BRYAN MCPHEE v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0281-06T10281-06T1

BRYAN MCPHEE,

Appellant,

v.

BOARD OF TRUSTEES, PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondents.

______________________________

 

Submitted July 3, 2007 - Decided July 23, 2007

Before Judges Parker and Seltzer.

On appeal from a final Administrative

Determination of the Board of Trustees

of the Public Employees' Retirement

System.

Bryan McPhee, appellant pro se.

Stuart Rabner, Attorney General,

attorney for respondent (Patrick

DeAlmeida, Assistant Attorney General, of counsel; Dawn M. Harris, Deputy

Attorney General, on the brief).

PER CURIAM

Bryan McPhee appeals from a final agency decision of the Board of Trustees of the Public Employees' Retirement System (PERS) entered July 28, 2006, "denying [McPhee's] request for enrollment in the PERS for [his] employment as a substitute teacher with multiple employers from February 2002 to February 2005." We affirm.

The final decision, in the form of a letter from PERS to McPhee, provided the background of McPhee's application and the basis for the decision that he was not eligible:

In January 2005, you e-mailed the Division inquiring about an enrollment application for PERS submitted by the Camden County Technical Schools based on your employment as a substitute teacher. The Division responded that the application was returned to the employer for additional information.

By letter to the Division dated February 16, 2005, you provided information regarding the dates you were employed as a substitute teacher at various (6) school districts from February 2002 to February 2005. On March 2, 2005 the Division responded that eligibility for enrollment in the PERS as an on-call substitute teacher requires that you work a minimum of 100 days during the year while serving an average of at least ten days per month. Further, the minimum number of days requirement must be satisfied at each location. This letter also stated that based on the information you provided, it did not appear that you had continuous service at each location. However, the determination regarding eligibility would be made after receipt of completed verification forms from each of the employers. Subsequently, by letter dated July 28, 2005, the Division notified you that they received verification from all 6 employers where you were employed as a substitute teacher. A review of the documentation indicated that you did not meet the minimum number of days at each location required for enrollment in the PERS.

By letter dated September 12, 2005, you provided additional information regarding your employment with the Lenape School District. On October 4, 2005 the Division responded that upon review of the documentation its position remained unchanged; your employment as a substitute teacher did not meet the eligibility requirements for enrollment in the PERS.

The decision correctly states the facts underlying the application and explains fully and, in our view, correctly, the basis for the denial of enrollment. Accordingly, there is no basis for our intervention.

N.J.S.A. 43:15A-7(b) permits enrollment in PERS by a "person becoming an employee of the State or other employer

. . . including a temporary employee with at least one year's continuous service." The implementing regulation, N.J.A.C. 17:2-2.3(a)(6), defines employment which is temporary and not continuous as employment of a person "who is employed on an on-call basis and works on average less than 10 days a month throughout the regular work year of the employer."

The Board interpreted the statute and the regulation as requiring employment for an average of ten days a month with at least one employer throughout that employer's regular work year. It interpreted the statute as precluding the aggregation of the days worked for multiple employers to reach the required ten days per month throughout the employer's work year.

Our role in reviewing decisions of administrative agencies is a limited one.

Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role is restricted to four inquiries: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
 
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

The burden of demonstrating that the action was arbitrary, capricious or unreasonable is upon the party challenging the action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

McPhee does not claim to have worked an average of ten days for any one employer during that employer's work year. Instead, he asserts that "[a] variety of factors including, lack of consumer information, lack of state oversight, numerous loopholes and insignificant penalties, allow employers to thwart the intent of the Legislature."

We are satisfied PERS correctly found that McPhee had failed to meet the eligibility requirements for enrollment. We are also satisfied that the interpretation given by PERS to both the statute and the implementing regulation is reasonable and, in our view, correct. The statute refers to eligible persons employed "by the State or other employer." The plain reading of the statute requires employment with one employer, not multiple employers, and the implementing regulation defines an employee's "continuous service" in terms of the work performed for each employer.

PERS has suggested in its submission, albeit without evidential support, that its interpretation is necessary "to safeguard the integrity of the fund." McPhee, whose burden it is to demonstrate that the action of PERS was unreasonable, has not addressed the issue.

In any event, the interpretation by PERS of both the statute and its regulation is entitled to deference from us.

When an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694, 702-04 (1984).
 
[Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999).]

The factual findings of PERS were based on uncontradicted evidence and the interpretation of the statute and the implementing regulation is reasonable. McPhee's arguments to the contrary lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).

 
Affirmed.

(continued)

(continued)

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A-0281-06T1

July 23, 2007