KELLY A. BUSKEY VS. BOARD OF TRUSTEES, ETC. (TEACHERS' PENSION AND ANNUITY FUND) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3559-19
KELLY A. BUSKEY,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,
Respondent-Respondent.
__________________________
Argued November 9, 2021 – Decided November 22, 2021
Before Judges Mawla and Mitterhoff.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.
Jason E. Sokolowski argued the cause for appellant
(Zazzali, Fagella, Nowak, Kleinbaum & Friedman, PC,
attorneys; Jason E. Sokolowski, of counsel and on the
briefs).
Jeffrey Padgett, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Jeffrey Padgett,
on the brief).
PER CURIAM
Petitioner Kelly A. Buskey appeals from an April 6, 2020 final
administrative determination of respondent Board of Trustees (Board) of the
Teachers' Pension and Annuity Fund (TPAF) denying her request to extend her
Tier 2 TPAF membership. We affirm.
This case concerns the interpretation of two statutes governing TPAF
membership. N.J.S.A. 18A:66-7(a) provides: "Membership of any person shall
cease . . . if, except as provided in [N.J.S.A.] 18A:66-8, he [or she] shall
discontinue his [or her] service for more than two consecutive years[.]" N.J.S.A.
18A:66-8(a)(1) to (2) states: "If a teacher . . . has been discontinued from service
without personal fault . . . the teacher's membership may continue . . . if the
member returns to service within a period of [ten] years from the date of
discontinuance from service."
On September 1, 2009, Buskey enrolled in TPAF through her employment
with the South Brunswick Board of Education. On September 1, 2013, she
transferred to a TPAF-eligible, non-tenured teaching position with the Plumsted
Township Board of Education, where she remained until June 30, 2017.
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Plumsted did not renew Buskey's contract for the 2017-18 school year, and opted
not to review five other employees' contracts as well.
On March 5, 2019, the Division of Pensions and Benefits (Division)
notified Buskey in writing her TPAF account was scheduled to expire on June
30, 2019, because she had not made contributions to the account in two years.
On March 18, 2019, TPAF received a certification form from Plumsted, which
identified Buskey's status as "[l]aid off[,]" and "[o]ther." As an explanation for
the "other" sections, Plumsted wrote "[non]-renewed." Plumsted later amended
the certification, removing the marking for the "[o]ther" category and "[n]on-
renewed" to "[l]aid off" above which it wrote "[b]udget cut." The Division never
received the amended certification.
Buskey subsequently began working for the Shrewsbury Borough Board
of Education and continued her TPAF membership. On August 27, 2019, the
Division informed Shrewsbury it could not transfer Buskey's Tier 2 TPAF
contributions because her account had expired, and that Buskey should instead
enroll as a new TPAF member. Effective September 1, 2019, Buskey enrolled
in a new Tier 5 TPAF membership account.
Buskey contacted the Division asserting her account should not have
expired because her employment was terminated due to a reduction in force.
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The Division responded by letter informing her it "does not grant an extension
beyond the two years of inactivity for members who were terminated due to their
contract not being renewed. Therefore, your account has expired on June 30,
2019."
Buskey contacted the Division again and argued her membership in the
Tier 2 TPAF account should continue for up to ten years because she was laid
off from her teaching position for budgetary reasons, not for performance-
related issues. She claimed she was entitled to a statutory exemption from
expiration of membership because she returned to active service within the ten-
year period.
The Division denied Buskey's request, citing N.J.S.A. 18A:66-7 and
N.J.S.A. 18A:66-8. It noted there was no evidence indicating Buskey was laid
off to "qualify for the statutory exemption of expiration of membership beyond
two years." Buskey appealed. The TPAF Board affirmed and Buskey requested
a hearing in the Office of Administrative Law (OAL).
On April 6, 2020, the Board issued a final administrative determination
affirming denial of Buskey's request to extend the expiration date of her TPAF
account. The Board cited N.J.S.A. 18A:66-7 and denied a transfer to the OAL
because "there are no factual issues to be adduced at a hearing . . . ."
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The Board also concluded the N.J.S.A. 18A:66-8 exemption did not apply
to Buskey because "[t]he non[-]renewal of a non[-]tenured teacher's annual
contract does not constitute a reduction in number or a discontinuance of service,
which both pertain to tenured teachers." The Board cited the Supreme Court,
which stated: "The practice of offering separate, annual employment contracts
to non[-]tenured school employees is long-standing" and non-tenured school
employees "have no right to the renewal of their individual contracts . . . ."
Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support
Staff Ass'n, 192 N.J. 489, 497, 491 (2007). The Board also noted it "is a
management prerogative [to have] the right not to renew the contracts of non[-
]tenured teachers." Bd. of Educ., Twp. of Wyckoff v. Wyckoff Educ. Ass'n, 168
N.J. Super. 497, 501 (App. Div. 1979). As a result,
[t]he Board determined that the circumstances which
resulted in non-renewal of . . . Buskey's contract with
Plumsted . . . were not a lay[]off which would qualify
for the statutory exemption of expiration of
membership beyond two years. Instead, . . . Buskey's
annual contract was not renewed[,] and her
employment ended on June 30, 2017.
I.
Our "review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re
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Herrmann, 192 N.J. 19, 27 (2007)). We defer "to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J.
163, 171 (2014) (citing City of Newark v. Nat. Res. Council, Dep't of Env't Prot.,
82 N.J. 530, 539 (1980)). "[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. Voorhees for a Certificate
of Need, 194 N.J. 413, 422 (2008). We are "in no way bound by [an] agency's
interpretation of a statute or its determination of a strictly legal issue." Allstars
Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018)
(alteration in original) (quoting Dep't of Child. & Fams., Div. of Youth & Fam.
Servs. v. T.B., 207 N.J. 294, 302 (2011)); see also State v. S.B., 230 N.J. 62, 67
(2017) (stating statutory interpretation issues are reviewed de novo).
II.
On appeal, Buskey acknowledges N.J.S.A. 18A:66-7 terminates TPAF
membership if the member is inactive for more than two years. However, she
argues she was entitled to the exemption in N.J.S.A. 18A:66-8(a)(1) to (2)
because a non-renewal is encompassed by the "without personal fault" grounds
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envisioned by the statute. She argues the cases the Board cited are inapposite
and do not stand for the proposition that N.J.S.A. 18A:66-8 applies only to
tenured teachers. We are unpersuaded.
N.J.S.A. 18A:27-4.1(b) states: "A board of education shall renew the
employment contract of a certificated or non-certificated . . . employee only
upon the recommendation of the chief school administrator" and "[a]
non[-]tenured . . . employee who is not recommended for renewal by the chief
school administrator shall be deemed non[-]renewed." Accordingly, in Pascack
Valley, the Court held non-tenured employees "have no right to renewal of
the[ir] [employment] contracts." 192 N.J. at 492. "These employees are then
considered 'non[-]renewed' rather than terminated or dismissed." Id. at 493
(citing N.J.S.A. 18A:27-4.1(b)). To underscore the point, the Court
distinguished between employees who are terminated and those whose contracts
are simply not renewed. See id. at 492-93. This mirrored the Court's findings
in other cases that the term "layoff" "connotes involuntary dismissal during the
term of a contract, and is not applicable to the non[-]renewal of a particular
employee's appointment at the end of a fixed term." Camden Bd. of Educ. v.
Alexander, 181 N.J. 187, 200 (2004) (superseded on other grounds by N.J.S.A.
34:13A-5.3).
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Although these Supreme Court cases did not concern the application of
N.J.S.A. 18A:66-8(a)(1) to (2), we draw on precedent interpreting similar
language in other state pension systems. In Cologna v. Board of Trustees, Police
and Firemen's Retirement System, 430 N.J. Super. 362 (App. Div. 2013), we
interpreted N.J.S.A. 43:16A-3(5), a provision of the Police and Firemen's
Retirement System (PFRS), which states:
If a member . . . has been discontinued from service
through no fault of [their] own . . . [their] membership
may continue, notwithstanding any provision of this
article if such member returns to service within a period
of [five] years from the date of [their] discontinuance
from service.
Although the plaintiff voluntarily resigned from his job, we concluded that
N.J.S.A. 43:16A-3(5) was "confined to only members who lose their public
employment as the result of an employer's layoff or reduction in force, or
through leave of absence in accordance with the statute." Id. at 364. We found
"the phrase 'has been discontinued' is written in the passive voice. As such, it
connotes a situation in which an employer . . . took action against an employee
by discontinuing his services." Id. at 372. Furthermore, we held "the passive
term 'has been discontinued' . . . signifies that the employee in question, as the
recipient of the action, has been terminated from his [or her] job as a result of
the employer's own actions." Ibid. (quoting N.J.S.A. 43:16A-3(5)).
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Accordingly, because the plaintiff resigned voluntarily and not as a result of his
former employer's actions, he was not discontinued from service within the
meaning of N.J.S.A. 43:16A-3(5). See ibid.
Here, Buskey was not terminated, dismissed, or otherwise laid off as
envisioned by N.J.S.A. 18A:66-8. Rather, her contract expired and was not
renewed. Buskey relied on the "without personal fault" language in the statute,
disregarding the preceding language requiring the employee to "ha[ve] been
discontinued from service . . . ." See N.J.S.A. 18A:66-8(a)(1). Notwithstanding
the fault issue, the statutory extension did not apply to Buskey because she had
no right to continued employment after the expiration of her contract. See
Pascack Valley, 192 N.J. at 492.
Finally, we reject Buskey's assertion the Board was required to refer the
matter to the OAL for factfinding. The central issue was whether the statutory
exemption applies to non-tenured teachers. As a matter of law, it does not.
Therefore, a factfinding hearing was not required. See N.J.A.C. 17:3-1.7(a)(4).
Affirmed.
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