Should cop who watched 3 teens burn to death get special pension?
Should a police officer who helplessly watched three teenagers die in flames be entitled to enhanced early pension benefits?
What about a hostage negotiator who’d talked with a man for 12 hours, then heard him plead for his life seconds before being shot dead?
The state Supreme Court last week answered both questions: Justices said no to the hostage negotiator and maybe for the first responder.
But this is likely not the last time that judges will have to decide a pension case involving a public worker suffering from a mental condition. And so the top court’s latest decision also came with a request for lawmakers to consider making early retirement pension rules clearer.
During oral arguments in the case, Associate Justice Barry Albin said the results from accidental disability cases are so disparate because of how broadly the law is written, with standards set in court cases that compel judges to split hairs in each instance.
“It’s unfortunately been left to this court to try to narrow the language of the Legislature so the fund doesn’t go bankrupt,” Albin said.
New Jersey’s pension funds pay $219 million a year in accidental disability pensions to over 5,100 people. That includes 7 percent of all recipients in the Police & Firemen’s Retirement System.
The funds also pay $460 million a year in ordinary disability pensions to 22,680 retirees.
It’s a fraction of the $11 billion that the state’s pension systems will pay out to 340,000 retirees by the end of this year, a New Jersey 101.5 analysis finds. But it’s still no small amount — and the Supreme Court decision last week noted that the justices tried to balance “the Legislature’s intent to assist certain first responders and other retirement system members disabled under extraordinary circumstances while conserving the limited resources of the retirement funds.”
Senate President Steve Sweeney, D-Gloucester, said the Legislature should address the topic.
“We want to make sure that people that are legitimately hurt in the line of duty get their pension. But the people that aren’t, we need to make sure we tighten the rules up,” Sweeney said. “I agree with the courts. We need to tighten up.”
At issue is whether the officers are entitled to an ordinary disability pension, which pays 40 percent of a retiree's former salary — or the more generous accidental disability pension, which pays two-thirds of the retiree's former salary.
The difference between accidental and ordinary disability benefits for a public worker forced into early retirement can be significant – around $16,000 a year for someone who made $60,000, or $24,000 for someone who made $90,000.
That’s part of why accidental disability pensions average more than twice as much as ordinary disability pensions, $42,700 versus $20,300.
Another reason is police officers and firefighters, who are higher paid, tend to be most likely to encounter a traumatic event while working.
To qualify for the full pension benefit, a police or firefighter has to prove that they were permanently and totally disabled as a result of an “un-designed and unexpected traumatic event” while on duty.
But the standard for what counts as an “un-designed and unexpected traumatic event” is a fuzzy one.
If the disability is mental, courts have ruled that the retiree has to prove that the disability resulted from experiencing a “terrifying or horror-inducing event that involved actual or threatened death or serious injury.”
Courts also have held that the event has to be “of consequence and objectively capable of causing a reasonable person to suffer a disabling injury.”
In the Supreme Court’s oral arguments in the most recent cases, Associate Justice Anne Patterson noted that police officers regularly encounter fatal accidents and may suffer post-traumatic stress disorder as a result.
“You may be making a really good argument for the Legislature to take a serious look at this and to maybe come up with a statute that specifically deals with psychiatric injury as opposed to physical injury,” Patterson said.
Sweeney contends that the police and fire unions will become more interested in preventing questionable “slip and fall” pensions once they take over management of their pension funds, as will happen once the Senate and Assembly concur with Gov. Phil Murphy’s conditional veto of the enabling legislation.
“We want to address that,” Sweeney said. “Under Gov. Christie, we attempted to address that but he was trying to go further and we were actually capturing people that were shot in the line of duty. So we never were able to resolve the issue.”
Assemblyman John Burzichelli, D-Gloucester, has been the sponsor of legislation that would address disability pensions, including accidental disability, since 2012. It hasn’t gone anywhere, though he said the issue has “clearly bubbled up in conversation.”
“When it comes to people being disabled, especially in the line of work, you want to make sure that there’s fairness and that the person’s compensation really reflects what they’re no longer able to do. So, I think the key word is fairness,” said Burzichelli, who was not familiar with the Supreme Court’s most recent recommendations.
As one might expect, the police and fire pension sees a disproportionate share of accidental disability cases – 63 percent of such pensions, from a fund that accounts for 13 percent of all pensioners.
Seven percent of people drawing retirement benefits from the PFRS are getting accidental disability pensions, compared with 1 percent for the Public Employees Retirement System and 0.25 percent for members of the Teachers’ Pension and Annuity Fund.
Last week’s Supreme Court decision paves the way for former Freehold Township Officer Christopher Mount to receive accidental disability benefits.
Mount applied for retirement in 2010 after being diagnosed with PTSD linked to a horrific 2007 car crash in which three high school students and a school van driver were killed after the teens’ car, which had been racing against another car, collided with the van on Kozloski Road.
Mount was the first responder on scene. Because he had no firefighting equipment, he could do nothing as the car burst into flames with victims inside. Witnesses on the scene shouted to Mount to “do something!” Once the flames subsided, Mount saw that the fire had melted the teens’ skin and clothes.
The PFRS pension board denied Mount’s application for accidental disability pension. That decision was upheld on appeal in a court decision that conceded that the crash was a “horrific event” but nevertheless within the officer’s job description and contemplated training.
The Supreme Court, however, found the accident to be horror-inducing and unexpected and therefore ordered the Appellate Division to review the case and determine whether there is enough evidence to show Mount’s disability was directly linked to the crash.
Pension records show Mount currently receives an annual pension of $41,300.
In a separate pension case, former Hammonton police Detective Gerardo “Gerry” Martinez will lose his accidental disability benefits after the Supreme Court determined that Martinez could have anticipated a situation involving a 27-year-old schizophrenic suspect losing his life.
Martinez was on the force from 1990 to 2010, the year that he negotiated with Donald Hoffman, a 27-year-old man who had fled police after pointing a gun at an EMT outside the Deptford Township Emergency Services Building and then holed up in his mother’s home, threatening to kill himself.
After police arrived, Hoffman allowed his mother, sister and a tenant to leave the house but he remained inside.
Without telling Martinez, who remained on the phone with the suspect through the night, the SWAT team burst into the home after the 12-hour standoff. The suspect pleaded with Martinez: “Help me, Gerry. They’re going to kill me.”
Martinez then heard two pops and silence. He then watched as the suspect’s body was removed from the home and placed on the lawn. Hoffman’s handgun turned out to be unloaded.
Martinez later was diagnosed with PTSD and major depressive disorder. The pension board ruled he was ineligible for an accidental disability pension but that decision was overturned on appeal.
The Supreme Court, however, overturned that appellate decision, saying that the incident was not “un-designed and unexpected” for an officer who had received 40 hours of training in hostage negotiations.
One of the SWAT officers involved in the shooting receives an accidental disability pension, according to Martinez’s lawyer, Louis Barbone.
Martinez’s pension is valued at $32,000 a year, pension records show.