Las Vegas POA

No Cause To Reopen Officer’s Retirement Case

Written on 01/06/2021
Will Aitchison

Alonzo Herran was employed as a City of Newark police officer for 15 years. His tenure was marked by multiple violations of the Newark Police Department’s rules and regulations and the rules of the Civil Service Commission. In 2012, the City filed disciplinary charges against Herran for allegedly striking a civilian with the butt of his gun while off duty and lying to superiors about his actions.

In July 2016, the City filed disciplinary charges alleging “neglect of duty, malingering, and feigning sickness or injury” because Herran posted photos of himself on Facebook on vacation while using sick leave. Herran’s employment was terminated a few months later in September. He appealed the termination three days later, resulting in a reduction of the termination to a suspension from employment.

Herran applied for ordinary disability retirement benefits in June 2017, effective February 1, 2018. The Board of Trustees of Police and Fireman’s Retirement System approved the request and Herran was officially retired.

A year later, Herran asked the Board to reopen his retirement application to obtain an accidental disability retirement. Herran contended he was injured while detaining a suspect on March 9, 2016. He claimed he did not file a report with the Department because he did not require immediate medical treatment but saw his doctor several days later when he began to develop chest and shoulder pain. Herran certified he suffered from a left rotator cuff tear caused by his work.

Although Herran claimed he realized in late 2016 that his pain was from the March 2016 incident, he certified as follows: “Because of the pending disciplinary proceedings against me, I did not want to make things worse for myself over an incident I had never reported to my department by filing for an accidental disability retirement. That is why I selected the ordinary disability option when I filed my application on June 2, 2017.”

A New Jersey appeals court upheld the denial of Herran’s request to reopen his retirement case. The Court cited a New Jersey statute that stated, “Once the Board approves a member for a disability retirement allowance, the member’s retirement application shall not be withdrawn, canceled or amended.” Under New Jersey’s retirement system, a pension proceeding can only be reopened if the retiree demonstrates “good cause, reasonable grounds, and reasonable diligence.”

The Court found that Herran did not demonstrate the requisite good cause: “His initial request to reopen his retirement application acknowledged he ‘could have initially applied for the accidental disability. However, he decided not to do so in order to not make things worse in the pending disciplinary proceedings. Herran’s strategy was understandable because considering his disciplinary history and the pending charges, he wanted to assure his receipt of a disability retirement even though an accidental disability retirement would pay him more. Indeed, although accidental disability retirees receive a greater payment, ordinary disability retirement need not have a work connection.

“Herran possessed the evidence necessary to submit an accidental disability retirement application in a timely fashion and deliberately chose not to do so. His assertion the decision was borne of a need to gather medical evidence is unsupported by the record and Herran’s own representations to the Board.”

Herran v. Board of Trustees, 2020 WL 5988545 (N.J. Super. Ct. App. Div. 2020).

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