                                NOT FOR PUBLICATION WITHOUT THE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-1879-17T3

WILLIAM LUNGER,

          Petitioner-Appellant,

v.

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

     Respondent-Respondent.
__________________________________

                    Submitted January 30, 2019 – Decided February 20, 2019

                    Before Judges Accurso and Vernoia.

                    On appeal from the Board of Trustees of the Police and
                    Firemen's Retirement System, Department of the
                    Treasury, PFRS No. 3-105264.

                    Feeley & LaRocca, LLC and The Blanco Law Firm,
                    attorneys for appellant (Pablo N. Blanco, of counsel
                    and on the brief; John D. Feeley, on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Eric L. Apar, Deputy Attorney
                    General, on the brief).
PER CURIAM

       Petitioner William Lunger, a former Sussex County sheriff's officer,

appeals from a final decision of the Board of Trustees (Board) of the Police and

Firemen's Retirement System (PFRS) 1 denying his request to file an application

for ordinary disability retirement benefits.    Because the Board correctly

determined Lunger is ineligible for ordinary disability retirement benefits, we

affirm.

       Lunger's employment as a Sussex County sheriff's officer began in 2007.

On April 11, 2016, Lunger was arrested and charged with third-degree

conspiracy to commit official misconduct, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A.

2C:30-2(a), third-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a),

four counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a), and a

disorderly persons theft offense, N.J.S.A. 2C:20-3(a). On the same day, Lunger

was suspended without pay from his sheriff's officer position pending resolution

of the criminal charges against him.

       On January 27, 2017, Lunger pleaded guilty to third-degree conspiracy to

commit official misconduct, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A. 2C:30-2(a). On



1
    N.J.S.A. 43:16A-1 to -68.


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                                       2
March 13, 2017, the court sentenced Lunger to a 270-day custodial term as a

condition of a three-year probationary term. The court also ordered that Lunger

forfeit his employment as a sheriff's officer and not seek public employment in

the future. In the judgment of conviction, the court explained that the charge

against Lunger resulted when the Sussex County Prosecutor's Office learned the

Sussex County Sheriff's Department had information that a sheriff's officer,

"Lunger[,] was involved in a sexual/romantic relationship with [a] drug court

participant," and "had been alerting [the participant] of upcoming surprise drug

screens and taking drug testing kits used by probation and providing them to

[the participant]."    On the day of Lunger's sentencing, he resigned his

employment as a sheriff's officer.

        On February 10, 2017, following entry of his guilty plea, but prior to his

sentencing, Lunger submitted an application to the Division of Pensions and

Benefits for ordinary disability retirement benefits commencing on March 1,

2017.     The Division requested documentation necessary to process the

application and subsequently learned about Lunger's pending criminal charges.

The Division requested information from Sussex County concerning the charges




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                                         3
and, on April 24, 2017, was advised Lunger was sentenced on the criminal

charges and his employment as a sheriff's officer ended on March 13, 2017.2

      In a May 10, 2017 letter, the Division advised Lunger he was ineligible to

apply for ordinary disability benefits under N.J.A.C. 17:1-6.4(b) because he was

removed from his position "for cause or forfeiture of public office" and

ineligible to return to any position "should [his] alleged disability diminish at

some time in the future to the point that [he] could return to employment and

thereby comply with the provisions of N.J.S.A. 43:16A-8(2)."

      Lunger appealed from the Division's denial. The Board subsequently

denied Lunger's request to apply for ordinary disability retirement benefits,

finding his official misconduct conviction required the forfeiture of his pension

under N.J.S.A. 43:1-3.1(b); he is ineligible to apply for ordinary disability

retirement benefits under N.J.A.C. 17:1-6.4; and he is ineligible for ordinary

retirement benefits because "he has no job to return to should the alleged

disabling condition diminish" and therefore cannot comply with N.J.S.A.

43:16A-8(2).



2
  The Division also received a March 22, 2017 Final Notice of Disciplinary
Action sustaining charges against Lunger pursuant to N.J.A.C. 2C:51-2(b) based
on his guilty plea and conviction.


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                                       4
      Lunger appealed the Board's determination and requested a hearing before

the Office of Administrative Law. On November 20, 2017, the Board issued its

final decision finding the information before it was sufficient to determine

Lunger is ineligible for ordinary disability retirement benefits and denying his

request to apply for the benefits. This appeal followed.

      Lunger presents the following argument for our consideration:

            POINT I

            THE REFUSAL BY THE BOARD OF TRUSTEES TO
            PROCESS LUNGER'S DISABILITY RETIREMENT
            APPLICATION WAS ARBITRARY AND A
            FAILURE TO TURN SQUARE CORNERS IN
            DEALING WITH ITS MEMBER.

      Our standard of review of a final decision of a State administrative agency

is well-settled. We will not upset an agency's ultimate determination unless the

agency's decision is shown to have been arbitrary, capricious, or unreasonable,

or not supported by substantial credible evidence in the record as a whole.

Barrick v. State, 218 N.J. 247, 259 (2014). We must defer to the agency's

expertise and superior knowledge of a particular field, and do not substitute our

judgment for that of the agency. In re Stallworth, 208 N.J. 182, 194 (2011).

However, we are not bound by the agency's interpretation of a statute or its

determination of a strictly legal issue. In re Taylor, 158 N.J. 644, 658 (1999).


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                                       5
The party challenging the administrative determination bears the burden of

proof. Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980). Measured

against these standards, we discern no basis to reverse the Board's well-reasoned

decision.

      A PFRS member "who [has] involuntarily or voluntarily terminated

service" as the result of a "[r]emoval for cause or total forfeiture of public

service" "will not be permitted to apply for a disability pension." N.J.A.C. 17:1-

6.4(b)-(b)(1); see In re Adoption of N.J.A.C. 17:1-6.4, 17:1-7.5 & 17:1-7.10,

454 N.J. Super. 386, 398 (App. Div.) ("[D]isability retirement benefits are

intended for members who become disabled while in active service and can no

longer work, not for members who have voluntarily or involuntarily terminated

their service for some other reason." (quoting 48 N.J.R. 1307(a) (June 20,

2016))), certif. denied, ___ N.J. ___ (2018). Here, N.J.A.C. 17:1-6.4(b)(1)

barred Lunger's application for disability retirement benefits. He was removed

from his position as a sheriff's officer both for cause by Sussex County and as a

result of the judgment of conviction ordering forfeiture of his employment.

      Lunger is also not entitled to ordinary disability pension benefits because

he was convicted of an offense that directly touches on his employment as a

sheriff's officer.   N.J.S.A. 43:1-3.1 provides "for 'mandatory forfeiture of


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                                        6
retirement benefits . . . for public officers and employees convicted of certain

crimes.'" State v. Steele, 420 N.J. Super. 129, 133 (App. Div. 2011) (quoting L.

2007, c. 49). "The statute applies upon conviction of a person who holds 'any

public office, position or employment' for a designated crime that 'involves or

touches' his office, position or employment." Id. at 134 (quoting N.J.S.A. 43:1-

3.1(a)). Official misconduct, N.J.S.A. 2C:30-2, is one of the designated crimes

the conviction of which requires mandatory forfeiture of retirement benefits

under N.J.S.A. 43:1-3.1(a). N.J.S.A. 43:1-3.1(b)(17).

      Where the crime touches on a PFRS member's employment, he or she

"shall forfeit all of the pension or retirement benefit earned as a member of any

State or locally-administered pension fund or retirement system in which he

participated at the time of the commission of the offense and which covered the

. . . employment involved in the offense." Steele, 420 N.J. Super. at 133 (quoting

N.J.S.A. 43:1-3.1(a)).    Lunger's conviction of official misconduct required

forfeiture of all of his retirement benefits in PFRS. It is undisputed that Lunger's

commission of the crime of official misconduct touched on his employment as

a sheriff's officer. Indeed, he advised a drug court participant about upcoming

drug tests based on information he obtained as a result of his employment and

for the purpose of aiding the participant in avoiding the tests, and he stole drug


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                                         7
testing kits to which he gained access as a sheriff's officer and provided them to

a drug court participant "in order that she may provide clean urine[] [samples]

in advance." Thus, the Board correctly determined Lunger was not entitled to

ordinary disability retirement benefits under N.J.S.A. 43:1-3.1(a).

      We also agree with the Board's determination that Lunger is ineligible for

benefits under N.J.S.A. 43:16A-8, which provides that a retiree who proves that

a disability is rehabilitated is entitled to return to active service in the same

status and position held at the time of retirement, if that duty is available. See

In re Adoption of N.J.A.C., 454 N.J. Super. at 401 (citing Klumb v. Bd. of Educ.

of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 33-35 (2009),

and In re Allen, 262 N.J. Super. 438, 444 (App. Div. 1993)). In light of that

rehabilitation statute, in In re Adoption of N.J.A.C., we reasoned:

            Returning to active service presumes that, at the time
            the beneficiary left public service, he or she actually
            had a duty. . . . And so, a beneficiary who previously
            left public service for some reason other than a
            disability—like termination for cause—would have no
            employment or work duty from which to return.

            The rehabilitation statutes presume that, unlike other
            retirees attempting to return to state service, the only
            obstacle to a disability retiree's reemployment is the
            disability itself. Once the disability abates, the
            disability retirement beneficiary may be entitled to
            reinstatement. See Allen, 262 N.J. Super. at 444
            (interpreting the rehabilitation statutes, and observing

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                                        8
            that, "[t]he 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 . . . [and t]heir
            separation from employment is unlike the voluntary
            separation of other civil servants" (emphasis added)).
            The statutory language expressly conditions
            reinstatement for disability retirees upon disability
            rehabilitation. It logically follows then that disability
            retirees must have left public service because of the
            disability in the first instance; unlike someone who has
            been terminated for cause.

            [Id. at 401-02 (last three alternations in original).]

Lunger cannot return to work if he proves rehabilitation. He is barred from

returning to his position by the express terms of his judgment of conviction.

      We have considered Lunger's arguments that the Board erred by finding

him ineligible to apply for ordinary disability benefits and find they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only that we agree with the Board that there was no need to refer

Lunger's appeal to the Office of Administrative Law because there were no

disputed facts requiring resolution at an evidentiary hearing. See In re Farmers'

Mut. Fire Assurance Ass'n of N.J., 256 N.J. Super. 607, 618 (App.Div.1992)

("An evidentiary hearing is mandated only when the proposed administrative

action is based on disputed adjudicatory facts."); see also In re Xanadu Project

at Meadowlands Complex, 415 N.J. Super. 179, 187-88 (2010) (explaining that

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                                         9
referral of a matter to the Office of Administrative law for a hearing is in an

administrative agency's discretion).

      Affirmed.




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