                        NOT FOR PUBLICATION WITHOUT THE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.

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