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Former West New York PD Officer Richard Rivera
Richard Rivera’s attempt is “neither rational nor pragmatic,” the state appeals court wrote in a decision released this week.
“Of the hundreds of police agencies in this State, Rivera is disqualified from only one … in light of his voluntary acceptance of the settlement agreement and receipt of its benefits over [the past eight] years,” it says.
“Both parties thought they were buying perpetual peace,” the judges added, “which West New York, in particular, paid dearly for the privilege.”
Such deals are “a two-way street … requiring not only government’s fair dealing with the public, but also that men must turn square corners when they deal with the Government,” the panel found.
Rivera’s ability to now return to work, along with his agreement not to do so in West New York, “still leaves him with a myriad of public sector jobs for which he can seek employment,” the Appellate Division panel wrote.
Rivera responded: “The taxpayers of New Jersey should be appalled the state will pay me more than $1 million in disability benefits, while I’m not disabled or entitled to these benefits.
“It’s frustrating for honest people trying to do the right thing particularly in the current economy,” he told CLIFFVIEW PILOT this afternoon. “There aren’t incentives for being honest.
“Had I kept collecting the benefits while not being disabled, I would have committed fraud and that is personally unacceptable. I have to continuously pay attorneys to enforce the law and do the job of the Office of Attorney General and Police Pension Board since they took no action when the case was originally called. The Legislature really needs to do something about the pension system.”
Rivera began with the West New York department in 1990 and filed a federal whistleblower lawsuit seven years later against the town, the force and the chief.
He was terminated in 2002 on charges of writing a swastika on a test booklet.
Rivera contended that the charges, while true, were brought in retaliation for his cooperation with the FBI in a corruption probe. He said that he drew the symbol after learning that it once represented peace in the Hindu culture.
Both sides eventually “resolved their dispute and memorialized the disposition in the settlement agreement” and the complaint was dismissed, the appeals judges noted.
Rivera, in a separate email to CLIFFVIEW PILOT, wrote: “For clarification, there were 11 separate internal affairs investigations against me with 46 administrative charges. I have in the past and still refute all of the administrative charges with the exception of not providing the police department with a current phone number and address (November 1995). All of the administrative charges were dismissed against me as part of my settlement with the Town of West New York which is a public document. All of the administrative charges were filed against me after my cooperation with the FBI. I didn’t provide the agency with a phone number or address because I was living in an FBI safehouse at the time and the targets of my investigation included two dozen police officers and chief of police. I have a letter from the U.S. Attorney of New Jersey outlining my participation and the fact I was never implicated in, but initiated the investigation.”
West New York agreed to file for an involuntary disability pension for Rivera and to allow him to file his own request with New Jersey Police and Firemen’s Retirement System (PFRS), under the agreement, following a determination by doctors that he suffered from post-traumatic stress disorder.
Rivera accepted $675,000 as part of the deal while agreeing to “never reappy for reinstatement to employment” with the town in any way, including as a police officer, the appeals panel ruling says.
A little over two years ago, Rivera sought reinstatement, saying that he couldn’t continue to collect the pension when he was no longer disabled.
He first wrote directly to West New York’s public safety director, the judges said. Receiving no response, he applied to the PFRS. He also filed a legal action in Hudson County seeking reinstatement, the ruling says.
A Law Division judge “concluded that Rivera had, in the settlement agreement, waived the statutory right to reinstatement” and that the PFRS found him fit to work again, this week’s ruling from the higher court says.
The judges said Rivera made his arguments to them “largely in a vacuum because, for the most part, he ignores the effect of the settlement agreement and argues that its provision barring reinstatement is contrary to public policy and unenforceable.
“We reject all of Rivera’s arguments,” they wrote.
Any beneficiary under 55 who retired on a disability pension must be examined every five years “in order to determine whether or not the disability which existed at the time he was retired has vanished or has materially diminished,” the appeals decision emphasizes.
If a doctor determines the officer is no longer disabled, the employer is required to return that person to active duty, “as if the officer had never been disabled and the officer’s service had never been interrupted,” state law says.
The reason, the appeals judges said, “is to relieve the PFRS of paying benefits and to have the recovered employee return to his or her former employment where salary, benefits, and [perks] of office will be paid by the local employer.”
However, they said, “we are not convinced that the insignificant pension savings derived from Rivera’s removal from the PRFS rolls trumps this State’s interest in reducing the enormous expenses of a publicly-funded dispute resolution mechanism — the judicial branch of government — by encouraging and fostering the settlement of lawsuits.”
Both sides “are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone. In recognition of this principle, courts will strain to give effect to the terms of a settlement wherever possible.”
Any effort to bypass that arrangement shouldn’t be tolerated, the appeals judges emphasized. A court “should not re-write a contract or grant a better deal than that for which the parties expressly bargained,” they concluded.
“We have no hesitation in determining that Rivera gave up his right to force West New York to take him back as a police officer,” the judges found. “That is a plain meaning of the settlement agreement and fully conforms to the logical intention of the parties.”
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