, the Board adopted the ALJ's

findings and conclusions.

      On appeal, Cardinale contends that the Board's refusal to process his

application for ordinary disability benefits deprived him of the opportunity to

show he suffered from a disability. He argues therefore that the Board acted

arbitrarily and failed to turn square corners. Emphasizing the remedial nature

of pension statutes, which he maintains the Board must liberally construe,

Cardinale asserts that the Board misinterpreted N.J.S.A. 43:16A-8(2).            He

argues essentially that the statute gives the Board discretion to discontinue any

payment of disability benefits, even if his irrevocable resignation solely

prevents him from returning to duty.

                                        II.

      Pertinent to our standard of review, it is undisputed that Cardinale

signed the settlement agreement to resolve the disciplinary action.            The

agreement does not mention Cardinale's alleged PTSD-addiction disability,

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                                        8
which has since vanished or materially diminished.           Rather, the Police

Department dropped the disciplinary charges in exchange for Cardinale

irrevocably resigning, and for no other reason.

      Our review of the Board's decision is very limited. Caminiti v. Bd. of

Trs., Police & Firemen's Ret. Sys., 394 N.J. Super. 478, 480 (App. Div. 2007).

Generally, we may overturn the decision if it is unsupported by sufficient

credible evidence in the record, but such an inquiry is unnecessary because the

facts are undisputed.    We focus instead on the legal question of whether

Cardinale is ineligible to seek ordinary disability benefits as a matter of law

due to his irrevocable resignation.

      We are not bound by an agency's interpretation of a statute or its

determination of a strictly legal issue. We review such questions de novo. See

Ardan v. Bd. of Review, 231 N.J. 589, 604 (2018); see also Mount v. Bd. of

Trs., 233 N.J. 402, 418-19 (2018). In arriving at its decision not to process the

application for ordinary disability benefits, the Board interpreted N.J.S.A.

43:16A-8(2). Ordinarily, we defer to an agency's interpretation of a statute

unless it is "plainly unreasonable," contrary to the statutory language, or

"subversive of the Legislature's intent." N.J. Tpk. Auth. v. AFSCME, Council

73, 150 N.J. 331, 352 (1997); see also Klumb v. Bd. of Educ. of Manalapan-

Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 24 (2009) (stating that



                                                                        A-1997-17T1
                                       9
"interpretations of the statute and cognate enactments by agencies empowered

to enforce them are given substantial deference in the context of statutory

interpretation").

                                       III.

      For purposes of our analysis, we assume Cardinale suffered from PTSD,

which allegedly resulted in a substance abuse problem. We further accept, as

we analyze the issues presented, that he would have satisfied the requirements

of N.J.S.A. 43:16A-6(1), which provides in pertinent part that a member may

retire on ordinary disability benefits provided

             that the medical board, after a medical examination of
             such member, shall certify that such member is
             mentally or physically incapacitated for the
             performance of his usual duty and of any other
             available duty in the department which his employer is
             willing to assign to him and that such incapacity is
             likely to be permanent and to such an extent that he
             should be retired.

Of course, we make these assumptions fully understanding that they are

completely unsupported in the record by any medical or other credible

evidence whatsoever.

      Nevertheless, we assume the disability existed because it is irrelevant to

our holding that his irrevocable resignation made him ineligible for benefits in

the first place. We acknowledge the longstanding principle that "eligibility for

disability retirement benefits requires members to make a prima facie showing

                                                                        A-1997-17T1
                                       10
that they cannot work due to a disability." In re Adoption of N.J.A.C. 17:1-

6.4, 454 N.J. Super. 386, 394 (App. Div. 2018) (addressing the 2016 re-

adoption   of   amended    regulations        after   Cardinale's   application,   but

acknowledging the principle that eligibility for benefits depends on a prima

facie showing of an inability to work due to a disability). But even if he was

disabled – as a matter of law – the consequence of his irrevocable resignation

is determinative.

      That brings us to the heart of the case. The premise of our assumption –

that Cardinale would have preliminarily qualified for ordinary disability

benefits because he suffered from his alleged PTSD-addiction disability – begs

the question of whether his irrevocable resignation from active service as a

police officer to settle his drug-related disciplinary charges nevertheless made

him legally ineligible. For decades, PFRS disabled retirees were uniquely

required to return to active service when their disability had abated. Id. at

400-01.

            If the retired employee regains the ability to perform
            his or her duties, the Legislature mandated that he or
            she be returned to the former position.            The
            Legislature clearly recognized that individuals
            returning from a disability retirement are in a unique
            situation, plainly different from all other employees
            returning to active service. Their separation from
            employment is unlike the voluntary separation of other
            civil servants whose seniority is not aggregated. In
            our view, N.J.S.A. 43:16A-8(2) contemplates that a

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                                         11
           restoration to employment return the formerly
           disabled individual as nearly as possible to the status
           held at the time he or she was pensioned. The
           aggregation of seniority complies with the legislative
           mandate that disabled employees return to their former
           position upon cessation of their disability.

           [In re Allen, 262 N.J. Super. 438, 444 (App. Div.
           1993) (emphasis added).]

     Although members are eligible for benefits if they can show they left

work because of a disability, N.J.A.C., 454 N.J. Super. at 398-402, the

Legislature clearly understood the importance of restoring formerly disabled

retirees to work when it passed N.J.S.A. 43:16A-8(2), which in pertinent part

unambiguously states that

                 Any beneficiary under the age of [fifty-five]
           years who has been retired on a disability retirement
           allowance under this act, on his request shall, or upon
           the request of the retirement system may, be given a
           medical examination and he shall submit to any
           examination by a physician or physicians designated
           by the medical board once a year for at least a period
           of five years following his retirement in order to
           determine whether or not the disability which existed
           at the time he was retired has vanished or has
           materially diminished. If the report of the medical
           board shall show that such beneficiary is able to
           perform either his former duty or any other available
           duty in the department which his employer is willing
           to assign to him, the beneficiary shall report for duty;
           such a beneficiary shall not suffer any loss of benefits
           while he awaits his restoration to active service. . . .

           [(Emphasis added).]



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                                     12
Assuming he satisfies the requirements of this statute, Cardinale must return to

duty. Along those lines, and certainly at the time of the hearing before the

ALJ, Cardinale testified that he is no longer disabled, he stopped drinking

alcohol, was in recovery, and was on medication. Hence, a strong case can be

made that he would inevitably be required to return to duty. See N.J.A.C., 454

N.J. Super. at 400-02 (reiterating that rehabilitation statutes – like N.J.S.A.

43:16A-8(2) – expressly condition reinstatement for disability retirees upon

disability rehabilitation, and that under such statutes, "the only obstacle to . . .

reemployment is the disability itself"). The obstacle for Cardinale is not his

disability, but rather, his irrevocable resignation.

      Cardinale's permanent inability to return to duty is fatal. The purpose of

N.J.S.A. 43:16A-8(2) is to return the previously disabled retiree to work as if

that individual had never suffered a disability or interruption of service. In re

Terebetski, 338 N.J. Super. 564, 570 (App. Div. 2001). The statute is not

simply an anti-fraud measure. It provides for a system of taxpayer-funded

relief by allowing disability benefits but requiring retirees to return to duty

upon disability rehabilitation.    The Legislature obviously did not devise a

disability retirement system that, on the one hand, would grant ordinary

disability benefits to PFRS members who could never return to active service,

and on the other hand, require that other PFRS members return to duty when



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                                         13
their purported disability vanishes or materially diminishes. That would be

absurd. Instead, N.J.S.A. 43:16A-8(2) balances 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. See Klumb, 199 N.J. at 34-35

(reaching the same conclusion by applying a similar rehabilitation statute).

      Importantly, a member's irrevocable resignation presents a practical

problem that strains the workability of the system.        N.J.S.A. 43:16A-8(2)

envisions only one circumstance when disability benefits may cease. That

situation, which does not apply to members who irrevocably resign from work,

arises when the Board grants retirement benefits to a PFRS retiree, that

retiree's disability vanishes or materially diminishes, and then that retiree fails

to return to duty after the Board orders the retiree to do so. N.J.S.A. 43:16A-

8(2) addresses this scenario by stating:

            If the beneficiary fails to submit to any such medical
            examination or fails to return to duty within [ten] days
            after being ordered so to do, or within such further
            time as may be allowed by the [B]oard of [T]rustees
            for valid reason, as the case may be, the pension shall
            be discontinued during such default.

            [(Emphasis added).]

Thus, the statute authorizes the Board to discontinue disability benefits only

under this explicit sequence of events.




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                                          14
      Nevertheless, Cardinale argues that his benefits could cease within ten

days after he recovers from his disability.     N.J.S.A. 43:16A-8(2) does not

permit that result. To hold otherwise would require us to re-write the text,

which would change not only the meaning of the statute, but also, the policy

implications associated with the unique status disabled retirees enjoy.      And

such a result would contravene the purpose for limiting the only circumstance

under which benefits cease.

      The Legislative purpose for granting limited authority to stop payment

of benefits is such

            that persons on disability retirement who are no longer
            disabled, i.e., no longer entitled to disability
            retirement, and who are under the age of fifty-five, be
            returned to either their prior positions or any available
            duty that their employers are willing to assign to them.
            In other words, the employee should be returned to his
            or her position as if the employee's service was never
            interrupted and as if the disability retirement had
            never occurred.

            [Terebetski, 338 N.J. Super. at 568-69 (footnote
            omitted).]

We have explained that "[t]he purpose of this legislation is to return the

previously disabled employee to work as if the officer had never been disabled

and the officer's service had never been interrupted." Id. at 570.

      Cardinale's interpretation of the statute would be repugnant to the entire

legislative framework. "Our task is to give that language a fair and practical

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                                       15
interpretation with reference to the purposes of the retirement act." Hillman v.

Bd. of Trs., Pub. Emps.' Ret. Sys., 109 N.J. Super. 449, 455 (App. Div. 1970).

We have explained that "the Legislature granted the Division discretion to

decide the circumstances in which it will order a medical examination of a

disability retiree to determine if he or she is fit for employment in any capacity

with the former employer."       N.J.A.C., 454 N.J. Super. at 416.        This is

indicative of the legislative goal of returning employees to work when ever

possible.

      We acknowledge that, "pension statutes are 'remedial in character' and

'should be liberally construed and administered in favor of the persons

intended to be benefited thereby.'" Klumb, 199 N.J. at 34 (quoting Geller v.

N.J. Dep't of Treasury, Div. of Pensions & Annuity Fund, 53 N.J. 591, 597-98

(1969)). But, "eligibility is not to be liberally permitted." Smith v. Dep't of

Treasury, Div. of Pensions & Benefits, 390 N.J. Super. 209, 213 (App. Div.

2007). Moreover, "[i]n spite of liberal construction, an employee has only

such rights and benefits as are based upon and within the scope of the

provisions of the statute." Francois v. Bd. of Trs., Pub. Emps.' Ret. Sys., 415

N.J. Super. 335, 349 (App. Div. 2010) (alteration in original).               "An

inappropriate allowance of benefits tends 'to place a greater strain on the

financial integrity of the fund in question and its future availability for those



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                                       16
persons who are truly eligible for such benefits.'" Id. at 350 (quoting Smith,

390 N.J. Super. at 215). A PFRS member irrevocably resigning from work is

not within the scope of the provisions of N.J.S.A. 43:16A-8(2).         In other

words, a PFRS member, like Cardinale, who irrevocably resigned from work is

not of a class "intended to be benefited" by the statute. Geller, 53 N.J. at 597-

98 (applying remedial statutes only in favor of the persons "intended to be

benefited").

      Thus, from a practical standpoint, 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. Allowing ongoing benefits under these circumstances

unquestionably places a strain on the financial integrity of the fund and its

future availability for those persons who are truly eligible for such benefits.

Doing so would drain, weaken, and overburden the disability retirement

system available to PFRS members.           Entertaining an ordinary disability

retirement application – as the Board recognized – for members who

irrevocably resign from service to settle disciplinary charges flowing from

illegal use of drugs would violate public policy, contravene the rehabilitation

statute, and encourage abuse of the disability retirement system.




                                                                        A-1997-17T1
                                       17
      We therefore conclude that when a PFRS member separates from

employment by deliberately and irrevocably resigning from active duty to

settle pending disciplinary charges – like Cardinale – that person is ineligible

for ordinary disability benefits because he or she can never return to work as

contemplated by the unique disability retirement statutory framework.

                                      IV.

      We flatly reject Cardinale's contention that the Board failed to turn

square corners. "When dealing with the public, 'government must "turn square

corners" rather than exploit litigational or bargaining advantages that might

otherwise be available to private citizens.'" Rudbart v. N. Jersey Dist. Water

Supply Comm'n, 127 N.J. 344, 378 (1992) (quoting W.V. Pangborne & Co. v.

N.J. Dep't of Transp., 116 N.J. 543, 561 (1989)). "The government must act

fairly and 'with compunction and integrity.'"      Id. at 379 (quoting W.V.

Pangborne, 116 N.J. at 562). The doctrine is "always subject to the guiding

principles of fundamental fairness." Milligan v. Dir., Div. of Taxation, 29 N.J.

Tax 381, 399 (Tax 2016). There is no such equitable failure here.

      There is no evidence that anyone at the Police Department made any

statements on which Cardinale reasonably could have detrimentally relied

when negotiating the settlement agreement.           The settlement reflected

Cardinale's decision to proceed with his application.       But the settlement



                                                                        A-1997-17T1
                                      18
agreement does not represent – nor could it have – that the Board would

process the application. Cardinale understood that by executing the settlement

agreement, he would proceed with his application at his "sole risk," and the

outcome of the application would not affect the enforceability of the

settlement.   Instead of permanently resigning, he could have fought the

disciplinary action and run the risk of the Police Department terminating him

for cause for his illegal use of drugs. But he knowingly chose not to do that.

      Affirmed.




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