DONNA PLATT VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM(PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-0516-15T4

DONNA PLATT,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, PUBLIC
EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.
_______________________________

Argued April 27, 2017 - Decided June 19, 2017

Before Judges Lihotz, O'Connor and Mawla.

On appeal from the Board of Trustees, Public
Employees' Retirement System, Docket No. 2-
931821.

Stuart A. Platt argued the cause for appellant
(Platt & Riso, P.C., attorneys; Mr. Platt, on
the brief).

Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Ignatowitz, on the brief).

PER CURIAM
 Petitioner Donna Platt appeals from the August 19, 2015 final

determination of the Board of Trustees (Board) of the Public

Employees' Retirement System (PERS), denying her request for

pension participation and accrual of service credit, following the

adoption of N.J.S.A. 43:15A-7.2. The statute provides individuals

engaged under a professional services contract as defined in the

Local Public Contracts Law (LPCL), N.J.S.A. 40A:11-1 to -51, are

ineligible for PERS enrollment as of January 1, 2008. N.J.S.A.

43:15A-7.2(a). The Board adopted and affirmed the initial decision

issued by an Administrative Law Judge (ALJ), who concluded Platt,

appointed as a part-time municipal prosecutor in four

municipalities, was not a municipal employee, but serving pursuant

to a public services contract, and her engagement was not service

eligible for PERS credit.

On appeal, Platt argues the Board erroneously applied

N.J.S.A. 43:15A-7.2 to the facts and circumstances presented

because she was an employee eligible to participate in PERS,

despite the professional nature of the legal services she provided.

We disagree and affirm.

I.

Platt first enrolled in PERS in January 1993. In 2007, Platt

was reappointed as the municipal prosecutor in Winslow Township

(Winslow), the Borough of Hi-Nella (Hi-Nella), the Borough of

2 A-0516-15T4
Chesilhurst (Chesilhurst), the Borough of Berlin (Berlin), and the

Township of Berlin. She continued PERS participation based on

these appointments.

In March 2010, the Division of Pensions and Benefits

(Division) commenced an investigation, which examined Platt's

eligibility to continue her PERS participation. The Division's

May 16, 2012 letter decision concluded Platt was an employee of

the Township of Berlin and, based on that employment she remained

eligible to participate in PERS. However, the Division also

concluded Platt was engaged under a professional services contract

in the remaining four municipalities, rendering her ineligible for

PERS participation and service credit.

When the Board concurred with the assessment Platt's

continued service as the municipal prosecutor in the identified

municipalities was not pension creditable, she challenged the

determination, prompting transfer of the matter to the Office of

Administrative Law for review as a contested case.1 See N.J.S.A.

52:14F-1 (establishing the Office of Administrative Law for

independent review of contested administrative matters); see also

1
The Board challenged only Platt's participation in PERS after
the date Chapter 92 became effective. To be clear, our decision
does not affect Platt's entitlement to any benefits resulting from
contributions she made to PERS prior to Chapter 92 becoming
effective on July 1, 2008.

3 A-0516-15T4
N.J.S.A. 52:14B-10 (establishing procedures for review by ALJs).

Following a three-day hearing, written summations were submitted

and the record closed.

The ALJ's Initial Decision, issued on November 3, 2014,

analyzed Platt's specific relationship, duties, circumstances of

appointment, and work conditions as the municipal prosecutor in

each of the four designated municipalities. Included was

testimonial evidence from Platt and others, as well as thirty-

three joint exhibits and thirty-eight documents separately

presented by the respective parties.

Although the detail of Platt's respective appointments

varied, the ALJ found the process was substantively the same,

namely, in each instance Platt was appointed to provide

professional services and was engaged under a professional

services contract as defined in the LPCL. Therefore, the

appointment could not result in PERS participation, as of January

1, 2008, pursuant to N.J.S.A. 43:15A-7.2(a).

Platt filed exceptions to the ALJ's decision. Following the

Board's initial review, a limited remand was ordered and the record

reopened. Platt presented testimony from Chesilhurst's Deputy

Borough Clerk, who discussed Borough resolutions appointing Platt

as municipal prosecutor, including Resolution 2011-12, which

designated the appointment of "Donna Sigel Platt, P.C." Further,

4 A-0516-15T4
the remand hearing corrected the date of Platt's ineligibility,

as the ALJ's initial decision mistakenly recited "January 1, 2007."

Otherwise, the decision on remand did not alter the conclusion

Platt remained ineligible for PERS enrollment after January 1,

2008.

The Board considered Platt's appeal challenging the findings

and conclusions of the ALJ. Following its review, the Board

adopted the findings, as amended on remand, and rendered its

conclusion in an August 20, 2015 final decision. This appeal

ensued.

II.

The Legislature adopted a publicly funded pension system

covering not only State employees, but qualifying municipal

employees as well. For these employees, pension statutes provide

"deferred compensation for services rendered." Uricoli v. Bd. of

Trs., 91 N.J. 62, 71 (1982). Thus, a grant of retirement security

attached to public employment has been viewed as "encouraging

qualified individuals to enter and remain in public service."

Ibid. (quoting Masse v. Pub. Emp. Ret. Sys., 87 N.J. 252, 261

(1981)).

Decreases in State revenue and other policy considerations

led to the adoption of various statutory amendments modifying the

state pension system. The Governor's Executive Order No. 39,

5 A-0516-15T4
signed on May 25, 2005, created the Benefits Review Task Force

(Task Force) assigned to

"[e]xamin[e] the current laws, regulations,
procedures and agreements governing the
provision of employee benefits to State and
local government workers[,]" and "recommend[]
changes to the laws, regulations, procedures
and agreements designed to control the costs
of such benefits to the State's taxpayers,
while ensuring the State's public employees a
fair and equitable benefit system."

[N.J. Benefits Review Task Force, Report of
the Benefit Review Task Force to Acting
Governor Richard J. Codey 1 (Dec. 1, 2005).]2

The Task Force recommended reform of the pension structure,

in part, to "preserv[e] the integrity of the pension funds for

those who have dedicated their lives to public service[.]" Id.

at 18. Apt to this matter, the Task Force found:

Professional services vendors, such as
municipal attorneys, . . . who are retained
under public contracts approved by an
appointing agency should not be eligible for
a pension. In our opinion, these employees
simply do not meet the original purpose of the
public retirement plan and should not be
eligible to participate in any pension plan.

[Ibid.]

Thereafter, a Special Session Joint Legislative Committee on

Public Employee Benefits Reform was formed to consider the Task

2
Report can be found at http://www.state.nj.us/
benefitsreview/final_report.pdf.

6 A-0516-15T4
Force's recommendations. Regarding professional services

contracts the Committee proposed "the enactment of legislation to

exclude all professional service contractors from membership in

PERS." Joint Legislative Committee, Public Employee Benefits

Reform: Final Report 83 (Dec. 1, 2006), http://www.njleg.state.nj.

us/PropertyTaxSession/OPI/jcpe_final_report.pdf.

Subsequently, the Legislature enacted Public Law 2007, L.

2007, c. 92 (Chapter 92), which introduced dramatic changes to the

public pension system. Codified at N.J.S.A. 43:15C-1 to -15,

Chapter 92 created the Defined Contributions Retirement Program

(DCRP), as an alternative to PERS, which became effective on July

1, 2007.

The reforms in Chapter 92 also included the enactment of

related statutes, directed to modifying PERS. At issue is N.J.S.A.

43:15A-7.2, which changed eligibility rules for pension

participation by individuals serving in certain government

positions, pursuant to professional services contracts or as

independent contractors. Addressing providers of professional

services, N.J.S.A. 43:15A-7.2 states, in pertinent part:

a. A person who performs professional
services for a political subdivision of this
State . . . under a professional services
contract awarded in accordance with [N.J.S.A.
40A:11-5], N.J.S.[A.] 18A:18A-5 or [N.J.S.A.
18A:64A-25.5], on the basis of performance of
the contract, shall not be eligible for

7 A-0516-15T4
membership in the Public Employees' Retirement
System. A person who is a member of the
retirement system as of the effective date of
[Chapter 92] shall not accrue service credit
on the basis of that performance following the
expiration of an agreement or contract in
effect on the effective date. . . . No
renewal, extension, modification, or other
agreement or action to continue any
professional services contract in effect on
the effective date of [Chapter 92] beyond its
current term shall have the effect of
continuing the membership of a person in the
retirement system or continuing the accrual
of service credit on the basis of performance
of the contract.

b. A person who performs professional
services for a political subdivision of this
State . . . shall not be eligible, on the
basis of performance of those professional
services, for membership in the Public
Employees' Retirement System, if the person
meets the definition of independent contractor
as set forth in regulation or policy of the
federal Internal Revenue Service for the
purposes of the Internal Revenue Code. Such
a person who is a member of the retirement
system on the effective date of [Chapter 92]
shall not accrue service credit on the basis
of that performance following the expiration
of an agreement or contract in effect on the
effective date.

Nothing contained in this subsection shall be
construed as affecting the provisions of any
agreement or contract of employment in effect
on the effective date of [Chapter 92], whether
or not the agreement or contract specifically
provides by its terms for membership in the
retirement system. No renewal, extension,
modification, or other agreement or action to
continue any such agreement or contract in
effect on the effective date of [Chapter 92]
beyond its current term shall have the effect

8 A-0516-15T4
 of continuing the membership of a person in
the retirement system or continuing the
accrual of service credit on the basis of
performance of the agreement or contract.

As used in this subsection, the term
"professional services" shall have the meaning
set forth in [N.J.S.A. 40A:11-2].

[N.J.S.A. 43:15A-7.2.]

Once Chapter 92 was enacted, the Division published Local

Finance Notices (LFN), issuing specific guidance to local

officials regarding the application of these pension reforms.

Highlighting the change in the treatment of persons appointed who

provide professional services, LFN 2007-28, issued on December 29,

2007, identified attorneys as typically falling within the

category of persons engaged pursuant to a professional services

contract and noted:

Individuals that perform professional
services under a professional service contract
with that local unit cannot be members of PERS
or DCRP; and

A professional who is an employee must be a
bona fide employee that meets the Internal
Revenue Service "employee test" in order to
be a member of PERS for those services.

[N.J. Dept. of Cmty. Affairs, Local Finance
Notice 2007-28 7-8 (Dec. 29, 2007), http://
www.state.nj.us/dca/divisions/dlgs/lfns.]

Also, LFN 2008-10, issued April 28, 2008, added: "[The statute]

restricts individuals receiving compensation under professional

9 A-0516-15T4
service resolutions from serving as employees and requires

application of an Internal Revenue Service test to ensure the

individual is a legitimate employee." N.J. Dept. of Cmty. Affairs,

Local Finance Notice 2008-10 1 (Apr. 28, 2008), http://

www.state.nj.us/dca/divisions/dlgs/lfns/08/2008-23.doc-180.5KB.3

In 2012, the Office of the New Jersey Comptroller issued an

investigative report, which found "an overwhelming majority" of

local units failed to remove independent contractors from PERS.

State of N.J. Office of the State Comptroller, Investigative

Report: Improper Participation by Professional Service Providers

in the State Pension System 8 (July 17, 2012), http://nj.gov/

comptroller/news/docs/pensions_report.pdf. The Report reiterated

the Chapter 92 mandate: "non-employee professional service

contractors be removed from PERS[,]" including those

"[p]rofessionals providing services pursuant to a professional

services contract . . . ." Id. at 3. This report prompted the

Division's examination of Platt's continued PERS participation and

the ensuing matter.

3
LFN 2008-10 notes a municipal prosecutor, pursuant to
N.J.S.A. 2B:25-1, who is "employed as bona fide legitimate employee
and not employed pursuant to a professional services resolution"
may qualify for Defined Contribution Retirement Program
participation. This is not an issue presented in this appeal.

10 A-0516-15T4
 III.

Platt's primary challenge on appeal is whether N.J.S.A.

43:15A-7.2, proscribes her participation in PERS. This question

requires statutory interpretation, which ultimately is a judicial

responsibility. We accord no deference to the Board's interpretive

conclusions. See Brick Twp. PBA Local 230 v. Twp. of Brick, 446

N.J. Super. 61, 65 (App. Div. 2016).

In interpreting a statute, we recognize our paramount goal

is to ascertain the Legislature's intent, and "generally[] the

best indicator of that intent is the statutory language."

DiProspero v. Penn, 183 N.J. 477, 492 (2005). "We ascribe to the

statutory words their ordinary meaning and significance . . . ."

IE Test, LLC v. Carroll, 226 N.J. 166, 182 (2016) (quoting

DiProspero, supra, 183 N.J. at 492). Only when the statutory

language is ambiguous and yields more than one plausible

interpretation do we turn to extrinsic sources. DiProspero, supra,

183 N.J. at 492-93.

On appeal, Platt reiterates her claim Chapter 92 is

unconstitutional as applied to her circumstances. Further, she

urges the Board erred in determining she was ineligible to

participate in PERS based on N.J.S.A. 43:15A-7.2, because the

circumstances here show she performed services for the identified

municipalities as an employee.

11 A-0516-15T4
 In reviewing an administrative agency's determination, we

give due deference to the agency's findings of fact and will not

reverse the agency's decision unless we conclude it was arbitrary,

capricious, or unreasonable. Prado v. State, 186 N.J. 413, 427

(2006). Platt, as the party challenging the administrative

decision, "has a heavy burden of . . . demonstrating that the

decision was arbitrary, unreasonable or capricious." In re Tax

Credit Application of Pennrose Props. Inc., 346 N.J. Super. 479,

486 (App. Div. 2002).

A.

Platt's constitutional challenge suggests the application of

Chapter 92 to her case "has the effect of detrimentally altering

her retirement benefit as an active member of PERS," violating

"the federal and state constitutional proscriptions against the

impairment of the obligation of contracts." She notes her

acceptance of municipal employment at a lower hourly rate than she

could have earned in private practice was because of the deferred

pension compensation benefit. Platt also suggests because she was

a vested member in PERS when Chapter 92 was enacted, she "had a

right to rely upon her yearly pension statements as well as the

certifying officer's decision in each municipality in which she

was employed" attesting to her PERS eligibility. We reject these

contentions.

12 A-0516-15T4
 The Contract Clause states: "No State shall . . . pass any

. . . Law impairing the Obligation of Contracts." U.S. Const.

art. I, § 10, cl. 1. Similarly, New Jersey's Constitution

guarantees: "The Legislature shall not pass any . . . law impairing

the obligation of contracts, or depriving a party of any remedy

for enforcing a contract which existed when the contract was made."

N.J. Const. art. IV, § 7, ¶ 3; see, e.g., Berg v. Christie, 225

N.J. 245, 258-59 (2016); Burgos v. State, 222 N.J. 175, 193 (2015),

cert. denied, __ U.S. __, 136 S. Ct. 1156, 194 L. Ed. 2d 174

(2016).

"Contract impairment claims brought under either

constitutional provision entail an analysis that first examines

whether a change in state law results in the substantial impairment

of a contractual relationship and, if so, then reviews whether the

impairment nevertheless is 'reasonable and necessary to serve an

important public purpose.'" Berg, supra, 225 N.J. at 259 (quoting

U.S. Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1, 25, 97 S. Ct.

1505, 1519, 52 L. Ed. 2d 92, 112 (1977)). The Court has advised

the analysis requires "three inquiries." Berg, supra, 225 N.J.

at 259. "Legislation unconstitutionally impairs a contract when

it (1) 'substantially impair[s] a contractual relationship,' (2)

'lack[s] a significant and legitimate public purpose,' and (3) is

'based upon unreasonable conditions and . . . unrelated to

13 A-0516-15T4
appropriate governmental objectives.'" Burgos, supra, 222 N.J.

at 193-94 (quoting Farmers Mut. Fire Ins. Co. of Salem v. N.J.

Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 546-47 (2013)

(alterations in original)).

Platt's argument requires a finding she had a contract to

continue employment with each municipality under the same terms

and conditions as existed prior to the adoption of Chapter 92,

which includes her continuation as a member of PERS. This argument

ignores the necessity all contracts for professional attorney

services are limited to one year. See N.J.S.A. 2B:25-4(b) ("A

municipal prosecutor . . . shall serve for a term of one year from

the date of his or her appointment . . . ."). Contractual terms

did not continue, as each year stands independently one from

another. Moreover, under the terms of Chapter 92, existing

contracts were unaffected during their unexpired term, N.J.S.A.

43:15A-7.2, then new contracts, commencing after the effective

date of Chapter 92, would be governed by Chapter 92.

Our Supreme Court has repeatedly recognized provisions of

public employee pensions, even when eligibility is not at issue,

do not constitute contractual relationships, unless explicitly

stated by statute. See Burgos, supra, 222 N.J. at 195; Spina v.

Consolidated Police & Firemen's Pension Fund Comm., 41 N.J. 391,

404-05 (1964); see also Nat'l R.R. Passenger Corp. v. Atchison,

14 A-0516-15T4
Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465-66, 105 S. Ct. 1441,

1451, 84 L. Ed. 2d 432, 446 (1985) (requiring courts adjudicating

Federal Contracts Clause claims not presume that a statute creates

private contract rights unless "some clear indication" establishes

the intent to do so). Indeed, Chapter 92 neither altered prior

PERS participation of credited service, nor did it impact a

contract in force when the new legislation was adopted. N.J.S.A.

43:15A-7.2. Therefore, we reject any notion suggesting the change

in state law, by adopting Chapter 92, resulted in a substantial

impairment of an existing contractual relationship.

We also underscore the change in PERS eligibility sought to

curb past abuses. The legislation was reasonable and necessary

to serve an important public purpose, and responded to "a series

of Executive and Legislative policy decisions – which the State

later characterized as short sighted - result[ing] in underfunding

of the [State] pension system." Berg, supra, 436 N.J. Super. at

236, rev'd on other grounds, 225 N.J. at 253. Importantly, our

jurisprudence concludes contractual impairment does not violate

the constitutional contract clause "if the governmental action has

a 'significant and legitimate public purpose,' is based upon

reasonable conditions, and is related to 'appropriate governmental

objectives.'" Borough of Seaside Park v. Comm. of N.J. Dep't of

Educ., 432 N.J. Super. 167, 216 (App. Div.), certif. denied, 216

15 A-0516-15T4
N.J. 367 (2013) (quoting State Farm Mut. Auto. Ins. Co. v. State,

124 N.J. 32, 64 (1991)); see also U.S. Tr. Co. of N.Y., supra, 431

U.S. at 25, 97 S. Ct. at 1519, 52 L. Ed. 2d at 112.

As to the impairment of Platt's expectation that she should

be permitted to continue participating in PERS because she was

vested in 2007 and "Chapter 92 has the effect of 'snatching' annual

compensation and service years from [her] ultimate retirement

benefit," we conclude the argument lacks sufficient merit to

warrant discussion in our opinion. R. 2:11-3(e)(1)(E).

Pension eligibility itself "is not to be liberally

permitted." Smith v. State, Dep't of Treasury, Div. of Pensions

& Benefits, 390 N.J. Super. 209, 213 (App. Div. 2007). "Instead,

in determining a person's eligibility to a pension, the applicable

guidelines must be carefully interpreted so as not to 'obscure or

override considerations of . . . a potential adverse impact on the

financial integrity of the [f]und.'" Ibid. (quoting Chaleff v.

Teachers' Pension & Annuity Fund Trs., 188 N.J. Super. 194, 197

(App. Div.), certif. denied, 94 N.J. 573 (1983) (alteration in

original)); see also Francois v. Bd. of Trs., 415 N.J. Super. 335,

350 (App. Div. 2010). Accordingly, we reject as specious Platt's

argument she negotiated PERS pension benefits as part of her

professional services contracts.

16 A-0516-15T4
 Based on our analysis, we conclude, as did the Board in

adopting the ALJ's initial decision modified after remand, Chapter

92 does not violate the Contracts Clause of the Federal

Constitution or the parallel guarantee included in the State

constitution. Platt's arguments to the contrary are rejected.

B.

Platt next argues her entitlement to continued PERS

eligibility was shown because her services as a part-time municipal

prosecutor were not performed pursuant to a disqualifying

professional services contract as required by N.J.S.A. 43:15A-

7.2(a). She concedes any individual providing professional

services pursuant to a "professional services contract" is not

eligible for PERS under N.J.S.A. 43:15A-7.2(a). Further she admits

her role as municipal prosecutor provided professional services

as defined in N.J.S.A. 40A:11-2(6).4 However, Platt disputes she

4
N.J.S.A. 40A:11-2(6) provides:

"Professional services" means services
rendered or performed by a person authorized
by law to practice a recognized profession,
whose practice is regulated by law, and the
performance of which services requires
knowledge of an advanced type in a field of
learning acquired by a prolonged formal course
of specialized instruction and study as
distinguished from general academic
instruction or apprenticeship and training.
Professional services may also mean services

17 A-0516-15T4
was appointed pursuant to a professional services contract.5

Rather, she claims she was a bona fide employee for each

municipality, as demonstrated by applying the "IRS 20 Factor Test

of Employment Status," thus defeating PERS exclusion in N.J.S.A.

43:15A-7.2(b). We are not persuaded.

Platt's contention that no municipal prosecutors could be

eligible for PERS participation and credit based upon the Board's

application of Chapter 92 is belied by the Board finding Platt's

employment with Berlin Township was qualifying. The

distinguishing factor is whether the professional services are

provided pursuant to a professional services contract in

accordance with N.J.S.A. 40A:11-5 of the LPCL.

We note, N.J.S.A. 43:15A-7.2(a) specifically references

N.J.S.A. 40A:11-5, which permits a municipality to negotiate and

award a contract for professional services in excess of the $17,500

bid threshold, see N.J.S.A. 40A:11-3(a), by resolution, without

public advertising for bids and bidding. In doing so,

rendered in the provision or performance of
goods or services that are original and
creative in character in a recognized field
of artistic endeavor.
5
Platt specifically asserts she never had a "professional
services contract" with Hi-Nella and Chesilhurst; did not have
such a contract with Winslow in 2013 and 2014; and signed explicit
employment agreements with Berlin in 2008 and 2009 and with Winslow
from 2009 through 2012.

18 A-0516-15T4
 [t]he governing body shall in each instance
state supporting reasons for its action in the
resolution awarding each contract and shall
forthwith cause to be printed once, in the
official newspaper, a brief notice stating the
nature, duration, service and amount of the
contract, and that the resolution and contract
are on file and available for public
inspection in the office of the clerk of the
county or municipality, or, in the case of a
contracting unit created by more than one
county or municipality, of the counties or
municipalities creating the contracting
unit[.]

[N.J.S.A. 40A:11-5(1)(a)(i).]

Judged against these standards, we conclude the factual

findings by the ALJ, adopted by the Board, demonstrate Platt's

appointment as municipal prosecutor met the definition of a

"professional services contract," under the LPCL. We briefly

address the evidence regarding Platt's services in the four

municipalities under review, which support this conclusion.

The documents regarding service in Winslow include contracts,

requests for proposal (RFP), proof of publication, the Township

Committee's resolutions specifically referencing the LPCL and

compliance with N.J.S.A. 19:44A-20.5, mandating a fair and open

process and prohibiting quid pro quo patronage or what is commonly

labeled "pay-to-play."

We reject the suggestion the municipality believed Platt was

its employee; we do not agree the title to an earlier contract,

19 A-0516-15T4
labeled "Employment Agreement" is controlling; nor is payment of

the annual contract salary through payroll dispositive. We look

past the form employed and examine the substance of the

arrangement. Chapter 92 makes clear labeling the engagement an

employment contract will not save an ineligible individual from

the preclusive effect of the statute. See N.J.S.A. 43:15A-7.2(a)

("No renewal, extension, modification, or other agreement or

action to continue any professional services contract in effect

on the effective date of [Chapter 92] beyond its current term

shall have the effect of continuing the membership of a person in

the retirement system or continuing the accrual of service credit

on the basis of performance of the contract.").

Here, the agreement's terms incorporate the RFP issued

pursuant to the LPCL. Further, Platt complied with the

requirements of the RFP by submitting required items such as proof

of licensing and insurance.

In Berlin Borough, provisions of the annual contracts

appointing Platt as municipal prosecutor referenced the LPCL and

stated the provision of attorney services were professional

services. Correspondence from the Borough Solicitor to Platt

identified the agreement as a professional services contract under

the LPCL, and stated it complied with an open and public process.

20 A-0516-15T4
 We also find unavailing Platt's argument that the absence of

a written "professional services contract" in Hi-Nella and

Chesilhurst defeats application of N.J.S.A. 43:15A-7.2(a). A

contract is defined in the LPCL as

any agreement, including but not limited to a
purchase order or a formal agreement, which
is a legally binding relationship enforceable
by law, between a vendor who agrees to provide
or perform goods or services and a contracting
unit which agrees to compensate a vendor, as
defined by and subject to the terms and
conditions of the agreement. A contract also
may include an arrangement whereby a vendor
compensates a contracting unit for the
vendor's right to perform a service, such as,
but not limited to, operating a concession.

[N.J.S.A. 40A:11-2(3)(21).]

Thus, the lack of a writing mentioned in N.J.S.A. 40A:11-5(1)(a)(i)

does not defeat the professional engagement from qualifying as a

professional services contract as used in Chapter 92. Cf. Kress

v. LaVilla, 335 N.J. Super. 400, 409-11 (App. Div. 2000) (enforcing

agreement under theory of "quasi-contract" to prevent unjust

enrichment where the requirements of N.J.S.A. 40A:11-5 were not

met), certif. denied, 168 N.J. 289 (2001).

Other documents from Hi-Nella, referenced in the ALJ's

findings, included municipal resolutions confirming Platt's

appointment, public notices reappointing Platt under a

"professional services contract," and correspondence she sent

21 A-0516-15T4
accepting reappointment. All of these reinforced Platt was

providing professional legal services under a professional

services contract.6

In seeking its municipal prosecutor, in some years,

Chesilhurst issued an RFP while in others the municipality

published a notice for solicitation of qualification for

professional services under a fair and open process, citing the

no bidding professional services provision of the LPCL, N.J.S.A.

40A:11-5. In recent years, the referenced appointee was "Donna

Sigel Platt, P.C." undercutting any suggestion Platt individually

was a municipal employee.

The record sufficiently shows Platt accepted these

appointments, awarded without bidding, and entered into contracts

to perform "professional services," under the authority of the

LPCL, N.J.S.A. 40A:11-5. A professional providing services

pursuant to a professional service contract is no longer eligible

for participation in PERS. N.J.S.A. 43:15A-7.2(a). We conclude

the Board did not err in rendering its determination.

Affirmed.

6
We note not all of these documents were included in the record
on appeal. We rely on the agency record referencing them.

22 A-0516-15T4