BRANCHBURG TOWNSHIP BOARD OF EDUCATION v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04808-12T3

BRANCHBURG TOWNSHIP BOARD

OF EDUCATION,

Appellant,

v.

BOARD OF REVIEW AND

VASIL HLINKA, JR.,

Respondents.

May 14, 2015

 

Argued September 17, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Board of Review, Department of Labor, Docket No. 295,748.

David B. Rubin argued the cause for appellant.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

Respondent Vasil Hlinka, Jr., has not filed a brief.

PER CURIAM

The Branchburg Township Board of Education (Branchburg) appeals from the May 2, 2013 final decision of the Board of Review (Board), after remand, concluding that claimant Vasil Hlinka, Jr., was eligible for unemployment benefits from July 4, 2010, through September 4, 2010. The prior procedural history need not be detailed. Suffice it to say the Board's decision reversed that of the Appeal Tribunal.1 We affirm.

I

Hlinka and a Branchburg representative testified during the course of two hearings. The record establishes that Hlinka was employed as a substitute custodian by Branchburg commencing in 2008. Custodians are employed on a twelve-month rather than a ten-month school-year basis. Hlinka was appointed as a substitute custodian for the 2009-2010 year, and again for the 2010-2011 year. Hlinka did not have any work, however, when he filed his benefit claim during the summer in July 2010. The Board found that Hlinka only worked three base weeks of employment and earned $1359.75 during the quarter ending September 30, 2010. The Board also directed that the Deputy should determine whether Hlinka "otherwise met the week-to-week requirements of eligibility" for benefits.

On appeal Branchburg argues two points. First, that as an employee for an educational institution, Hlinka was ineligible for unemployment benefits during the summer recess. Second, Branchburg contends that Hlinka's status as a substitute custodian made his employment too uncertain to make him eligible for benefits.

II

Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J.197, 210 (1997). In challenging the agency's conclusion, an appellant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of reasonableness. SeeGloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J.384, 390-91 (1983). We also "accord substantial deference to the [interpretation] given to a statute by the agency charged with enforcing that statute." Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J.16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported "by substantial credible evidence in the record as a whole[,]" Barry v. Arrow Pontiac, Inc., 100 N.J.57, 71 (1985) (quoting Gloucester Cnty. Welfare Bd., supra, 93 N.J.at 391), or inconsistent with the enabling statute or legislative policy. Brady, supra, 152 N.J.at 210-11.

A.

It is undisputed that N.J.S.A. 43:21-4(g)(1) and (2) disqualify employees of educational institutions from payment of unemployment during recess periods between successive academic years.2 So long as there is a "reasonable assurance" that the individual will be rehired for the following year or term, they are ineligible for benefits. The intent of the statute is to address the unique characteristics of educational employment. See Sarisky v. E.R. Squibb & Sons, Inc., 233 N.J. Super. 533, 536 (App. Div. 1989); Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985); Sulat v. Bd. of Review, 176 N.J. Super. 584, 588 (App. Div. 1980); Patrick v. Bd. of Review, 171 N.J. Super. 425, 426 (App. Div. 1979).

The statutory bar, however, does not apply to those individuals whose employment with an educational institution is on a twelve-month or year-round basis. See Weber-Smith v. Bd. of Review, 337 N.J. Super. 319, 322-23 (App. Div. 2001); N.J.A.C. 12:17-12.4(e). Hlinka was appointed each year on a twelve-month basis; thus the Board determined that he was "not ineligible" for benefits as a result of N.J.S.A. 43:21-4(g)(2). Accordingly, on this point we agree with the Board's decision that Hlinka was not ineligible for unemployment benefits from July 4, 2010, through September 4, 2010, despite being employed by a board of education.

B.

Branchburg also contends that Hlinka, by virtue of being a substitute and not a part-time or full-time employee, was ineligible for benefits. The cases Branchburg cites with regard to this issue, however, are either distinguishable or support the Board's conclusion that a substitute can qualify for unemployment benefits regardless of his title.

In Charatan, supra, 200 N.J. Super. at 83-84, we found that the N.J.S.A. 43:21-4(g)(1) limits did not apply when a board of education removed tenureeligible staff at the end of a school year and placed them on a substitute list for the school term resuming in the fall. The rationale was that the prospect of substitute teaching in the fall was not a sufficient assurance of work to trigger the ban found in the statute. Id. at 84. But that case was not decided solely on the basis that the employees were "substitutes." Id. at 83. Rather, the issue under consideration was whether the statutory bar would apply given the change in status from full-time employees to substitutes. Ibid. The claimants in Charatan lost regular part-time employment and instead were "relegated [] to the uncertain status of day-to-day substitutes" the following fall. Ibid. It was their employment loss and ensuing change in status, rather than the option with which they were presented by the school board, that was pivotal in the case. Ibid. Ultimately, we decided the interplay between N.J.S.A. 43:214(g)(1) and their change in status did not bar them from eligibility. Id. at 84.

Similarly, in Sulat, the issue was whether a full-time school teacher was entitled to unemployment benefits when her contract for the next year was not renewed but she was placed on the district's substitute list. Sulat, supra, 176 N.J. Super. at 586-87. The issue in Sulat, similar to Charatan, was the change in status from full-time employment to substitute teaching, and whether that change nonetheless triggered the statute barring payment of benefits over the summer. Id. at 586. We found in this case that there was no reasonable assurance of continued employment, and thus the bar did not apply. Id. at 588-90. Because the question under consideration in Charatan and Sulat was whether a significant change in the status of an employee made them eligible for benefits over the summer months, the cases are distinguishable.

The seminal case that supports Hlinka's eligibility for benefits is Patrick, supra, 171 N.J. Super. at 424. The claimant in Patrick, a substitute teacher, was denied unemployment benefits for the summer months because she had reasonable assurance that she would continue to be a substitute in the following school year. Id. at 425. We concluded that because she had a reasonable expectation of the same employment the coming school year as she had in the past academic term, the statutory bar did come into play, making her ineligible for benefits during the school recess. Id. at 426-27. Importantly, the claimant's status as a substitute had no bearing on the court's decision and did not make her ineligible for benefits. Id. at 426. Thus, whether substitute or not, the issue to be decided on a case-by-case basis is whether the nature of the "substitute" work, based on the claimant's employment history, provides certainty of employment. Here, despite being classified as a substitute, Hlinka did not have certainty of employment during the summer months.

C.

Applying these principles, we agree with the Board's decision that Hlinka was not ineligible to pursue his unemployment benefits claim after further exploration of his week-to-week eligibility. The educational exemption statute does not bar him from collecting benefits as he was a twelvemonth and not a ten-month employee. Additionally, his status as a substitute was not a per se bar from the collection of benefits.

Affirmed.

1 No copy of that decision is included in the record.

2 Section 43:21-4(g)(1) pertains to employees in an "instructional research, or principal administrative capacity," while section 43:21-4(g)(2) pertains to employees "in any other capacity for an educational institution."