NAOMI ASHNER v. BOARD OF REVIEW, BERGENFIELD BOARD OF EDUCATION et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2509-04T2

NAOMI ASHNER,

Appellant,

v.

BOARD OF REVIEW, BERGENFIELD

BOARD OF EDUCATION and

TENAFLY BOARD OF EDUCATION,

Respondents.

 

Submitted: May 30, 2006 - Decided June 13, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the final decision of the Board of Review, Docket Number 43,991.

Naomi Ashner, appellant, pro se.

Zulima V. Farber, Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Allan J. Nodes, Deputy Attorney General, on the brief).

No brief was filed by respondents Bergenfield Board of Education and Tenafly Board of Education.

PER CURIAM

Appellant Naomi Ashner appeals from a final administrative decision of the Board of Review issued on November 30, 2004, determining that she was ineligible for unemployment compensation benefits pursuant to N.J.S.A. 43:21-4(g)(1). The following factual and procedural history is relevant to our consideration of arguments advanced by the parties.

Prior to filing for benefits, appellant worked as a home instructor for the Bergenfield Board of Education and the Tenafly Board of Education for four or five years. Appellant worked with emotionally disturbed students and with students who were out of school temporarily due to suspension or for medical reasons. Appellant had performed home instruction services for various school districts for sixteen to eighteen years.

Appellant's last day of teaching for Bergenfield was June 23, 2004, and for Tenafly, June 22, 2004. Appellant testified before the Appeal Tribunal that for each of the preceding years, she had returned to her home-instruction employment following completion of the schools' summer recess, when there were students in need of home schooling.

On June 24, 2004, appellant filed a claim for unemployment compensation benefits. Separate written determinations of a deputy claims examiner mailed on July 28, 2004, ruled that she was disqualified for benefits, stating:

YOU ARE EMPLOYED BY AN EDUCATIONAL INSTITUTION OR EDUCATIONAL SERVICE AGENCY. YOU ARE CLAIMING BENEFITS FOR A PERIOD BETWEEN ACADEMIC YEARS OR TERMS. YOU WERE EMPLOYED DURING A PREVIOUS ACADEMIC YEAR OR TERM, AND HAVE REASONABLE ASSURANCE OF PERFORMING SUCH SERVICE IN THE FOLLOWING YEAR OR TERM. YOU ARE INELIGIBLE FOR BENEFITS.

Appellant filed timely appeals, the matters were consolidated and, on September 13, 2004, a hearing was conducted in the Appeal Tribunal before an appeals examiner.

At the hearing, Thomas Egan, Business Administrator for the Bergenfield school district, testified that appellant would be called back for work when home instruction was needed during the 2004-05 school year. Dr. Scharmin, Director of Special Services with the Tenafly school district, stated he had informed appellant that she would be recalled during the 2004-05 school year when home instruction was needed.

On September 14, 2004, the Appeal Tribunal issued written a decision, finding appellant was disqualified for benefits pursuant to N.J.S.A. 43:21-4(g)(1), which excludes individuals employed by educational service agencies from receiving unemployment benefits during summer school recesses.

Appellant filed a timely appeal. On November 30, 2004, the Board of Review issued a final administrative decision, adopting the findings and conclusions issued by the Appeal Tribunal, and stating:

Additionally, since school ended for the above named educational institutions on June 23, 2004 and June [22,] 2004, respectively, and opened on September 7, 2004, the period of ineligibility is from June 27, 2004 through September 11, 2004, in accordance with N.J.S.A. 43:21-4(g)(1).

On appeal, appellant argues that she was entitled to benefits because she had no contract with the school districts, nor did she have a reasonable assurance of re-employment. After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issue presented by appellant is without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(D) and -3(e)(1)(E), and we affirm substantially for the reasons set forth in the final administrative decision issued by the Board of Review.

The Board's decision is supported by substantial, credible evidence contained in the record, and is neither arbitrary, capricious, nor unreasonable. Brady v. Board of Review, 152 N.J. 197 (1997). The evidence supported the Board's conclusion that there was "a reasonable assurance that" appellant would be offered the same employment by Bergenfield and Tenafly Boards of Education for the 2004-05 academic year. In fact, appellant had explicitly been so informed. Accordingly, she was disqualified for benefits pursuant to N.J.S.A. 43:21-4(g)(1).

Affirmed.

 

Footnote continued on next page.

5

A-2509-04T2

June 13, 2006