SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-752-95T3
A-446-95T3
NORMAN STEVENS,
Petitioner-Respondent,
v.
BOARD OF TRUSTEES OF THE
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM,
Respondent-Respondent,
THE TOWNSHIP OF BRIDGEWATER,
Intervenor-Appellant.
Argued October 22, 1996 - Decided November
13, 1996
Before Judges Muir, Jr., Kleiner, and Coburn.
On appeal from a final decision of the Board
of Trustees of the Public Employees'
Retirement System.
William W. Lanigan argued the cause for
intervenor-appellant (Law Offices of William
W. Lanigan; Mr. Lanigan, on the brief).
Christine Roy, Deputy Attorney General,
argued the cause for respondent, Board of
Trustees of the Public Employees' Retirement
System (Peter Verniero, Attorney General,
attorney; Mary C. Jacobson, Assistant
Attorney General, of counsel; Ms. Roy, on the
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
We have consolidated two separate appeals from a decision of
the Board of Trustees of the Public Employees' Retirement System
(P.E.R.S.). The Board of Trustees rejected the recommended
decision of an administrative law judge (ALJ) and concluded that
petitioner Norman Stevens was not entitled to the retirement
pension benefits paid to him for the period between January 1,
1993, and January 31, 1994. The Board's conclusion also required
the Township of Bridgewater, an intervenor in the administrative
proceedings, to contribute to P.E.R.S. for the same period. The
ALJ had concluded that Stevens was an independent contractor
during that period and, as such, was not required to participate
in P.E.R.S. The ALJ's decision implicitly concluded that the
municipality had no duty to contribute to P.E.R.S. during the
period that Stevens provided services in his capacity as an
independent contractor. In reaching its decision to reject the
recommendation of the ALJ, the Board was required to interpret
and apply N.J.S.A. 43:15A-57.2 as it pertains to a former
employee who claims independent contractor status. We conclude
that the Board failed to perform its function by not articulating
precise findings of fact and then applying those facts to the
pertinent statute. Without specific fact-finding, it is
impossible to determine whether the Board's statutory
interpretation is reasonable. We reverse and remand to the
Board.
The facts in this matter are not in dispute nor were they disputed when presented to the ALJ. The interpretation of those facts, however, was substantially debated.
Stevens, who was born December 29, 1931, became the tax assessor for the Township of Bridgewater on September 1, 1974, and was immediately enrolled in P.E.R.S. Stevens retired from that position on July 1, 1992, and began to receive $1,654.43 per month as his retirement benefit. On July 2, 1992, Michael Hedden, MAI, was appointed as Bridgewater's new tax assessor.
Subsequently, Bridgewater concluded that Hedden needed assistance in performing the duties of tax assessor. Another employee in the tax assessor's office who had been expected to provide the necessary assistance was injured and was unavailable to help the new assessor. The Bridgewater Township Council adopted a resolution authorizing the mayor and township clerk to execute a "Professional Services' Agreement" with Stevens in accordance with N.J.S.A. 40A:11-5(1)(a)(i), to provide support services for the Tax Assessor's office. Pursuant to the resolution, Stevens and Bridgewater entered into a one-year professional services agreement on January 8, 1993. The term of the contract was from January 1, 1993, to December 31, 1993. Under the terms of the contract, Stevens would be paid $2,500 per month--$30,000 per year--and would "provide support services on an 'as needed' basis to the Township Assessor." The funds used to pay Stevens were not payable under the salary and wage
ordinance. Nor was Stevens' salary paid out of the salaries and
wages of the assessor's department. Stevens' salary was paid out
of Bridgewater's township budget as "contingent." The contract
clearly delineated that Stevens would receive no fringe benefits
from Bridgewater and that he would not maintain regular hours but
would provide services upon request of the tax assessor or other
Bridgewater officials. At the end of 1993, Stevens received an
Internal Revenue Form 1099 reflecting the fee paid to him under
the contract.
On November 24, 1993, Marcia Sudano, the president of the
Somerset County Assessors' Association, sent a letter to Nunzio
Masone, in the Overview and Scrutiny Department of the New Jersey
Division of Pensions and Benefits (Division), alerting the
Division that Stevens was both collecting a pension and working
in the Assessor's office in Bridgewater.
As a result of this letter, the Division conducted an
investigation and, on January 5, 1994, determined that:
Norman Stevens is retired from P.E.R.S.,
however, he is working for Bridgewater
Township as a support person [sic] the
Township Assessor at $30,000 per year. Prior
to his retirement, Norman Stevens was the
Township Assessor. Other than the fact he
was paid by voucher it would appear that he
is still an employee of Bridgewater Township.
The Board of Trustees of P.E.R.S. (Board) at its January 19,
1994, meeting decided that Stevens had to re-enroll in P.E.R.S.
effective January 1, 1993, the starting date of the personal
services contract. The minutes of the meeting reflect that:
The Board based its decision upon the
provisions of N.J.S.A. 43:15A-57.2 that
stipulates that a member, who is reemployed
in a permanent position in public employment
after retiring from P.E.R.S., cannot receive
a retirement benefit for the period of time
they are employed. Therefore, the Board
voted to cancel Mr. Stevens' retirement
benefit effective January 1, 1993, retirement
check dated February 1, 1993.
Stevens was notified of the Board's decision in a letter
dated January 27, 1994. The letter informed Stevens that his
retirement benefits were being canceled retroactively and that he
would have to reimburse P.E.R.S. for the benefits that he had
received. The letter also informed Stevens that he would have to
pay into the pension system for the year that he worked under the
personal services contract.
Stevens resigned January 31, 1994, and requested a hearing
before an ALJ to contest the Board's decision. On May 6, 1994,
the Division notified Stevens that he owed P.E.R.S. $23,162.02.
On September 28, 1994, the ALJ conducted a pre-hearing
conference and concluded that the burden of proof would be placed
on the Board as to the validity of the termination of Mr.
Stevens' pension. By rejecting in its entirety the
recommendation of the ALJ, it would appear that the Board also
rejected the pre-hearing decision which placed the burden of
proof on the Board. The terse decision of the Board, more fully
discussed hereafter, does not clearly indicate that the ALJ's
allocation of the burden of proof was deemed incorrect by the
Board.
On November 4, 1994, Bridgewater successfully filed a motion
to intervene, contending that, in the event that the Board's
position were sustained, it would be liable to P.E.R.S. for not
having made the proper deductions from Stevens' salary.
At the ensuing hearing before the ALJ, Stevens testified
that he worked in the assessor's office approximately eight hours
per week limiting his work time to four afternoons each week.
His mornings were devoted to developing a private consulting
business. Stevens indicated that, although he performed his
services within the assessor's office and occasionally used the
assessor's computer, he was not assigned his own desk. He also
indicated that he received "filing" assistance from other
employees within the assessor's office. Although he considered
Hedden to be his "boss," he indicated that he merely advised
Hedden with respect to appraisals and assessments and performed
various tasks in an effort to assist Hedden but did not perform
appraisal inspections nor did he participate in tax appeals.
Stevens' testimony was corroborated by Hedden.
The ALJ, on July 7, 1993, recommended that Stevens be
considered an independent contractor and that the Board reverse
its original decision. The ALJ, relying upon Smith v. E.T.L.
Enterprises,
155 N.J. Super. 343 (App. Div. 1978), noted that two
tests are used to distinguish "employees" from "independent
contractors," the "right to control test" and the "relative
nature of the work test," ibid., and concluded that Stevens was
an independent contractor.
In response to the ALJ's recommendation, the Deputy Attorney
General, who had represented the Board at the ALJ proceedings,
filed exceptions. Those exceptions incorporated by reference a
trial brief written by the Deputy Attorney General which had been
submitted to the ALJ. Specifically, the Deputy Attorney General
argued that, in applying the "right to control test," the ALJ
should consider the same factors used generally by the Internal
Revenue Service. The ALJ specifically rejected that argument and
concluded, in part:
First, as to control, he had the right and
the freedom to exercise control over his
consulting. It was his expertise that The
Township and Mr. Hedden sought, not the
reverse. Petitioner may have acquiesced to
set hours, but his contract specified mutual
agreement. Despite the State's contrary
argument, supervision was not a
consideration. Petitioner was there to
"guide" Mr. Hedden, who needed him to
understand the function of Township Assessor.
Petitioner undertook the support tasks for
which he contracted in his own time, and his
own way. His use of Township equipment was
de minimis.
On August 16, 1993, the Board formally rejected the ALJ's
recommendation that Stevens was an independent contractor and
reaffirmed its earlier determination that Stevens was an employee
of Bridgewater, effective January 1, 1993, and was thus liable
for re-payment of all pension benefits paid between January 1,
1993, and January 31, 1994. In its "FINDINGS OF FACT AND
CONCLUSIONS OF LAW," the Board stated:
Respondent Board accepts and incorporates
herein the factual and legal discussion of
the Deputy Attorney General in the enclosed
exceptions letter dated July 20, 1995, and to
the extent that this discussion is in
conflict with that of the ALJ in the initial
decision, rejects the factual and legal
discussion set forth in the Initial Decision.
N.J.S.A. 43:15A-57.2 provides:
If a former member of the State Employees' Retirement System or the retirement system, who has been granted a retirement allowance for any cause other than disability, becomes employed again in a position which makes him eligible to be a member of the retirement system, his retirement allowance and the right to any death benefit as a result of his former membership, shall be canceled until he again retires.
Such person shall be re-enrolled in the retirement system and shall contribute thereto at a rate based on his age at the time of re-enrollment. Such person shall be treated as an active member for determining disability or death benefits while in service and no benefits pursuant to an optional selection with respect to his former membership shall be paid if his death shall occur during the period of such re-enrollment.
Upon subsequent retirement of such member, his former retirement allowance shall be reinstated together with any optional selection, based on his former membership. In addition, he shall receive an additional retirement allowance based on his subsequent service as a member computed in accordance with applicable provisions of [N.J.S.A. 43:15A-1 et seq.]; provided, however, that his total retirement allowance upon such subsequent retirement shall not be a greater proportion of his final compensation than the proportion to which he would have been entitled had he remained in service during the period of his prior retirement. Any death benefit to which such member shall be eligible shall be based on his latest retirement, but shall not be less than the
death benefit that was applicable to his
former retirement.
[N.J.S.A. 43:15A-57.2 (emphasis added).]
As a general rule, when an administrative agency makes a
finding of fact, we will not disturb that decision unless the
finding is not supported by substantial credible evidence. Gerba
v. Board of Trustees,
83 N.J. 174, 189 (1980); Henry v. Rahway
State Prison,
81 N.J. 571, 579-80 (1980); Atkinson v. Division of
Motor Vehicles,
37 N.J. 143, 149 (1962). As noted by the Supreme
Court in Henry, "an appellate court will reverse the decision of
the administrative agency only if it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry, supra, 81 N.J. at
579-80 (emphasis added). While this is a high standard of
review, it does not render the appellate process meaningless:
[I]f the appellate tribunal is thoroughly
satisfied that the finding is clearly a
mistaken one and so plainly unwarranted that
the interests of justice demand intervention
and correction then, and only then, it should
appraise the record as if it were deciding
the matter at inception and make its own
findings and conclusions.
[State v. Johnson,
42 N.J. 146, 162 (1964)
(citations omitted).]
Generally, where a Board's decision is predicated on its
interpretation of a statute, our deference to the Board is
not as compelling. See Mayflower Sec. v. Bureau of Sec.,
64 N.J. 85, 93 (1973). We will, however, give great deference to an
administrative agency which is interpreting the very statute that
the agency was created to enforce. Merin v. Maglaki, 126 N.J.
430, 436-37 (1992) ("[w]e give substantial deference to the
interpretation of the agency charged with enforcing an act. The
agency's interpretation will prevail provided it is not plainly
unreasonable"); Metromedia, Inc. v. Director, Division of
Taxation,
97 N.J. 313, 327 (1984) ("the agency's interpretation
of the operative law is entitled to prevail, so long as it is not
plainly unreasonable"). Accordingly, in this case, we recognize
that the Board is charged with the general responsibility for the
operation of P.E.R.S., and its administrative interpretation of
N.J.S.A. 43:15A-57.2 is entitled to great weight. See
Metromedia, supra, 97 N.J. at 327. Here, if the Board had made
its own independent findings of fact and conclusions of law, to
reverse that decision we would have had to conclude that the
Board's interpretation of N.J.S.A. 43:15A-57.2 was plainly
unreasonable. Because the Board failed to articulate any
findings of fact whatsoever and failed to apply those facts, as
found, to the pertinent statute, we are compelled to reverse.
In an effort to convince the ALJ that Stevens, although denominated an "independent contractor," was in reality an "employee," the Deputy Attorney General representing the Board urged the ALJ to consider those factors utilized by the Internal Revenue Service with particular emphasis on Revenue Ruling 87-41, 1987- 1 C.B. 296. The Internal Revenue Service utilizes a 20-factor test to determine whether sufficient control is present to establish an employer-employee relationship.See footnote 1
The ALJ rejected that argument concluding that to consider those factors would violate provisions in the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-3 to -7, as it would endorse a standard without publication of notice and adoption in the New Jersey Register and would impose upon Stevens a standard unknown to him prior to his retirement.
We need not determine if the ALJ correctly rejected the argument of the Deputy Attorney General. Our sole responsibility is to evaluate whether the Board reasonably interpreted N.J.S.A. 43:15A-57.2. Our appellate function, however, is frustrated by the absence of specific findings of fact by the Board and the absence of specific conclusions of law. As noted, the only findings of the Board are encompassed in one paragraph:
Respondent Board accepts and incorporates herein the factual and legal discussion of the Deputy Attorney General in the enclosed exceptions letter dated July 20, 1995, and to the extent that this discussion is in conflict with that of the ALJ in the initial decision, rejects the factual and
legal discussion set forth in the Initial
Decision.
As we read the Board's terse decision, it has adopted all of
the "findings of fact" and "conclusions of law" that were argued
by its own counsel and has rejected any conflicting conclusion of
the ALJ. The Board thus places the onus on this court to
scrutinize each element in the Deputy Attorney General's
exception letter (and, as incorporated by reference, the Deputy
Attorney General's brief) and to explain why each exception is a
valid critique of the ALJ's analysis. We refuse to accept that
responsibility.
Under the Administrative Procedures Act, N.J.S.A. 52:14B, a
final decision adverse to a party must meet certain criteria.
Specifically:
A final decision or order adverse to a
party in a contested case shall be in writing
or stated in the record. A final decision
shall include findings of fact and
conclusions of law, separately stated and
shall be based only upon the evidence of
record at the hearing, as such evidence may
be established by rules of evidence and
procedure promulgated by the director.
Findings of fact, if set forth in
statutory language, shall be accompanied by a
concise and explicit statement of the
underlying facts supporting the findings.
The final decision may incorporate by
reference any or all of the recommendations
of the administrative law judge. Parties
shall be notified either personally or by
mail of any decision or order. Upon request
a copy of the decision or order shall be
delivered or mailed forthwith by registered
or certified mail to each party and to his
attorney of record.
[N.J.S.A. 52:14B-10(d).]
While it is in the discretion of the agency to incorporate "by
reference any or all of the recommendations of the administrative
law judge," ibid., the agency is not statutorily invested with
authority to adopt the findings of fact and conclusions of law of
the Deputy Attorney General who presented the case as an advocate
on behalf of the Board.
We find it interesting that Smith v. E.T.L. Enterprises,
155 N.J. Super. 343 (App. Div. 1978), which was cited by the ALJ as
dispositive of the distinctions between employee and independent
contractor in cases before the Division of Workers' Compensation,
was also a decision which reversed the judge of compensation for
inadequate findings of fact and conclusions of law. Id. at 348.
In reversing and remanding for further findings we noted:
In Application of Howard Savings of
Newark,
32 N.J. 29 (1960), the Supreme Court
said:
It is axiomatic in this State
by this time that an administrative
agency acting quasi-judicially must
set forth basic findings of fact,
supported by the evidence and
supporting the ultimate conclusions
and final determinations, for the
salutary purpose of informing the
interested parties and any
reviewing tribunal of the basis on
which the final decision was
reached so that it may be readily
determined whether the result is
sufficiently and soundly grounded
or derives from arbitrary,
capricious or extra-legal
considerations.
[Smith, supra, 155 N.J. Super. at 348.]
In DiMaria v. Board of Trustees of P.E.R.S.,
225 N.J. Super. 341 (App. Div.), certif. denied,
113 N.J. 638 (1988), we stated
that "[w]hen an administrative agency's decision is not
accompanied by the requisite findings of fact and conclusions of
law, the usual remedy is to remand the matter to the agency to
correct this deficiency." Id. at 347 (citing Perez v. Pantasote,
Inc.,
95 N.J. 105, 118-20 (1984); Kotlarich v. Ramsey,
51 N.J.
Super. 520, 543 (App. Div. 1958)). We find that the Board's
adoption of the Deputy Attorney General's letter of exceptions,
which itself adopts the adversarial brief submitted by the same
Deputy Attorney General to the ALJ, does not constitute adequate
and independent findings of fact and conclusions of law.
We accordingly reverse the Board's decision and remand for
further findings of fact and conclusions of law. We do not
retain jurisdiction.
Footnote: 1 The "control" factors include: (1) instructions; (2) training; (3) integration; (4) services rendered personally; (5) hiring, supervising, and paying assistants; (6) continuing relationship; (7) set hours of work; (8) full time required; (9) doing work on employer's premises; (10) order or sequence set; (11) oral or written reports; (12) payment by hour, week, month; (13) payment of business and/or traveling expenses; (14) furnishing of tools and materials; (15) significant investment; (16) realization of profit or loss; (17) working for more than one firm at a time; (18) making service available to general public; (19) right to discharge; (20) right to terminate. Id. at 87:78 to 87:80.