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McPhee v. Board of Trustees

July 23, 2007

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



On appeal from a final Administrative Determination of the Board of Trustees of the Public Employees' Retirement System.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Parker and Seltzer.

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 ...


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