The Passive Voice (and Persuasive Legislative History) Makes the Difference in Statutory Interpretation

Cologna v. Board of Trustees, Police & Firemen’s Retirement Syst., 430 N.J. Super. 362 (App. Div. 2013).  By statute, a former member of the Police and Firemen’s Retirement System (“PFRS”) normally has two years to resume employment and reinstitute membership in the PFRS.  N.J.S.A. 43:16A-3(5), however, allows a member who “has been discontinued from service through no fault of his own [or in certain other circumstances not relevant here]” to continue his membership “if such member returns to service within a period of 5 years from the date of his discontinuance of service.”  The question in this case was what constitutes “be[ing] discontinued from service through no fault of [plaintiff’s] own.”  Judge Sabatino wrote the Appellate Division’s opinion.

Plaintiff had seen some very stressful duty while serving as a police officer.  Some of his experiences caused flashbacks to traumas he had suffered while in the Marine Corps.  He began to undergo symptoms of post-traumatic stress syndrome (“PTSD”), to the point where he believed he could no longer do his job as a police officer.  As a result, plaintiff submitted a letter of resignation to the Police Chief.  The letter stated that “[t]his resignation is voluntary and comes of my own free will without duress.”  There was no dispute that the police department did not oust plaintiff.  Rather, he resigned on his own.

More than two years later, after being treated for PTSD, plaintiff believed that he could return to public service and obtained a job as a firefighter.  He asked to continue under his prior membership in the PFRS.  Both an Administrative Law judge and the Division of Pension and Benefits denied his request, on the grounds that more than two years had passed since he last contributed to his account.  Plaintiff appealed to the Appellate Division, which affirmed the agency’s decision.

Judge Sabatino noted some potentially conflicting standards of review:  pension statutes are traditionally “liberally construed and administered in favor of the persons intended to be benefited thereby” but “interpretations of statutes by agencies empowered to enforce them are given substantial deference.”  A plainly incorrect agency interpretation, however, is entitled to no deference. 

The key was the language of the statute.  Plaintiff contended that he had left his police position through “no fault of his own,” as the statute stated, due to his physical and mental condition.  But Judge Sabatino rightly concluded that plaintiff’s argument “overlooks the important phrase ‘has been discontinued from service,’ which immediately precedes the phrase ‘through no fault of his own.'”  This was a critical point.  “In the present context, the passive term ‘has been discontinued’ within N.J.S.A. 43:16A-3(5) signifies that the employee in question, as the recipient of the action, has been terminated from his job as a result of the employer’s own actions.  Here, appellant chose himself to end his service as a police officer.  His employer did not take action to remove him.  Consequently, appellant has not ‘been discontinued from service’ within the terms of the statute.”

Moreover, the legislative history of the statute, which Judge Sabatino carefully canvassed, supported the panel’s conclusion.  Governor Byrne’s statement vetoing a prior version of what became the statute at issue objected that the prior iteration, which “would apply to all members of the retirement system, not simply to those who have been laid off,” was too broad and potentially costly to the public.  The Legislature adopted the Governor’s position in full in ultimately enacting the statute.  Though the statutory language that the Legislature chose “could have been more straightforward,” it was based on other pension statutes that used “similar phraseology.”  Plaintiff thus could not belatedly revive his membership in the PFRS, other than by purchasing his prior service time pursuant to a different statutory section.