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NOT FOR PUBLICATION WITHOUT THE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