NOT FOR PUBLICATION WITHOUT THE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-2216-20
LAURA SHAW,
Plaintiff,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Defendant.
_________________________
Submitted December 6, 2021 – Decided December 14, 2021
Before Judges Fasciale and Vernoia.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of
Treasury, PERS Nos. x-xxxx353 and x-xxxx725.
Laura Shaw, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent, (Donna Arons, Assistant Attorney General,
of counsel; Christopher Meyer, Deputy Attorney
General, on the brief).
PER CURIAM
Laura Shaw appeals from a February 18, 2021 final agency decision by
the Board of Trustees (Board) of the Public Employees Retirement System
(PERS) denying her request to extend the expiration period on her Tier 1 PERS
account.1 The Board concluded that under N.J.S.A. 43:15A-7(e), Shaw's
membership in the retirement system ended because she did not commence
PERS-covered employment within two years of her last contribution, which
caused her PERS Tier 1 membership to expire.
The Division of Pension and Benefits (Division) can extend the two-year
expiration period, but the Board determined that the extension opportunity is not
automatic. Here, the Board found that Shaw obtained a PERS-covered position
after expiration of the two years, and therefore the Board concluded that she was
not entitled to the extension under N.J.S.A. 43:15A-8(a). It reached that
conclusion without a hearing in the Office of Administrative Law (OAL)
because it found the facts were undisputed.
On appeal, Shaw argues the decision is arbitrary because she was without
fault for the delay, and she was within a ten-year period referenced in N.J.S.A.
43:15A-8(a). Shaw urges us to vacate the decision and remand for a hearing in
the OAL.
1
Since her Tier 1 membership expired, Shaw enrolled as a Tier 5 member.
A-2216-20
2
Shaw did not leave her job, as the tax collector for the Borough of Seaside
Heights, voluntarily without good cause attributable to the work. Thus, she was
not disqualified for unemployment benefits under N.J.S.A. 43:21-5(a). In other
words, it was purportedly not her fault that she was separated from employment.
Applying the text of N.J.S.A. 43:15A-8(a), she contends, therefore, the Board's
decision was unreasonable. And she argues her work history, pension status,
and job search documentation demonstrate that her separation from employment
was not her fault in any way. She also asserts that she has put in substantial
time into the system, more than fifteen years.
Citing Lally,2 Cologna,3 and Del Pomo,4 the Board argues the N.J.S.A.
43:15A-8(a) exception permitting an extension is "discrete and limited." It
maintains that since Shaw resigned and was not involuntarily terminated due to
layoff or workforce reduction, she is not entitled to an extension under N.J.S.A.
43:15A-8(a). The Board argues Shaw's reference to N.J.S.A. 43:21-5(a) is
2
Lally v. Bd. of Trs., Pub. Emps.' Ret. Sys., 246 N.J. Super. 270 (App. Div.
1991).
3
Cologna v. Bd. of Trs., Police & Firemen's Ret. Sys., 430 N.J. Super. 362
(App. Div. 2013).
4
Del Pomo v. Bd. of Trs., Pub. Emps.' Ret. Sys., 252 N.J. Super. 430 (App.
Div. 1991).
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3
misplaced. And that here, under N.J.S.A. 43:15A-8(a), fault is irrelevant.
Instead, she must be "discontinued from service." And here, her employer did
not remove her, she was not laid off, and there was no workforce reduction. In
other words, the Board contends she left her job on her own, albeit for reasons
she explains were justified.
This court has recognized "'[j]udicial review of an administrative agency
action is limited' because respect is due to the 'expertise and superior knowledge'
of an agency in its specialized field." Francois v. Bd. of Trs., Pub. Emps.' Ret.
Sys., 415 N.J. Super. 335, 347 (App. Div. 2010) (internal quotations omitted)
(quoting Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223
(2009)). An appellate court will only reverse an agency's decision if it is
"arbitrary, capricious or unreasonable or it is not supported by substanti al
credible evidence in the record as a whole." Stevens v. Bd. of Trs., Pub. Emps.'
Ret. Sys., 294 N.J. Super. 643, 651 (App. Div. 1996) (quoting Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980)). The party challenging the
administrative action bears the burden of making that showing. Lavezzi v. State,
219 N.J. 163, 171 (2014).
It is undisputed that Shaw discontinued her PERS membership for more
than two years. When she resigned from her position with Seaside, the last
A-2216-20
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pension contributions for her Tier 1 account were made through March 31, 2017.
She returned to a PERS-covered position in July 2019, more than two years later.
Thus, under N.J.S.A. 43:15A-7(e), Shaw's Tier 1 account expired before she
returned to PERS-covered employment.
N.J.S.A. 43:15A-8(a) is a limited exception applicable where an employee
has been involuntarily terminated from service by an employer due to, for
example, a layoff or workforce reduction initiated by the employer. N.J.S.A.
43:15A-8(a) provides:
If a member of the retirement system has been
discontinued from service without personal fault or
through leave of absence granted by an employer or
permitted by any law of this State and has not
withdrawn the accumulated member's contributions
from the retirement system, the membership of that
member may continue, notwithstanding any provisions
of this act if the member returns to service within a
period of [ten] years from the date of discontinuance
from service.
We interpret the plain language of this text to mean discontinued by the
employer. In other words, the discontinuation by the employer of the employee
must be the requisite action, and it must be without the employee's personal
fault. If the employer—without personal fault of the employee—abolishes the
position, for example, then this statute permits continuation if the member
returns to service within ten years.
A-2216-20
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Here, the employer, Seaside, did not discontinue Shaw's position as a tax
collector. Shaw instead discontinued her position—she resigned—albeit for
reasons she explained were justified. N.J.S.A. 43:15A-8(a) is therefore
inapplicable because Shaw herself voluntarily resigned, and she was not
discontinued by the employer. She was not laid off, and her position was not
abolished. Thus, the Board cannot extend her Tier 1 membership.
Affirmed.
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6