                                NOT FOR PUBLICATION WITHOUT THE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 post ed 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-2685-16T2

THOMAS LANZA,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_____________________________

                    Submitted January 14, 2019 – Decided March 5, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of
                    Treasury, PERS No. 2-955720.

                    Lanza Law Firm, LLP, attorneys for appellant (Kenneth
                    W. Thomas, on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Jeff S. Ignatowitz, Deputy
                    Attorney General, on the brief).
PER CURIAM

      Thomas Lanza appeals from the February 16, 2017 final agency decision

of the Board of Trustees (Board) of the Public Employees' Retirement System

(PERS), adopting the initial decision of the administrative law judge (ALJ). The

ALJ affirmed the Board's determination that Lanza was ineligible for

membership in PERS, effective January 1, 2008, following the adoption of

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

      N.J.S.A. 43:15A-7.2(a) prohibits membership in PERS as of January 1,

2008, for individuals engaged by a municipality under a professional services

contract awarded in accordance with the Local Public Contracts Law (LPCL),

N.J.S.A. 40A:11-1 to -52. N.J.S.A. 43:15A-7.2(b) imposes the same prohibition

on independent contractors performing professional services for a municipality.

The Board adopted the ALJ's decision that, in accordance with N.J.S.A. 43:15A-

7.2(a) and (b), Lanza was ineligible for membership in PERS for his service as

a municipal prosecutor in the Borough of South Plainfield and the Township of

Piscataway after December 31, 2007. We affirm.

      Lanza is an attorney who was admitted to the New Jersey bar in 1988. He

has been in private practice for over twenty-five years and is a partner in the law

firm, Lanza & Lanza, LLP. Lanza first enrolled in PERS on January 1, 1994,


                                                                           A-2685-16T2
                                        2
when he was appointed as the municipal prosecutor for South Plainfield, and has

served continuously since. Lanza also served as the municipal prosecutor in

Piscataway continuously since January 1, 2008,1 and continued PERS

participation based on these appointments.

      In 2012, the New Jersey Office of the State Comptroller released a report 2

identifying numerous local government entities that failed to comply with

N.J.S.A. 43:15A-7.2's prohibition against pension participation by individuals

serving in certain government positions pursuant to professional service

contracts or as independent contractors. As a result, the Division of Pensions

and Benefits (Division), Pension Fraud and Abuse Unit (Unit) commenced an

investigation.   Based upon information received from South Plainfield and

Piscataway, on December 29, 2014, the Unit notified Lanza that the Division

determined that he was ineligible for continued participation in PERS after

December 31, 2007.




1
  Lanza also served as the municipal prosecutor for the Borough of Dunellen
and the City of South Amboy. Neither of those appointments is part of this
appeal.
2
  State of N.J. Office of the State Comptroller, Investigative Report: Improper
Participation by Professional Service Providers in the State Pension System
(2012), http://nj.gov/comptroller/news/docs/pensions_report.pdf.
                                                                         A-2685-16T2
                                       3
      Lanza appealed the determination to the Board and on May 26, 2015, the

Board agreed and advised Lanza that "[t]here [were] no 'grandfathering'

provisions under [N.J.S.A.] 43:15A-7.2 to permit individuals who were already

enrolled in . . . PERS to remain as members after January 1, 2008." Lanza again

appealed, and the matter was transmitted to the Office of Administrative Law

(OAL) for review as a contested case. See N.J.S.A. 52:14F-1 (establishing the

OAL for independent review of contested administrative matters); see also

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

      During the ensuing OAL hearing, conducted on March 30, 2016, Lanza

testified on his own behalf, and Marc Seth Greenfield, the Unit investigator who

authored the December 29, 2014 letter notifying Lanza of his ineligibility,

testified on behalf of the Division. Following the hearing, on December 1, 2016,

the ALJ issued an initial decision, affirming the Board's determination. First,

the ALJ determined it was "incontrovertible" that Lanza "served as the

municipal prosecutor in South Plainfield since 1994[,]" when "[h]e initially

enrolled in PERS," and "in Piscataway . . . since 2008." Further, Lanza's "duties

include[d] prosecuting criminal matters, zoning complaints, and health

department complaints[,]" and he was "responsible for representing the

[respective] municipalit[ies] in all phases of the criminal process, to include


                                                                         A-2685-16T2
                                       4
discovery, motions, and other pre-trial proceedings." Additionally, Lanza was

provided by the municipality with "tools and equipment[,]" including "an

office," "a desk," "a computer, " "a phone," and "office supplies." Further, "with

the exception of State Police discovery, . . . which [was] mailed by his law office

staff[,]" municipal employees "organize[d] and process[ed] discovery for

pending prosecutions, using municipal letterhead and envelopes."

      The ALJ then posited that "[t]he issue to be decided . . . [was] whether

Lanza's service as a municipal prosecutor in both South Plainfield and

Piscataway qualifie[d] him for continued membership in PERS . . . under either

[N.J.S.A.] 43:15A-7.2(a) or (b)."           Regarding N.J.S.A. 43:15A-7.2(a)'s

ineligibility for individuals engaged by a municipality under a professional

services contract awarded in accordance with the LPCL, as to South Plainfield,

the ALJ found "that each year since 2008, South Plainfield issued a public notice

soliciting proposals for professional services. Starting in 2012, the notices

stated that the services sought, including those of a municipal prosecutor, were

not subject to bidding, per [N.J.S.A.] 40A:11-5." In response, "Lanza submitted

comprehensive packets of information annually," indicating "that his law firm

'staff [was] very equipped and knowledgeable in dealing with the processing of

state's discovery[,] utilizing the internet, scanning of documents[,] and [their]


                                                                           A-2685-16T2
                                        5
office just down the street [was] very convenient to meet officers to discuss

cases.'"

      According to the ALJ, as a result of Lanza's submissions, "from 2008 until

the present, and pursuant to [N.J.S.A.] 2B:25-4,[3] Lanza was appointed annually

via a formal resolution" generally stating:

            Now therefore be it resolved by the Governing Body of
            the Borough of South Plainfield as follows:

            1.    The Mayor and Municipal Clerk are hereby
            authorized to execute agreements with . . . Thomas
            Lanza, Esq.[]

            2.     This contract is awarded pursuant to a fair and
            open process in accordance with [N.J.S.A.] 19:44A-
            20.4 . . . [.]

            3.    Salary for this position is commensurate with the
            current salary ordinance . . . and health benefit coverage
            will not be provided as part of the compensation
            package for the position of Municipal Prosecutor.

            4.    A copy of this resolution shall be published in
            The Observer as required by law within ten days of its
            passage.

3
   As pertinent here, N.J.S.A. 2B:25-4 provides for the appointment of a
municipal prosecutor "by the governing body of the municipality," N.J.S.A.
2B:25-4(a), who "shall be an attorney-at-law of this State in good standing, . . .
shall serve for a term of one year from the date of his or her appointment,"
N.J.S.A. 2B:25-4(b), and "shall be compensated either on an hourly, per diem,
annual or other basis as the . . . municipality . . . provide[s]." N.J.S.A. 2B:25 -
4(d). Further, "[a] municipal prosecutor may be appointed to that position in
one or more municipal courts." N.J.S.A. 2B:25-4(b).
                                                                           A-2685-16T2
                                        6
      Similarly, the ALJ found that in Piscataway, Lanza "applied for the

position" of municipal prosecutor "by submitting a packet of information" in

response "to a request for proposals." Thereafter, Lanza was "designated as the

prosecutor annually by the Township Law Director, . . . approved by the

governing body[,]" and "appointed . . . via a resolution which confirmed his

appointment."   According to the ALJ, unlike South Plainfield where "the

agreement[s] referenced in the[] resolutions [were] never formally executed by

the parties[,]" in Piscataway, "[Lanza] executed a contract with the Township"

in "2008" and "2009." 4

      Turning to N.J.S.A. 43:15A-7.2(b)'s ineligibility for independent

contractors performing professional services for a municipality, based on

Greenfield's testimony, the ALJ found "[t]he Division [made] its determination

regarding independent contractor status utilizing the '[Internal Revenue

Service's (IRS)] 20-Factor Test[.]'" According to the ALJ, that test "analyzes

three aspects of the employment relationship, to include 'Behavioral Control,'

'Financial Control,' and the 'Relationship of the Parties.'" The ALJ recounted

that Greenfield's determination "that Lanza was not an employee, but rather, an



4
  The ALJ noted that the record did not include contracts or resolutions for the
succeeding years.
                                                                        A-2685-16T2
                                       7
independent contractor both in South Plainfield and in Piscataway[,]" was based

on Greenfield's review of documents supplied by the respective municipalities,

including an IRS checklist questionnaire completed by the respective certifying

officers. In that regard, Greenfield rejected the assessment of Glenn Cullen,

South Plainfield's Chief Financial Officer, that Lanza was an employee of the

municipality, and agreed with the assessment of Maria Perez, Piscataway's

Assistant Treasurer, that Lanza was working under a professional services

contract and was an independent contractor.

      In sum, the ALJ credited Greenfield's analysis of the IRS 20-Factor Test

as applied to all three aspects of the employment relationship and as

corroborated in part by Lanza's own testimony and the documentary evidence.

Regarding "Behavioral Control," the ALJ determined the municipality did "not

'have the right to control, supervise[,] or direct' Lanza's work efforts." The ALJ

found "Lanza was not hired by an administrator," but rather "was appointed by

the governing body[,]" which "ratifie[d] [his appointment] via resolution."

Further, although Lanza used "his office staff to assist with [mailing] State

Police discovery[,]" Lanza "was hired to perform his prosecutorial duties

himself, but could obtain appropriate coverage in the event of an emergency" as

"Lanza indicated that municipal prosecutors often help each other out by


                                                                          A-2685-16T2
                                        8
swapping sessions." Additionally, although the municipality "direct[ed] his

hours insofar as they were tied to the court calendar[,]" municipal employees

"[did] not evaluate his work or otherwise give him instructions or directions in

terms of how to perform that work" or "account for [his] attendance," and Lanza

"prepare[d] no formal reports . . . relative to his duties."      Instead, while

"overseen by the County Prosecutor," "a municipal prosecutor must have

autonomy" and "as Lanza himself stated, he [was] obliged to perform his role

with 'discretion, honed by experience, charted by the law[,] and tempered by

ethics.'"

      Regarding "Financial Control," the ALJ found that Lanza "[was] paid via

payroll and receive[d] a W-2[,]" with "state, federal[,] and employee benefit

deductions . . . taken from his paycheck[.]" "[H]is salary [was] established by

ordinance[,]" and he received "no reimbursement for expenses" and "no fringe

benefits[.]" Regarding the "Relationship of the Parties," the ALJ found that

"Lanza [was] reappointed annually[,]" "[was] not covered by a union

contract[,]" "[was] not associated with another entity that provide[d] services to




                                                                          A-2685-16T2
                                        9
the [municipality] via an agreement[,]" and "perform[ed] prosecutorial services

for other municipalities." 5

        Turning to the legal analysis, the ALJ detailed N.J.S.A. 43:15A-7.2,6

explaining that it was enacted in May 2007 to change the pension eligibility


5
 The ALJ also noted that based on the appointing resolution, "[a]rguably neither
party could terminate the arrangement at will."
6
    N.J.S.A. 43:15A-7.2 specifically provides 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 section [N.J.S.A. 40A:11-5] . . . , on the basis of
              performance of the contract, shall not be eligible for
              membership in [PERS]. . . . No renewal, extension,
              modification, or other agreement or action to continue
              any professional services contract in effect on [January
              1, 2008,] 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 [PERS], if the
              person meets the definition of independent contractor
              as set forth in regulation or policy of the [IRS] for the
              purposes of the Internal Revenue Code. . . .

              . . . No renewal, extension, modification, or other
              agreement or action to continue any such agreement or


                                                                          A-2685-16T2
                                        10
rules and limit participation in PERS in the aftermath of the issuance of the final

report and recommendations of the New Jersey Benefits Review Task Force,

created by then Acting Governor Richard Codey, which concluded that:

            [T]he rules that allow the politically well-connected to
            game the system for their own benefit must be changed.
            The pension system exists to serve public employees
            who dedicate their careers to government and the
            eligibility rule must ensure that only they can
            participate.   When non-deserving individuals are
            allowed to essentially freeload off the system, everyone
            loses. The bottom line is the system must be returned
            to those for whom it was designed.

      The Task Force elaborated further:

            Since the principal purpose of any public retirement
            plan is to provide adequate retirement benefits, such
            coverage should only be extended to "true" public
            employees.




            contract in effect on [January 1, 2008,] 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 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(6)].

See also N.J.A.C. 17:2-2.3(a)(14) and (15) (codifying these ineligibility
standards).


                                                                           A-2685-16T2
                                       11
             a) Professional services vendors, such as municipal
             attorneys, tax assessors, etc., 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.

             In addition to preserving the integrity of the pension
             funds for those who had dedicated their lives to public
             service, this change will also serve as a disincentive to
             "tacking."[7]

      "[M]indful of the intent behind the enactment of [N.J.S.A. 43:15A-7.2],"

the ALJ concluded that Lanza "failed to meet his burden" of proving "by a

preponderance of the credible evidence" that "he [was] eligible for pension

credit after January 1, 2008, for his service as municipal prosecutor" either in

South Plainfield or Piscataway. See Charatan v. Bd. of Review, 200 N.J. Super.

74, 78 (App. Div. 1985) (noting that typically, a party claiming to be eligible for

a benefit must establish that he meets the qualifying criteria); see also Francois

v. Bd. of Trs., Pub. Emps.' Ret. Sys., 415 N.J. Super. 335, 350 (App. Div. 2010)

("[W]hile a person 'eligible for benefits' is entitled to a liberal interpretation of

the pension statute, 'eligibility [itself] is not to be liberally permitted.'" (second



7
   See N.J. Benefits Review Task Force, Report of the Benefit Review Task
Force    to   Acting     Governor      Richard     J.   Codey 18   (2005),
http://www.state.nj.us/benefitsreview/final_report.pdf.
                                                                              A-2685-16T2
                                        12
alteration in original) (quoting Krayniak v. Bd. of Trs., Pub. Emps.' Ret. Sys.,

412 N.J. Super. 232, 242 (App. Div. 2010))).

      Specifically, the ALJ determined Lanza was "ineligible both because he

was retained pursuant to a professional services agreement, and because he

[was] an independent contractor as that term [was] defined by law." Regarding

the professional services agreement, according to the ALJ, "[t]he services

provided by Lanza were incontrovertibly 'professional' in nature" as "[h]e was

retained as a municipal prosecutor to utilize his skills and training as an attorney-

at-law, and the work he performed . . . assuredly fell under the LPCL['s]

definition of 'professional services.'"      See N.J.S.A. 40A:11-2(6) (defining

"[p]rofessional services" as "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"). Moreover, "[h]e performed those

services for a political subdivision of the State, and his appointment was not

subject to formal public bidding precisely because it fell under the exception for

professional services." See N.J.S.A. 40A:11-5(1)(a)(i) (exempting any contract


                                                                             A-2685-16T2
                                        13
for "[p]rofessional services" from public bidding and requiring such contracts

to "be awarded by resolution of the governing body").

      According to the ALJ, "the fact that Lanza and South Plainfield ultimately

failed to execute the formal written agreement[s]" referenced in the resolutions

did not "detract from the conclusion that he was employed pursuant to a

professional services contract" because "[t]he resolution itself constitute[d] a

binding agreement between the parties; specifying the term, salary, benefits[,]

and responsibilities of the position." See McCurrie v. Town of Kearny, 344 N.J.

Super. 470, 480 (App. Div. 2001), rev'd on other grounds, 174 N.J. 523 (2002)

("[I]n the absence of statutory language to the contrary, a local government may

enter into a contract by the passage of a resolution."). Thus, the ALJ found that

since the resolutions were "passed publicly," and "committed to writing," they

met "the spirit and intent of [N.J.S.A.] 40A:11-14," requiring that "[a]ll

contracts for . . . goods or services shall be in writing[,]" but leaving to "[t]he

governing body" to "prescribe the form and manner in which contracts shall be

made and executed[.]"

      Turning to Lanza's status as an independent contractor, the ALJ explained:

            The determination whether an individual is an
            employee or an independent contractor is highly fact
            sensitive, and requires a careful scrutiny of an
            individual's employment status. Our courts have

                                                                           A-2685-16T2
                                       14
            confirmed the propriety of utilizing the [IRS] [t]est, as
            the Board did here. Hemsey v. Bd. of Trs., Police and
            Firemen's Ret. Sys., 393 [N.J. Super.] 524, 542 (App.
            Div. 2000)[, rev'd on other grounds, 198 N.J. 215
            (2009)]. No single factor outlined in the checklists
            completed by the municipal authorities is dispositive,
            and I am required to analyze the totality of the
            circumstances with the factors as a guide. See [Rev.
            Rul.] 87-41, 1987-1[ ]C.B. 296.[8] Indeed, some of the
            areas of inquiry are easily manipulated by the parties;
            financial control is a case in point. Parties desirous of
            establishing an employee relationship can readily make
            payment via a W-2, with all the usual deductions. For
            this reason, although Lanza surely is compensated as an
            employee, this is the area of inquiry that I can give the
            least amount of weight.

                    The ultimate determination to be made is whether
            the employer "controls" the worker, which the ruling
            clarifies, is "not only as to what shall be done but as to
            how it shall be done." . . . . The degree of importance
            of each factor varies depending on the occupation and
            the factual context in which the services are performed
            . . . . The ruling notes that individuals who follow an
            independent trade, business, or profession, in which
            they offer their services to the public, generally are not
            employees. Lawyers are listed as an example.


8
     The IRS twenty-factor test requires consideration of the following:
instructions; training; integration; services rendered personally; hiring,
supervising, and paying assistants; continuing relationship; set hours of work;
full-time required; doing work on employer's premises; order or sequence set;
oral or written reports; payment by hour, week, month; payment of business
and/or traveling expenses; furnishing of tools and materials; significant
investment; realization of profit or loss; working for more than one firm at a
time; making service available to general public; right to discharge; and right to
terminate. Rev. Rul. 87-41, 1987-1 C.B. at 298-99.
                                                                          A-2685-16T2
                                       15
                  Lanza is appointed annually to provide municipal
            prosecutor services . . . . He submits a response to a
            Request for Proposals annually. He is appointed by the
            public body itself. Lanza must obviously be present
            when court is in session, but no one . . . otherwise
            controls his comings and goings. No one formally
            evaluates him, or tells him how to execute his job
            substantively. He provides his services . . . on behalf
            of the public at large . . . . Lanza provides the same
            services to other municipalities. These factors, in my
            mind, well outweigh the fact that [the municipality]
            supplies Lanza with a desk, phone, and computer.

The Board adopted the ALJ's decision and this appeal followed.

      On appeal, Lanza argues the Board "failed to meet its burden of proving

[he was] not entitled to his pension." Lanza renews his contention that he

"should be deemed an[] employee, not an independent contractor[,]" as defined

under N.J.S.A. 43:15A-7.2(b), and asserts that in the absence of "any formal

written agreement" between himself and South Plainfield since 1994, he does

not fall under N.J.S.A. 43:15A-7.2(a)'s requirement for a professional services

contract. He contends "a decision denying [him] his pension benefits lacks a

basis in law and fact," warranting reversal of the ALJ's decision. We disagree.

      "We are mindful of the deference afforded an administrative agency and

our limited role in reviewing its decisions, intervening only in rare

circumstances where the agency action is arbitrary, capricious, unreasonable or

not supported by the evidence in the record." Fairweather v. Pub. Emps.' Ret.

                                                                        A-2685-16T2
                                     16
Sys., 373 N.J. Super. 288, 294 (App. Div. 2004). In determining whether agency

action is arbitrary, capricious, or unreasonable, our role is restricted to three

inquiries:

             (1) whether the agency action violates the enabling act's
             express or implied legislative policies; (2) whether
             there is substantial evidence in the record to support the
             findings upon which the agency based application of
             legislative policies; and (3) whether, in applying the
             legislative policies to the facts, the agency clearly erred
             by reaching a conclusion that could not reasonably have
             been made upon a showing of the relevant factors.

             [R.S. v. Div. of Med. Assistance & Health Servs., 434
             N.J. Super. 250, 261 (App. Div. 2014) (quoting H.K. v.
             Div. of Med. Assistance & Health Servs., 379 N.J.
             Super. 321, 327 (App. Div. 2005)).]

Given the "strong presumption that an agency decision is valid[,]" the party

"challenging that 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]lthough we respect the agency's expertise, ultimately, interpretation

of statutes is a judicial, not an administrative, function[,] and we are in no way

bound by the agency's interpretation." Fairweather, 373 N.J. Super. at 295.

Thus, "[l]ike all matters of law, we apply de novo review to an agency's

interpretation of a statute." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,


                                                                           A-2685-16T2
                                        17
206 N.J. 14, 27 (2011). To that end, we recognize that "when interpreting a

statute," our paramount goal is to ascertain the Legislature's intent, and

"generally, the best indicator of that intent" are "the statutory words," to which

"[w]e ascribe . . . their ordinary meaning and significance[.]" DiProspero v.

Penn, 183 N.J. 477, 492 (2005). We are also aware, however, that in enacting

N.J.S.A. 43:15A-7.2 to exclude professional service contractors from

membership in PERS, the Legislature sought to curb past abuses, and respond

to the Task Force's recommendations to "preserv[e] the integrity of the pension

funds for those who have dedicated their lives to public service[.]" N.J. Benefits

Review Task Force, Report of the Benefit Review Task Force to Acting

Governor Richard J. Codey, at 18. See Joint Legislative Committee, Public

Employee       Benefits       Reform:        Final     Report       83      (2006),

http://www.njleg.state.nj.us/PropertyTaxSession/OPI/jcpe_final_report.pdf.

      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. (alterations in original) (quoting Chaleff v. Bd.


                                                                            A-2685-16T2
                                        18
of Trs., Teachers' Pension & Annuity Fund, 188 N.J. Super. 194, 197 (App. Div.

1983)). "An inappropriate allowance of benefits tends 'to place a greater strain

on the financial integrity of the fund in question and its future availability for

those persons who are truly eligible for such benefits.'" Francois, 415 N.J.

Super. at 350 (quoting Smith, 390 N.J. Super. at 215). Moreover, contrary to

Lanza's contention, the burden to establish pension eligibility is properly

allocated to the applicant, not the Board. See Patterson v. Bd. of Trs., State

Police Ret. Sys., 194 N.J. 29, 50-51 (2008) (imposing burden on applicant to

prove eligibility for disability retirement benefits).

      Judged against these standards, we are satisfied that the factual findings

by the ALJ are supported by the record, and we agree with the ALJ's legal

conclusions, as adopted by the Board, demonstrating that Lanza's appointment

as municipal prosecutor met the definition of a "professional services contract,"

under the LPCL as prescribed by N.J.S.A. 43:15A-7.2(a). Further, Lanza met

the definition of independent contractor under the twenty-factor IRS test

expressly adopted by N.J.S.A. 43:15A-7.2(b).             "[I]f substantial evidence

supports the agency's decision, 'a court may not substitute its own judgment for

the agency's even though the court might have reached a different result[.]'" In

re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training


                                                                            A-2685-16T2
                                        19
Ctr., 127 N.J. 500, 513 (1992)).    Accordingly, we reject Lanza's specious

argument that he was an employee of the respective municipalities and therefore

entitled to PERS participation, and conclude the Board did not err in rendering

a contrary determination.

      Affirmed.




                                                                       A-2685-16T2
                                     20
