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Cheryl B. Boland v. Board of Review and Midland Park Board of Education

June 19, 2012

CHERYL B. BOLAND, APPELLANT,
v.
BOARD OF REVIEW AND MIDLAND PARK BOARD OF EDUCATION, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 280,080.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2012 -

Before Judges Cuff and Lihotz.

Cheryl B. Boland appeals from the final decision of the Board of Review of the New Jersey Department of Labor, Division of Unemployment and Disability Insurance (Board) denying her eligibility for unemployment benefits. Boland asserts her employer, the Midland Park Board of Education (BOE), did not provide reasonable assurance of employment at the conclusion of the 2008-2009 school year and therefore she was eligible for benefits. We disagree and affirm.

Boland was employed by the BOE as a part-time, non-tenured paraprofessional teacher's aid for the 2008-2009 school year. At a May 12, 2009 public meeting, the BOE voted to continue Boland's employment for the 2009-2010 school year and thereafter sent Boland a memorandum entitled, "Non-tenured Re-Appointment for the 2009-2010 school year" announcing its action. The memorandum stated:

At a public meeting held on May 12, 2009, the [BOE] [ap]proved your non-tenured re-appointment for the 2009-2010 school year. Midland Park Education Secretaries Association is currently in negotiations with the [BOE] for a successor contract. All terms and conditions including salaries will be determined upon closure and ratification of a successor contract. Individual salary contracts [and] placement notification will be issued once the contract has been settled. Congratulations.

Boland contends Vice Principal Healey told her "there was no guarantee" her position would be available when the new school year began, because of administrative changes in her educational unit. Boland further asserts that because the BOE hired a new principal, superintendent and director of special services, there was no guarantee of her continued employment.

Boland concluded work on the final day of the school year, June 26, 2009, and received her final paycheck on June 30, 2009. On July 12, 2009, Boland filed a claim for unemployment benefits. Her request was initially granted and she received $1,211 in unemployment benefits from July 18, 2009, through August 29, 2009. "[S]ome time in August" Boland received a letter from the BOE advising of her assignment to the position of a "one-on-one aid" for the 2009-2010 school year, starting September 1, 2009. During the first week of September, Boland resumed her position after executing an employment contract.

On April 13, 2010, a Deputy for the Board determined Boland was "ineligible for benefits from 7/5/09 through 8/29/09 on the grounds that the claimant was employed by an educational institution and ha[d] reasonable assurance of performing such service for an educational institution in the following term." Boland was required to refund the previously paid $1,211 benefits.

Boland appealed from the Deputy's determination and a telephonic hearing was conducted by a Tribunal. After consideration of the testimony from Boland and Laura Rosini, the BOE's Payroll and Benefits Coordinator, the Tribunal affirmed the Deputy's determination concluding Boland was ineligible for unemployment benefits, citing N.J.S.A. 43:21-4(g)(3) and N.J.A.C. 12:17-12.4, because she had "reasonable assurance of reemployment with an [e]ducational [i]nstitution" in the same or a similar capacity for the 2009-2010 school year and was liable to refund the benefits she received, as mandated by N.J.A.C. 12:17-14.2 and N.J.S.A. 43:21-16(d).

Boland timely appealed to the Board, which issued a final decision affirming the findings and conclusions of the Tribunal. This appeal ensued.

The scope of our review of 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 Pub. Serv. Elec. & Gas Co. 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 intervene "'only 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. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

On appeal, Boland maintains the Board erred in finding she had reasonable assurance of reemployment. She argues Mr. Healey's statement that her position may not be available provided sufficient ...


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