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Ruth I. Michener v. Board of Review

October 11, 2011

RUTH I. MICHENER, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, PENNSBURY SCHOOL DISTRICT AND LAWRENCE TOWNSHIP BOARD OF EDUCATION, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 244,597.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2011

Before Judges Messano and Yannotti.

Ruth I. Michener appeals from a final determination of the Board of Review (Board), which found that she is ineligible for unemployment compensation benefits for the period from June 14, 2009, through September 5, 2009. We affirm.

This appeal arises from the following facts. In the 2007-2008 school year, Michener was employed by the Hamilton Township school district as a full-time teacher. In May 2008, the Hamilton Township district informed Michener that it would not be offering her a contract for the 2008-2009 school year.

Michener filed a claim for unemployment benefits in June 2008, seeking benefits for the period from June 29, 2008, through August 30, 2008. In a decision mailed on January 5, 2009, the Board determined that Michener was eligible for benefits under N.J.S.A. 43:21-4(g)(1) because, in the period covered by her claim, Michener did not have a "reasonable assurance" of continuing her employment as a full-time teacher in the next school year.

In the 2008-2009 school year, the Pennsbury and the Lawrence Township school districts employed Michener as a substitute teacher. At the end of that school year, both districts sent Michener a letter inquiring as to her availability to serve as a substitute teacher in the 2009-2010 school year. Michener responded and advised the districts that she would work for them both as a substitute teacher.

In July 2009, Michener filed a claim for unemployment compensation benefits for the period from June 14, 2009, through September 5, 2009. She received benefits for the weeks ending July 11, 2009, and July 18, 2009, totaling $1,098. However, in a decision mailed on July 29, 2009, a deputy claims administrator found that Michener was not eligible for benefits because she had been employed by an educational institution in the school year ending in June 2009, and she had a "reasonable assurance" of such employment in the 2009-2010 school year.

Michener filed an appeal to the Appeal Tribunal from the deputy's determination. On October 22, 2009, a hearing was held in the matter. In a decision mailed on October 26, 2009, the Appeal Tribunal upheld the deputy's determination. Michener appealed to the Board, which issued a decision that was mailed on May 5, 2010. The Board affirmed the Appeal Tribunal's decision but remanded the matter to the Appeal Tribunal for a hearing to determine whether Michener should be required to repay the $1,098 in benefits she had been paid on this claim.

In a decision mailed on June 28, 2010, the Appeal Tribunal found that Michener was liable to repay the $1,098. Michener did not file an appeal to the Board from the Appeal Tribunal's refund determination. Michener filed a notice of appeal with this court on July 6, 2010.

After the clerk of the court questioned whether the Board's decision was final and appealable as of right pursuant to Rule 2:2-3(a)(2), Michener filed a motion for leave to appeal the Board's decision pursuant to Rule 2:5-6(a). We granted the motion, and in our order we stated that Michener was not required to exhaust her administrative remedies regarding the refund determination because she had represented that she was not challenging that decision.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Public Serv. Elec. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95,103 (1985)). An agency's decision may not be set aside unless shown to be arbitrary, capricious or unreasonable. Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Michener argues that the Board erred by finding that she is not eligible for unemployment compensation benefits for the period from June 14, 2009 through September 5, 2009. Michener contends that, although she worked as a part-time substitute teacher in the school year that ended in June 2009, she did not have a "reasonable ...


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