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Ensslin v. Board of Trustees5/11/1998
Argued: November 6, 1997
Petitioner appeals from a final decision of the Board of Trustees (Board) of the Police and Firemen's Retirement System (PFRS) denying his application for an ordinary disability retirement. We reverse.
Background facts relating to the matter are recited at length in a prior opinion, Ensslin v. Township of North Bergen, 275 N.J. Super. 352 (App. Div. 1994) (Ensslin I). In that consolidated appeal, we affirmed the decision of the Merit System Board upholding petitioner's termination from service as a police officer, as modified to reflect a resignation in good standing. We also affirmed the dismissal of petitioner's Law Division action alleging handicap discrimination in violation of the Law Against Discrimination (LAD). The Supreme Court denied certification. 142 N.J. 446 (1995).
On February 17, 1995, shortly after certification was denied, petitioner filed his application for an ordinary disability retirement. On May 17, the Board rejected the application on the ground that petitioner was ineligible because he was not "a member in service." The Board secretary advised petitioner that he was entitled to request formal review of the determination. On June 28, 1995, petitioner sought formal reconsideration. The final decision denying the application followed on August 20, 1996.
The material facts are undisputed. Petitioner's last pension contribution as a member of PFRS was July 31, 1988, the effective date of his termination as a North Bergen police officer. More than four years later, on September 22, 1992, while petitioner's suits were still pending before the Merit System Board and the Law Division, the Division of Pensions and Benefits sent petitioner a letter advising that his membership account would expire if he did not return to public service by November 22, 1992. The letter was sent to an old address and never reached petitioner.
The Board denied petitioner's application for an ordinary disability retirement on the ground it was untimely. That determination was expressed as based on the interplay of two statutes which the Board characterized as clear and unambiguous. N.J.S.A. 43:16A-3(3) provides that membership in PFRS ceases, inter alia, "if more than 2 years have elapsed from the date of [the member's] last contributions to the system[.]" N.J.S.A. 43:16A-6(1) provides that an application for an ordinary disability retirement is to be made "by a member in service" or on his behalf. The Board held, as a matter of law, that petitioner did not meet these statutory requirements, and ruled that it was "without discretion or authority to deviate from the statutory mandate." The gravamen of petitioner's joined claims in his prior actions was "that his disability, although preventing him from performing all of the functions of a police sergeant, did not prevent him from performing the essential functions of the job with reasonable accommodation." Ensslin I, supra, 275 N.J. Super. at 359. On that basis, he resisted North Bergen's effort to terminate his employment, and contended that, under the LAD and on other grounds, he was entitled to such reasonable accommodation as would enable him to continue functioning as a police officer with the rank of sergeant.
Petitioner's fundamental contention in asserting his claims before the Merit System Board and the Law Division, based upon his rights under both the statutes and regulations governing public employment and the standards of the LAD, may be expressed in the language of N.J.S.A. 43:16A-6(1). He argued that he was not so "incapacitated for the performance of his usual duty and of any other available duty" as to be considered disabled, if reasonable accommodations
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