WILLIAM F. ARANGUREN v. BOARD OF REVIEW and OCEAN COUNTY VOCATIONAL TECHNICAL SCHOOL BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4424-09T3

WILLIAM F. ARANGUREN,

Appellant,

v.

BOARD OF REVIEW and

OCEAN COUNTY VOCATIONAL

TECHNICAL SCHOOL BOARD

OF EDUCATION,

Respondents.

_______________________________

May 25, 2011

Submitted February 9, 2011 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. 241,904.

William F. Aranguren, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Ocean County Vocational Technical School Board of Education has not filed a brief.

PER CURIAM

Claimant William F. Aranguren appeals from the final decision of the Board of Review (Board), which affirmed the determination by an Appeal Tribunal (Tribunal) finding him ineligible for the receipt of unemployment benefits from June 28 to September 12, 2009, on the grounds he was employed by an educational institution and had a reasonable assurance he would continue to perform such services in a subsequent academic year. N.J.S.A. 43:21-4(g)(1). Following our review, in light of the applicable legal standards, we affirm.

The facts are not disputed. Since 2005, claimant has been employed by the Ocean County Vocational Technical School (Ocean) as a substitute teacher, earning $85 per diem for a 7:30 a.m. to 2:10 p.m. school day. He remained available as a substitute teacher five days a week. At the end of each academic year, Ocean inquired whether claimant desired to continue working as substitute teacher for the upcoming academic year.

Most recently, at the close of the school year on June 19, 2009, Ocean notified claimant of its request that he continue for the upcoming school year. In response, claimant affirmed his intention to resume his position as a substitute teacher in September 2009. Claimant resumed his employment on September 14, 2009.

Claimant filed a claim for unemployment compensation benefits on June 28, 2009. A deputy claims examiner denied the application for benefits and claimant appealed.

A telephonic hearing was held before an Appeal Tribunal. Claimant testified on his own behalf and Frank Frazee, the school's business administrator, testified on behalf of Ocean. During the hearing, claimant conceded he was ineligible for benefits during the summer and narrowed his claim to the denial of unemployment benefits for the weeks ending September 5 and 12, 2009.

Frazee noted the school year began for the regular teaching staff on September 3, 2009; September 3 and 4 were professional development days and the first day of classes for students in the 2009 to 2010 academic year was September 8, 2009.

Relying on N.J.S.A. 43:21-4(g)(1), the Appeal Tribunal determined claimant was ineligible for benefits from the period beginning June 28 up to September 12, 2009. Claimant appealed and the Board of Review affirmed based upon the findings and conclusions of the Appeal Tribunal. This appeal followed.

The scope of our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the agency's determination carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). "We are obliged to defer to the [agency] when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations omitted). Accordingly, we will overturn an agency determination only if "'it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cnty., supra, 93 N.J. at 391); Campbell, supra, 39 N.J. at 562.

On appeal, claimant argues he was eligible to receive benefits for the limited period beginning with the first day of the school year until his first substitute teaching assignment. We disagree.

N.J.S.A. 43:21-4(g)(1) disqualifies a claimant from the receipt of unemployment benefits when the claimant is

[i]n an instructional research, or principal administrative capacity for any educational institution, [and] benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years . . . if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.

The regulation promulgated thereunder provides, in pertinent part:

(a) An employee of an educational institutional shall be ineligible for benefits for any week that begins during the period between academic years or terms and during vacation periods and holiday recesses, if the employee has reasonable assurance of returning to work in any such capacity, during the succeeding academic year or term or after the vacation period or holiday recesses.

1. The term "reasonable assurance" of returning to work means a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year, term, or remainder of a term . . . .

. . . .

3. An employee who is employed for all or part of a term in a day-to-day substitute position has reasonable assurance of recall if he or she is placed on a substitute list for the next academic year or term.

[N.J.A.C 12:17-12.4.]

Applying these principles, we are in accord with the Board's decision denying claimant benefits. Claimant's ineligibility for benefits during the weeks at issue is grounded on N.J.A.C 12:17-12.4(a)(3). In accordance with the regulation, claimant, as a substitute teacher, need not be guaranteed work from the first day of the school year as he contends. When he was placed on the substitute list as of June 28, 2009, claimant received reasonable assurance of the resumption of his employment with Ocean for the next academic year. His employment status did not change from one school year to the next as he began substituting the week of September 14.

We accord substantial deference to an agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). The Board's determination finding claimant ineligible to receive unemployment benefits was "supported by substantial credible evidence in the record as a whole." Barry, supra, 100 N.J. at 71 (citation omitted). We discern no basis to disturb that result.

A