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).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-2685-16T2

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. 43:15A7.2(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, 
3

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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.
4

A-2685-16T2

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 
5

A-2685-16T2

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]
6

A-2685-16T2

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.] 19:44A20.4 . . . [.]

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). 
7

A-2685-16T2

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.
8

A-2685-16T2

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 
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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 
10 A-2685-16T2

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 
11 A-2685-16T2

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).
12 A-2685-16T2

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.
13 A-2685-16T2

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 attorneyat-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 
14 A-2685-16T2

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 
15 A-2685-16T2

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.
16 A-2685-16T2

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. 
17 A-2685-16T2

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., 
18 A-2685-16T2

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. 
19 A-2685-16T2

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 
20 A-2685-16T2

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.