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 

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

NOT FOR PUBLICATION WITHOUT THE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.

June 19, 2017
2 A-0516-15T4

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 
3 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.
4 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 thirtythree 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, 
5 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, 
6 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.
7 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 
8 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 
9 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 
10 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. 
11 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. 
12 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.
13 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 
14 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, 
15 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 
16 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. 
17 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. 43:15A7.2(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 
18 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.
19 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, 
20 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. 
21 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 
22 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.