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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 doubt of her continued employment. We are not persuaded.

The Unemployment Compensation Act, N.J.S.A. 43:21-1 to -71, is a remedial act, "the primary objective of [which] . . . is to provide a cushion for the workers of New Jersey 'against the shocks and rigors of unemployment.'" Carpet Remnant Warehouse, Inc. v. N.J. Dep't. of Labor, 125 N.J. 567, 581 (1991) (quoting Provident Inst. for Sav. in Jersey City v. Div. of Emp't Sec.,

32 N.J. 585, 590 (1960)). Unemployment benefits are only paid to those who meet the Act's eligibility requirements. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 455 (App. Div. 1967). The "right to unemployment compensation benefits is purely statutory[.]" Lowden v. Bd. of Review, 78 N.J. Super. 467, 469 (App. Div. 1963). A person seeking unemployment compensation must prove his or her entitlement to benefits. Stonco v. Bd. of Review, 106 N.J. Super. 6, 10 (App. Div. 1969).

In its determination, the Board relied on N.J.S.A. 43:21-4(g)(1), which provides an exception to eligibility for unemployment compensation benefits, tailored to meet the unique ten-month term of educational employment. The statute provides in pertinent part: benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years . . . to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms[.] [Ibid.]

Moreover, N.J.A.C. 12:17-12.4(a) provides that an employee of an educational institution is not eligible for benefits for any week that begins during the period between academic years if the employee has a "reasonable assurance" of returning to work "in any such capacity" in the succeeding academic year. The regulation also states:

The term "reasonable assurance" of returning to work means a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year . . . . "Any such capacity" means the same or similar capacity and refers to the type of services provided, that is, a professional capacity as provided by N.J.S.A. 43:21-4(g)(1) or nonprofessional capacity as provided by N.J.S.A. 43:21-4(g)(2). [N.J.A.C. 12:17-12.4(a)1.]

Denial of benefits to such persons "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." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (internal quotation marks omitted).

The question before us is whether the credible evidence sufficiently supports the finding that Boland's period of unemployment was an anticipated hiatus between academic years because her employment relationship would continue in September. Boland was notified of the May 12, 2009 BOE action in approving her reemployment for the upcoming school year. The delay in providing a contract was also explained by the BOE's letter; that is, the terms of the new contract were being negotiated. The Board correctly concluded the letter satisfactorily provided Boland with reasonable assurances as "a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year[.]" N.J.A.C. 12:17-12.4(a)1. Her receipt of a formal written contract or "a guarantee of employment" was not necessary.

In the face of this evidence, Boland's contrary contentions of oral statements that her rehire was uncertain fail to establish her right to unemployment compensation benefits.

Patrick v. Bd. of Review, 171 N.J. Super. 424, 426 (App. Div. 1979).

Because Boland was ineligible to receive benefits she must repay the monies remitted. N.J.S.A. 43:21-16(d).

Affirmed.

20120619

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