SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3559-19

KELLY A. BUSKEY,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

TEACHERS' PENSION AND

ANNUITY FUND,

Respondent-Respondent.

__________________________

Argued November 9, 2021 – Decided November 22, 2021

Before Judges Mawla and Mitterhoff.

On appeal from the Board of Trustees of the Teachers' 

Pension and Annuity Fund, Department of the 

Treasury.

Jason E. Sokolowski argued the cause for appellant 

(Zazzali, Fagella, Nowak, Kleinbaum & Friedman, PC, 

attorneys; Jason E. Sokolowski, of counsel and on the 

briefs).

Jeffrey Padgett, Deputy Attorney General, argued the 

cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Melissa H. Raksa, 

NOT FOR PUBLICATION WITHOUT THE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.
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Assistant Attorney General, of counsel; Jeffrey Padgett, 

on the brief).

PER CURIAM

Petitioner Kelly A. Buskey appeals from an April 6, 2020 final 

administrative determination of respondent Board of Trustees (Board) of the 

Teachers' Pension and Annuity Fund (TPAF) denying her request to extend her 

Tier 2 TPAF membership. We affirm. 

This case concerns the interpretation of two statutes governing TPAF 

membership. N.J.S.A. 18A:66-7(a) provides: "Membership of any person shall 

cease . . . if, except as provided in [N.J.S.A.] 18A:66-8, he [or she] shall 

discontinue his [or her] service for more than two consecutive years[.]" N.J.S.A. 

18A:66-8(a)(1) to (2) states: "If a teacher . . . has been discontinued from service 

without personal fault . . . the teacher's membership may continue . . . if the 

member returns to service within a period of [ten] years from the date of 

discontinuance from service."

On September 1, 2009, Buskey enrolled in TPAF through her employment 

with the South Brunswick Board of Education. On September 1, 2013, she 

transferred to a TPAF-eligible, non-tenured teaching position with the Plumsted 

Township Board of Education, where she remained until June 30, 2017. 
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Plumsted did not renew Buskey's contract for the 2017-18 school year, and opted 

not to review five other employees' contracts as well. 

On March 5, 2019, the Division of Pensions and Benefits (Division) 

notified Buskey in writing her TPAF account was scheduled to expire on June 

30, 2019, because she had not made contributions to the account in two years. 

On March 18, 2019, TPAF received a certification form from Plumsted, which 

identified Buskey's status as "[l]aid off[,]" and "[o]ther." As an explanation for 

the "other" sections, Plumsted wrote "[non]-renewed." Plumsted later amended 

the certification, removing the marking for the "[o]ther" category and "[n]onrenewed" to "[l]aid off" above which it wrote "[b]udget cut." The Division never

received the amended certification.

Buskey subsequently began working for the Shrewsbury Borough Board 

of Education and continued her TPAF membership. On August 27, 2019, the 

Division informed Shrewsbury it could not transfer Buskey's Tier 2 TPAF 

contributions because her account had expired, and that Buskey should instead 

enroll as a new TPAF member. Effective September 1, 2019, Buskey enrolled 

in a new Tier 5 TPAF membership account.

Buskey contacted the Division asserting her account should not have 

expired because her employment was terminated due to a reduction in force. 
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The Division responded by letter informing her it "does not grant an extension 

beyond the two years of inactivity for members who were terminated due to their 

contract not being renewed. Therefore, your account has expired on June 30, 

2019." 

Buskey contacted the Division again and argued her membership in the 

Tier 2 TPAF account should continue for up to ten years because she was laid 

off from her teaching position for budgetary reasons, not for performancerelated issues. She claimed she was entitled to a statutory exemption from

expiration of membership because she returned to active service within the tenyear period.

The Division denied Buskey's request, citing N.J.S.A. 18A:66-7 and 

N.J.S.A. 18A:66-8. It noted there was no evidence indicating Buskey was laid 

off to "qualify for the statutory exemption of expiration of membership beyond 

two years." Buskey appealed. The TPAF Board affirmed and Buskey requested 

a hearing in the Office of Administrative Law (OAL). 

On April 6, 2020, the Board issued a final administrative determination 

affirming denial of Buskey's request to extend the expiration date of her TPAF 

account. The Board cited N.J.S.A. 18A:66-7 and denied a transfer to the OAL 

because "there are no factual issues to be adduced at a hearing . . . ."
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The Board also concluded the N.J.S.A. 18A:66-8 exemption did not apply 

to Buskey because "[t]he non[-]renewal of a non[-]tenured teacher's annual 

contract does not constitute a reduction in number or a discontinuance of service, 

which both pertain to tenured teachers." The Board cited the Supreme Court, 

which stated: "The practice of offering separate, annual employment contracts 

to non[-]tenured school employees is long-standing" and non-tenured school 

employees "have no right to the renewal of their individual contracts . . . ." 

Pascack Valley Reg'l High Sch. Bd. of Educ. v. Pascack Valley Reg'l Support 

Staff Ass'n, 192 N.J. 489, 497, 491 (2007). The Board also noted it "is a 

management prerogative [to have] the right not to renew the contracts of non[-

]tenured teachers." Bd. of Educ., Twp. of Wyckoff v. Wyckoff Educ. Ass'n, 168 

N.J. Super. 497, 501 (App. Div. 1979). As a result,

[t]he Board determined that the circumstances which 

resulted in non-renewal of . . . Buskey's contract with 

Plumsted . . . were not a lay[]off which would qualify 

for the statutory exemption of expiration of 

membership beyond two years. Instead, . . . Buskey's 

annual contract was not renewed[,] and her 

employment ended on June 30, 2017.

I.

Our "review of administrative agency action is limited." Russo v. Bd. of 

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re 
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Herrmann, 192 N.J. 19, 27 (2007)). We defer "to an administrative agency's 

exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 

163, 171 (2014) (citing City of Newark v. Nat. Res. Council, Dep't of Env't Prot., 

82 N.J. 530, 539 (1980)). "[A]n appellate court ordinarily should not disturb an 

administrative agency's determinations or findings unless there is a clear 

showing that (1) the agency did not follow the law; (2) the decision was 

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by 

substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate 

of Need, 194 N.J. 413, 422 (2008). We are "in no way bound by [an] agency's 

interpretation of a statute or its determination of a strictly legal issue." Allstars 

Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) 

(alteration in original) (quoting Dep't of Child. & Fams., Div. of Youth & Fam. 

Servs. v. T.B., 207 N.J. 294, 302 (2011)); see also State v. S.B., 230 N.J. 62, 67 

(2017) (stating statutory interpretation issues are reviewed de novo).

II.

On appeal, Buskey acknowledges N.J.S.A. 18A:66-7 terminates TPAF 

membership if the member is inactive for more than two years. However, she 

argues she was entitled to the exemption in N.J.S.A. 18A:66-8(a)(1) to (2)

because a non-renewal is encompassed by the "without personal fault" grounds 
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envisioned by the statute. She argues the cases the Board cited are inapposite 

and do not stand for the proposition that N.J.S.A. 18A:66-8 applies only to 

tenured teachers. We are unpersuaded.

N.J.S.A. 18A:27-4.1(b) states: "A board of education shall renew the 

employment contract of a certificated or non-certificated . . . employee only 

upon the recommendation of the chief school administrator" and "[a] 

non[-]tenured . . . employee who is not recommended for renewal by the chief 

school administrator shall be deemed non[-]renewed." Accordingly, in Pascack 

Valley, the Court held non-tenured employees "have no right to renewal of 

the[ir] [employment] contracts." 192 N.J. at 492. "These employees are then 

considered 'non[-]renewed' rather than terminated or dismissed." Id. at 493

(citing N.J.S.A. 18A:27-4.1(b)). To underscore the point, the Court 

distinguished between employees who are terminated and those whose contracts 

are simply not renewed. See id. at 492-93. This mirrored the Court's findings 

in other cases that the term "layoff" "connotes involuntary dismissal during the 

term of a contract, and is not applicable to the non[-]renewal of a particular 

employee's appointment at the end of a fixed term." Camden Bd. of Educ. v. 

Alexander, 181 N.J. 187, 200 (2004) (superseded on other grounds by N.J.S.A. 

34:13A-5.3).
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Although these Supreme Court cases did not concern the application of 

N.J.S.A. 18A:66-8(a)(1) to (2), we draw on precedent interpreting similar 

language in other state pension systems. In Cologna v. Board of Trustees, Police 

and Firemen's Retirement System, 430 N.J. Super. 362 (App. Div. 2013), we 

interpreted N.J.S.A. 43:16A-3(5), a provision of the Police and Firemen's 

Retirement System (PFRS), which states:

If a member . . . has been discontinued from service 

through no fault of [their] own . . . [their] membership 

may continue, notwithstanding any provision of this 

article if such member returns to service within a period 

of [five] years from the date of [their] discontinuance 

from service.

Although the plaintiff voluntarily resigned from his job, we concluded that 

N.J.S.A. 43:16A-3(5) was "confined to only members who lose their public 

employment as the result of an employer's layoff or reduction in force, or 

through leave of absence in accordance with the statute." Id. at 364. We found

"the phrase 'has been discontinued' is written in the passive voice. As such, it 

connotes a situation in which an employer . . . took action against an employee 

by discontinuing his services." Id. at 372. Furthermore, we held "the passive 

term 'has been discontinued' . . . signifies that the employee in question, as the 

recipient of the action, has been terminated from his [or her] job as a result of 

the employer's own actions." Ibid. (quoting N.J.S.A. 43:16A-3(5)). 
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Accordingly, because the plaintiff resigned voluntarily and not as a result of his 

former employer's actions, he was not discontinued from service within the 

meaning of N.J.S.A. 43:16A-3(5). See ibid.

Here, Buskey was not terminated, dismissed, or otherwise laid off as 

envisioned by N.J.S.A. 18A:66-8. Rather, her contract expired and was not 

renewed. Buskey relied on the "without personal fault" language in the statute,

disregarding the preceding language requiring the employee to "ha[ve] been 

discontinued from service . . . ." See N.J.S.A. 18A:66-8(a)(1). Notwithstanding

the fault issue, the statutory extension did not apply to Buskey because she had 

no right to continued employment after the expiration of her contract. See

Pascack Valley, 192 N.J. at 492. 

Finally, we reject Buskey's assertion the Board was required to refer the 

matter to the OAL for factfinding. The central issue was whether the statutory 

exemption applies to non-tenured teachers. As a matter of law, it does not. 

Therefore, a factfinding hearing was not required. See N.J.A.C. 17:3-1.7(a)(4).

Affirmed.