On appeal from the Board of Review, Department of Labor, Docket No. 145,885.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Collester and Graves.
Theodore R. Giuttari (Giuttari), formerly a part-time non-tenured adjunct faculty instructor for Union County College (UCC), appeals from a final decision of the Board of Review (Board) requiring him to repay unemployment benefits he received in the amount of $2340 for the weeks ending May 27, 2006, through September 2, 2006. The Board determined Giuttari was ineligible for benefits during this period because he had a reasonable assurance of returning to work during the next school year, beginning in September 2006. On appeal, Giuttari claims he was eligible for benefits because he did not have an employment "contract or other form of commitment" and because of the overall "tenuous nature" of his employment. After reviewing the record in light of the applicable law, we affirm.
Giuttari was an adjunct instructor at UCC for more than two years----from September 2004 to December 2006. In the spring of 2006, he was assigned to teach a summer session course that was scheduled to commence on May 22, 2006. That course was cancelled, however, due to insufficient enrollment, but Giuttari returned to work in September 2006.
At the Appeal Tribunal hearing on April 25, 2007, Giuttari testified that "at some point in mid summer," he had been notified by UCC that he was assigned to teach "two courses in American Government," which began in September 2006. Those courses concluded in mid-December 2006. After Giuttari completed the fall semester, he was told by UCC that he could teach two additional courses during the spring semester, but he declined the offer because he had already accepted another full-time position.
The Appeal Tribunal concluded that Giuttari was disqualified from receiving benefits, pursuant to N.J.S.A. 43:21-4(g). This statutory provision prohibits instructional personnel at educational institutions from receiving unemployment benefits during summer recess, if they have "a contract or a reasonable assurance" of continued employment in the next school year. Ibid. The purpose of the statute is to avoid subsidizing teachers during their summer vacations. See Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) ("Denial of benefits...'conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods.'") (quoting Davis v. Commonwealth, Unemployment Comp. Bd. of Review, 394 A.2d 1320, 1321 (Pa. Commw. Ct. 1978)); Patrick v. Bd. of Review, 171 N.J. Super. 424, 425-26 (App. Div. 1979) (holding substitute teacher, who had a reasonable expectation of similar employment after summer recess, was properly declared statutorily ineligible).
A "reasonable assurance" of continued employment requires only "a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term." Sulat v. Bd. of Review, 176 N.J. Super. 584, 586 n.1 (App. Div. 1980). Because Giuttari commenced his employment at UCC in September 2004, and he was in "good standing with the college" when he was assigned to teach a summer session course commencing in May 2006, it was not unreasonable for the Appeal Tribunal to conclude he had "a reasonable assurance" of continuing his employment during the next academic year, commencing in September 2006. Giuttari appealed to the Board, but the Board upheld the Appeal Tribunal's decision.*fn1
The scope of our review of an agency decision is limited. "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law;
(2) the decision was arbitrary, capricious, or unreasonable; or
(3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). See generally, Pressler, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2008). Moreover, an administrative agency's exercise of statutorily delegated responsibility is entitled to "a strong presumption of reasonableness." City of Newark v. Natural Res. Council, 82 N.J. 530, 539 cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980).
In this matter, Giuttari contends that an out-of-state case, Cervisi v. Unemployment Ins. Appeals Bd., 256 Cal. Rptr. 142 (Ct. App. 1989), supports his position. However, the New Jersey statute governing this case is much different than the California statute the Cervisi court relied upon. Consequently, Cervisi is distinguishable and we do not view it as persuasive authority.
Based on our review of the record, we are satisfied that the Board's decision is supported by substantial credible evidence in the record, and, pursuant to N.J.S.A. 43:21-16(d)(1), Giuttari must refund the benefits he received in the amount of $2340. See Bannan v. Bd. of Review, 299 N.J. Super. 671, 675 (App. Div. 1997) (stating ...