                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be bindin g 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-2047-17T1

CELESTE A. LAMPLEY,

          Appellant,

v.

BOARD OF REVIEW, and
NEW JERSEY DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT,

     Respondent.
______________________________

                    Submitted January 29, 2019 – Decided February 21, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 110,762.

                    Celeste A. Lampley, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Elizabeth A. Davies, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Celeste A. Lampley appeals from two final agency decisions of the Board

of Review (Board) affirming determinations made by the Appeal Tribunal

(Tribunal).   The first appeal challenges the Board's finding that her

unemployment benefits must be reduced due to her pension compensation. The

second appeal challenges the Board's decision that Lampley is liable to refund

$8998 received as benefits. We affirm in both consolidated appeals.

                                       I.

      After Lampley's separation from her employment as an unemployment

insurance clerk at the New Jersey Department of Labor (DOL), she accepted a

settlement offer after the administrator of employee relations, Suzan Nickelson,

allegedly told Lampley that her eligibility for unemployment benefits would be

unaffected by the settlement or her receipt of pension benefits. Her last day at

DOL was February 9, 2016. She was also employed on a part-time basis as a

direct care provider for the Center for Family Support New Jersey, Inc. (CFS)

from August 2013 to September 23, 2016.

      Lampley filed for unemployment benefits on February 7, 2016. She began

receiving a monthly pension of $1666.27 from DOL on March 1, 2016. From

March 5 to July 30, 2016, she received weekly unemployment benefits of $541.

A deputy reduced Lampley's unemployment benefits from $541 to $348, due to


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a pension offset, and requested a refund of $8998 from the March to July period,

due to overpayment. In a separate determination rendered that day, the deputy

determined that Lampley was ineligible for benefits relative to her employment

with CFS from February 26, 2016, through February 25, 2017, because she was

unavailable to work.

      During her telephonic testimony, Lampley testified that, on her last day

of work at DOL, she was offered a "settlement" by Nickelson, and that the

department would not "stop [her] unemployment or [her] pension."            The

Tribunal reversed the deputy's determination that Lampley was disqualified

from receiving benefits in respect of her employment with CFS.           As to

Lampley's claim about what Nickelson told her, the Tribunal found: "It appears

that claimant was misinformed. Benefit determinations are made in accordance

with the law. The fact that the claimant was misinformed does not vitiate the

requirements of the law." Notwithstanding its finding, the Tribunal remanded

the refund issue to the deputy for a recalculation.

      Lampley appealed the Tribunal's decision reducing her benefits due to the

pension offset to the Board. In response, the Board remanded the issues of

Lampley's pension reduction, availability for work, and her active search for

work to the Tribunal for a hearing. Following another testimonial hearing, the


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                                        3
Tribunal determined that under N.J.A.C. 12:17-8.2, Lampley's weekly benefit

rate of $541 should be reduced to $348 effective March 6, 2016, and that she

was ineligible for benefits from February 7, 2016, through February 4, 2017, as

per N.J.S.A. 43:21-4(c)(1).       The refund amount was remanded for a

recalculation. The Board affirmed the Tribunal's decision.

                                       II.

      On appeal, Lampley argues that she should not be responsible to refund

the benefits paid to her because she was "misinformed," and that she could not

diligently explore the matter because she suffered a stroke after her termination.

The DOL seeks affirmance of the Tribunal's decision that the legal requirements

of N.J.A.C. 12:17-8.2 and N.J.S.A. 43:21-16(d) vault Lampley's mistaken belief

that her unemployment benefits would not be reduced.

      Our authority to review a determination of the Board is limited. Brady v.

Bd. of Review, 152 N.J. 197, 210 (1997). The burden of proof rests on Lampley

to establish her right to unemployment compensation without a pension offset.

See id. at 218.

      When the issue on appeal concerns an agency's interpretation of a statute

it is charged with enforcing, the "reviewing court should strive to 'give

substantial deference to'" the agency's interpretation. In re Virtua-West Jersey


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                                        4
Hosp., 194 N.J. 413, 423 (2008) (quoting Saint Peter's Univ. Hosp. v. Lacy, 185

N.J. 1, 15 (2005)). However, we are "not 'bound by the agency's interpretation'

. . . . because it is the responsibility of a reviewing court to ensure that an

agency's administrative actions do not exceed its legislatively conferred

powers." Id. at 422 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,

93 (1973)).

      If the Board's factual determinations are supported by sufficient credible

evidence in the record, we must accept them. Brady, 152 N.J. at 210. We may

not substitute our judgment for that of the agency, even if we would have

reached a different result. Ibid. In addition, we will not disturb the Board's

decision unless we conclude that it was arbitrary, capricious, or unreasonable.

Ibid. Thus, our scope of review of an agency decision is restricted to the

following four inquiries:

              (1) whether the agency's decision offends the State or
              Federal Constitution;

              (2) whether the agency's action violates express or
              implied legislative policies;

              (3) whether the record contains substantial evidence to
              support the findings on which the agency based its
              action; and

              (4) whether in applying the legislative policies to the
              facts, the agency clearly erred in reaching a conclusion

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                                         5
            that could not reasonably have been made on a showing
            of the relevant factors.

            [Id. at 211.]

      Lampley contends that she is without fault for the incorrect benefit

calculation, and that she should not be liable for an overpayment that she was

not aware of nor responsible for bringing about. "N.J.S.A. 43:21-16(d) requires

the full repayment of unemployment benefits received by an individual who, for

any reason, regardless of good faith, was not actually entitled to those benefits."

Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997) (citing

Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973) (holding

claimant was required to refund erroneously paid unemployment benefits even

though she applied for them in good faith)).          The Division is expressly

authorized by statute to recover benefits erroneously paid at any time within four

years after the benefits in question were paid. N.J.S.A. 43:21-16(d).

      Further, N.J.A.C. 12:17-14.2 sets forth three limited circumstances under

which a waiver of recovery may be granted: (1) "[w]here the claimant is

deceased;" (2) "[w]here the claimant is disabled and no longer able to work;" or

(3) "[w]here the recovery of the overpayment, as determined by the Director

with the Controller's concurrence, would be patently contrary to the principles

of equity." The Administrative Code further clarifies:

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                                        6
            (d) For purposes of determining under (a)3 above
            whether the recovery of the overpayment would be
            "patently contrary to the principles of equity," the
            Director and Controller shall consider whether the
            terms of a reasonable repayment schedule would result
            in economic hardship to the claimant.

            [N.J.A.C. 12:17-14.2.]

However, it is the exception, and not the rule, that repayment of unemployment

benefits to which a recipient was not entitled will be waived. We find no

exception applies here. At the hearing, Lampley testified that Nickelson advised

her that she would be allowed both her pension and unemployment benefits with

her settlement, which came to fruition, only at a reduced rate. Thus, there is

sufficient evidence in the record supporting the Board's finding that Lampley's

reliance on Nickelson was a mistake.

      Recovery of erroneously distributed benefits furthers the purpose of our

unemployment compensation laws. Bannan, 299 N.J. Super. at 674. Moreover,

the public interest would be imperiled if the Unemployment Trust Fund were

depleted by the failure to recover benefits erroneously paid to unentitled

recipients, however blameless they may be. Ibid.

                                       III.

      We next address Lampley's claim that her unemployment benefits were

wrongfully offset by her pension. N.J.S.A. 43:21-5a(b) deals with the situation

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                                        7
where an individual who qualifies for unemployment benefits is receiving a

pension, taking into account contributions made by the claimant:

            If such payment is made under a plan to which the
            employer and individual contributed, the amount of
            benefits payable to the individual for any week will be
            reduced by an amount equal to 50 percent of the amount
            of the pension, retirement or retired pay, annuity, or
            other payment which is reasonably attributable to such
            week, provided that the reduced weekly benefit amount
            shall be computed to the next lower multiple of $1.00
            if not already a multiple thereof.

            [N.J.A.C. 12:17-8.2(a)(2).]1

Based upon our careful review of the record, we conclude that the Board

appropriately applied the statutory scheme.

      Lastly, we address the refund of $8998 Lampley must pay. We recognize

that there may be some hardship created for beneficiaries when repayment of

erroneously distributed benefits is required. As we noted in Bannan, "virtually

every recipient of unemployment benefits who by definition lacks adequate

sources of income and relies upon the initial representation that benefits will be

paid, uses the payments to meet expenses and faces difficulty repaying sums that



1
   In accordance with this regulation, the Tribunal calculated that Lampley's
weekly pension rate was $387.50 ($1666.27 divided by 4.3). Fifty percent of
$387.50 equals $193 when rounded down. Benefits were thus appropriately
calculated at $348 ($541 minus $193).
                                                                          A-2047-17T1
                                        8
are subsequently determined to have been erroneously disbursed." Id. at 676.

Where the interests of such individuals, and those of society in general, are at

odds, we are loathe to apply principles of estoppel against governmental

agencies.   Id. at 675.     That the individual must suffer hardship is a most

unfortunate consequence, albeit a necessity in order to preserve the broader

public interest in the unemployment compensation system. Ibid.

      We acknowledge that the record tends to show that Lampley acted in good

faith in applying for unemployment benefits and, indeed, there appears to have

been no fault on her part leading to the overpayments. Nonetheless, Lampley

has not demonstrated that a repayment schedule of the excess benefits she

received would result in economic hardship to her.

      The findings of the administrative agency are not disputed and such

findings are binding upon this court. Simply stated, Lampley received an

overpayment of benefits, which she is obligated to pay, and the pension offset

was correctly calculated.

      Affirmed.




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