Officer Not Entitled To Retirement Service Credits For Years Of Admin Leave

Written on 09/11/2021
Will Aitchison

A New Jersey police officer identi­fied by the court only as “M.A.” began his employment as a municipal police officer on January 1, 1988. From January 2004 to March 2007, M.A., who had been diagnosed with depressive disorder and anxiety, was involved in a series of off-duty psychological incidents, some of which required he be restrained by police officers. In 2007, M.A. was involuntarily committed to a hospital for psychiatric evaluation and treatment.

On March 17, 2007, the internal affairs division of M.A.’s employer deter­mined he was unfit for duty and unable to carry a weapon. M.A. was assigned to the Police Court and Confinement Unit, a position that did not include full police powers or require the use of a firearm.

On June 20, 2007, M.A. was suspend­ed without pay for the alleged sexual assault of an inmate. Pursuant to his collective bargaining agreement, M.A. was placed on paid suspension because the allegations had not yet been resolved. M.A. never again reported for work.

On February 5, 2008, M.A. was in­dicted by a grand jury, which charged him with two counts of second-degree sexual assault, four counts of fourth-degree sexual contact, and two counts of second-degree official misconduct for the sexual assault of the inmate. He remained on paid sus­pension while the criminal charges were pending. In June 2010, M.A. was acquitted of the criminal charges.

M.A. subsequently advised his em­ployer he wished to return to work. On July 29, 2010, however, M.A. received a preliminary notice of disciplinary action related to the events that resulted in the criminal charges, contending that M.A. provided food and cigarettes to an inmate in exchange for sex acts. M.A. remained on paid suspension while the disciplinary charges were pending. After two days of hearings on the disciplinary charges, on February 10, 2016, M.A. and his employer executed a settlement agreement in which the disciplinary charges were dropped in exchange for M.A.’s immediate retirement.

M.A. applied for what is known as a “special retirement,” which may be granted after 25 years of creditable service. M.A. claimed 28 years and five months of cred­itable service. When the Retirement Board refused to grant him service credit for the time he spent on administrative leave and in positions that did not include full police powers, M.A. appealed.

An appeals court upheld the Retire­ment Board’s decision. The Court noted that “it was reasonable for the Board to conclude that New Jersey’s retirement statutes, when read together, do not al­low creditable service for the period that M.A. was collecting his salary, but unable to perform the duties of a police officer, while disciplinary charges were pending against him. Even though the disciplinary charges ultimately were dismissed through a settlement agreement, M.A. was unable, during his suspension, to perform the duties of a police officer due to his mental condition, which was unrelated to the disciplinary charges. The Board’s denial of service credits in these circumstances is a reasonable application of the statutes.

“Our statutes define ‘creditable ser­vice’ as ‘only service as a policeman paid for by an employer, which was rendered by a member shall be considered as creditable service for the purposes of this act.’ In turn, the statutes provide that ‘policeman’ shall mean a permanent, full-time employee of a law enforcement unit whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State and who: (i) is authorized to carry a firearm while engaged in the actual performance of his official duties; (ii) has police powers; (iii) is required to complete successfully the mandatory training requirements prescribed by law; and (iv) is subject to the physical and mental fitness requirements applicable to the position of municipal police officer established by an agency au­thorized to establish these requirements on a Statewide basis, or comparable physical or mental fitness requirements as determined by the board of trustees.

“There is ample support in the record for the Board’s determination that starting in March 2007, M.A.: (1) was prohibited from carrying a firearm; (2) was deemed mentally unfit to carry out the duties of a police officer; and (3) did not have full police powers. The record also establishes that once M.A. was suspended he did not have primary duties that included investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of this State. For more than nine years, M.A. could not, and did not, perform the duties of a police officer. In fact, after June 20, 2007, M.A. never again reported to work.”

M.A. v. Board of Trustees, 2021 WL 1846840 (N.J.A.D. 2021).

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