Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0620-24 ROBERT J. PINIZZOTTO, Petitioner-Appellant, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Respondent-Respondent. ______________________________ Argued September 30, 2026 – Decided October 21, 2026 Before Judges Marczyk and Jacobs. On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS No. xx7482. Robert J. Pinizzotto, appellant, argued the cause on appellant's behalf. Jeffrey D. Padgett, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Jeffrey D. Padgett, on the brief). PER CURIAM Petitioner Robert J. Pinizzotto appeals from a September 19, 2024 final agency decision by the Board of Trustees (Board) of the Public Employees' Retirement System (PERS) finding him ineligible for continued enrollment in PERS as of January 1, 2008. We affirm. I. A. Background. From January 1, 1999, through December 31, 2009, petitioner was enrolled in PERS for his concurrent municipal prosecutor positions in Buena Vista Township (Buena Vista) and Hamilton Township (Hamilton). 1 He was also enrolled in PERS for his positions in other municipalities at varying times, which are not at issue here, and he maintained a private law practice. In 2007, the Legislature enacted significant reforms to PERS under L. 2007, c. 92 (Chapter 92). N.J.S.A. 43:15A-7.2 governs PERS eligibility for professional services contracts. The statute took effect on January 1, 2008, and, in relevant part, provides: a. A person who performs professional services for a political subdivision of this State . . . under a professional services contract awarded in accordance 1 Petitioner enrolled in PERS for his Hamilton position in 1999, but he had been enrolled for his Buena Vista position since 1992. A-0620-24 2 with [N.J.S.A. 40A:11-5] . . . on the basis of performance of the contract, shall not be eligible for membership in the [PERS]. . . . 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 [PERS], if the person meets the definition of independent contractor as set forth in regulation or policy of the federal Internal Revenue Service [(IRS)] for the purposes of the Internal Revenue Code. . . . .... As used in this subsection, the term "professional services" shall have the meaning set forth in [the Local Public Contracts Law (LPCL), N.J.S.A. 40A:11- 1 to -60].[2] On January 7, 2008, following the enactment of N.J.S.A. 43:15A-7.2, Buena Vista passed Resolution 10, titled "RESOLUTION APPOINTING A 2 N.J.S.A. 40A:11-2(6) defines "professional services" as: [S]ervices 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 rendered in the provision or performance of goods or services that are original and creative in character in a recognized field of artistic endeavor. A-0620-24 3 PROSECUTOR FOR THE FISCAL YEAR 2008 UNDER A PROFESSIONAL SERVICES AGREEMENT [(PSA)]," which reappointed petitioner to the prosecutor position. The resolution acknowledged the LPCL requires contract awards for "professional services" without competitive bids to be publicly advertised. It stated: "This [c]ontract is awarded without competitive bidding as a 'Professional Service' under the provision of . . . the [LPCL] because the law permits the waiving of competitive bids under N.J.S.A. 40A:11-5." The following year, on January 5, 2009, Buena Vista adopted a similar resolution containing nearly identical language to the 2008 resolution, reappointing petitioner to the position for fiscal year 2009. Meanwhile, at its January 7, 2008 reorganization meeting, Hamilton also passed a resolution appointing petitioner as its municipal prosecutor "for the year 2008, or until a successor [wa]s appointed," at a yearly salary pursuant to his response to its request for qualification (RFQ) for township prosecutor. At its 2009 reorganization meeting, Hamilton passed a new resolution reappointing petitioner to the position "at [a] salary set by [o]rdinance, for the year 2009 or until a successor [wa]s appointed." However, it did not issue a request for proposal (RFP) for the position that year. B. The Investigation. A-0620-24 4 In October 2014, an investigator with the Division's Pension Fraud and Abuse Unit (PFAU) sent petitioner two separate letters stating it had determined he was ineligible for continued enrollment in PERS with Buena Vista and Hamilton after December 31, 2007, when Chapter 92 became effective. Petitioner was further advised his "retirement system membership account w[ould] be adjusted to exclude any . . . service credited to [him] after that date." Petitioner appealed from the PFAU's determination. However, in June 2016, the Board issued a decision maintaining he was ineligible for PERS enrollment as of January 1, 2008, pursuant to Chapter 92. Specifically, it found petitioner ineligible under N.J.S.A. 43:15A-7.2(a) because both townships had retained him pursuant to a PSA under the LPCL. The Board also found petitioner was an independent contractor for Hamilton while serving as its municipal prosecutor. He was therefore also ineligible for PERS as it pertained to that position pursuant to N.J.S.A. 43:15A-7.2(b). C. The Board's Subsequent Investigation and Decision. A-0620-24 5 On May 20, 2021, PFAU Investigator Kristin Conover informed petitioner the Division had undertaken an additional review of his eligibility. 3 She explained, however, the Division reached the same conclusion as before and found him ineligible for continued enrollment in PERS as of January 1, 2008. The Division reasoned petitioner was ineligible for his service to Hamilton under N.J.S.A. 43:15A-7.2(a) because he was appointed by resolution following an RFP in 2008, and there was no material change to his appointment from 2008 to 2009. Similarly, it found he was ineligible under subsection (a) for his service to Buena Vista because he was awarded a professional services contract by resolutions in both 2008 and 2009. It also found him ineligible for his service to Hamilton under subsection (b) based on the IRS twenty-factor test and supporting documentation, as his relationship with Hamilton was that of an independent contractor rather than an employee, as detailed in Appendix A to Conover's determination letter. 3 Following this court's decision in Petit-Clair v. Board of Trustees, No. A- 2048-16 (App. Div. Mar. 1, 2018) (slip op. at 9-10), which found the checklist the Board and the administrative law judge used to differentiate between independent contractors and bona fide employees was insufficient, the Board voted to require the Division to comply with the court's directive and apply the IRS guidelines to each case previously considered under N.J.S.A. 43:15A- 7.2(b), including petitioner's case. A-0620-24 6 Thereafter, on October 21, 2022, the Board notified petitioner it had affirmed the Division's decision "substantially for the reasons as outlined in [that] . . . decision." Petitioner appealed, and the Board transmitted the matter to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).4 D. The ALJ's Decision. On August 13, 2024, the ALJ issued an initial decision. She affirmed the Board's denial of petitioner's eligibility for service credit for 2008 and 2009 based on his appointment as a municipal prosecutor for Buena Vista and Hamilton. The ALJ determined, under N.J.S.A. 43:15A-7.2(a), petitioner was not eligible for enrollment in PERS effective January 1, 2008, as the evidence demonstrated he served as a professional service provider for both Buena Vista and Hamilton during 2008 and 2009 pursuant to the LPCL. She explained petitioner's eligibility for continued enrollment in PERS was dependent on whether he was a professional services provider, as individuals awarded professional services contracts pursuant to an RFP are ineligible under the statute. She found petitioner's services were "clearly 'professional' in nature[,] 4 Conover, petitioner, and Hamilton's former mayor and former administrator testified at the hearing. A-0620-24 7 as he was retained . . . to utilize his skills and training as an attorney-at-law," he served political subdivisions of the State, and "his appointment was not subject to formal public bidding precisely because it fell under the exception for professional services" pursuant to N.J.S.A. 40A:11-5. The ALJ found Buena Vista solicited an RFP both years for a municipal prosecutor, and its resolutions specified the appointments to that position were made under a PSA for a one-year term without competitive bids pursuant to the LPCL. Similarly, she found Hamilton solicited an RFP for its municipal prosecutor position in 2008 and appointed petitioner by resolution, which expressly referenced his RFQ response as the basis for his appointmen t. Although Hamilton did not use the RFQ process in 2009 and instead only appointed petitioner by resolution at a "salary set by ordinance," the ALJ noted the evidence showed there was no material change to the position that year. She further explained, "the substance of the agreement between a municipality and its professional service provider, rather than the form of the agreement, controls." The ALJ also concluded, in applying the IRS twenty-factor test, petitioner was an independent contractor for Hamilton rather than an employee A-0620-24 8 pursuant to N.J.S.A. 43:15A-7.2(b). Specifically, she found the following factors weighed in favor of petitioner being deemed an independent contractor: [Petitioner] received no instructions from Hamilton; he was provided with no training as to his duties as a municipal prosecutor; he had no set hours of work other than that required for court appearances; he received no evaluations; he had no continuing relationship but was appointed annually; he filed no reports; he could make his legal services available to the public; he could work for more than one municipality; he had no order or sequence to follow in performing his job; he maintained his private law practice and utilized the resources of his law firm to assist him in the performance of his duties to Hamilton. The ALJ found the fact petitioner "was paid a salary [wa]s not determinative because if he were misclassified to begin with, th[e] factor would have no merit." Additionally, she noted petitioner "was also provided an office for the times court was in session. All other work associated with being a prosecutor was performed from [petitioner]'s private law firm. Although Hamilton had a busy calendar, [petitioner] was not a full-time employee." The ALJ further stated, "[petitioner]'s position of municipal prosecutor was precisely the type of professional . . . Chapter 92 was designed to exclude from PERS service credits." E. The Board's Final Agency Decision. A-0620-24 9 On September 19, 2024, the Board issued a final decision adopting the ALJ's decision, which affirmed the Board's denial of petitioner's eligibility for PERS service credit in 2008 and 2009 based on his appointment as a municipal prosecutor for Buena Vista and Hamilton pursuant to Chapter 92. This appeal ensued. II. Petitioner contends this court should apply the federal standard of review for agency decisions set forth in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), and independently analyze the issue rather than defer to the Board's determination based solely on the IRS twenty-factor test. In doing so, he asserts a review of relevant IRS policies and regulations would show he is an employee eligible for continued enrollment in PERS because, as a municipal prosecutor, he was a public official, and thus, an employee. Petitioner further asserts the record does not support the Board's conclusion he was an independent contractor under the IRS twenty-factor test. The scope of appellate review of an administrative agency's final determination is limited. Parsells v. Bd. of Educ. of Somerville, 254 N.J. 152, 162 (2023). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily A-0620-24 10 delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Env't Prot., 82 N.J. 530, 539 (1980)). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "The burden of demonstrating that the agency's action was arbitrary, capricious[,] or unreasonable rests upon the [party] challenging the administrative action." Lavezzi, 219 N.J. at 171 (second alteration in original) (quoting In re J.S., 431 N.J. Super. 321, 329 (App. Div. 2013)). Accordingly, a reviewing court must examine: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid. (quoting Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007))).] A-0620-24 11 "[I]n reviewing the decision of an administrative agency, we . . . give deference to the agency's findings of facts." Utley v. Bd. of Rev., 194 N.J. 534, 551 (2008). However, although "we must give deference to the agency's findings of facts, and some deference to its 'interpretation of statutes and regulations within its implementing and enforcing responsibility,' [reviewing courts] are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Ibid. (citations omitted) (first quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997); and then quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). In other words, we "defer to an agency's interpretation of both a statute and implementing regulation, within the sphere of the agency's authority, unless the interpretation is plainly unreasonable." Ardan v. Bd. of Rev., 231 N.J. 589, 604 (2018) (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). We therefore are "not bound by an unreasonable or mistaken interpretation of [a statutory] scheme, particularly one that is contrary to legislative objectives." McClain v. Bd. of Rev., 237 N.J. 445, 456 (2019). Petitioner argues New Jersey courts should adopt a new, non-deferential standard of review of agency decisions consistent with the United States A-0620-24 12 Supreme Court's decision in Loper Bright, which overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pursuant to that standard, he argues this court should conduct an independent analysis of his PERS eligibility and afford no deference to the Board's determination. In Loper Bright, the Supreme Court held federal courts "may not defer" to federal agencies' interpretations of federal statutes, even if ambiguous, and rather, "must exercise . . . independent judgment in deciding whether an agency has acted within its statutory authority, as the [federal Administrative Procedure Act (APA)] requires." 603 U.S. at 412-13. However, "Loper Bright is not binding on" New Jersey courts, particularly when the courts are reviewing state agency decisions on matters of state law. Bd. of Educ. of Sparta v. M.N. ex rel. A.D., 258 N.J. 333, 343 n.4 (2024). Thus, our courts continue to accord deference to such decisions. Although our Supreme Court has not yet decided whether our deference to agency decisions should track Loper Bright, the Court has thus far declined to apply its reasoning. See e.g., In re P.T. Jibsail Fam. Ltd. P'ship, 263 N.J. 208, 216-17 (2026) (explaining it would not attempt to reconcile New Jersey case law with Loper Bright because the case could be decided on other A-0620-24 13 grounds). Moreover, Loper Bright was decided under the federal APA and is not binding on our courts under the facts here, and petitioner failed to identify a specific basis for adopting Loper Bright's standard of review or explain its relevancy to this matter. Thus, because our Supreme Court has not adopted the Loper Bright decision or applied its reasoning, we likewise decline to do so and afford deference to the Board's interpretation of the statute at issue. Nevertheless, we are not bound by its interpretation. Regardless, the outcome of this matter would be the same whether we accorded deference or engaged in a de novo review under N.J.S.A. 43:15A-7.2(a). Petitioner contends the Board erred in finding he was an independent contractor and thus ineligible for pension credits under N.J.S.A. 43:15A -7.2(b) because it improperly limited its analysis to the IRS twenty-factor test. Although he concedes that test is a relevant consideration to the matter, he asserts the statute requires the consideration of "all" IRS regulations and policies. Specifically, petitioner contends municipal prosecutors in New Jersey who hold "public office" are "public officials" and should thus be classified as employees for PERS eligibility purposes, rather than independent contractors, according to other IRS regulations and policies. A-0620-24 14 Petitioner relies on N.J.S.A. 2B:25-9, which governs the process for removing public officials from office and states: "In addition to any of the other means provided by law for the removal from office of a public official, a municipal prosecutor may be removed by the governing body of a county or municipality . . . ." He further points to New Jersey case law interpreting the term "public office" as a position created or recognized by law, which assigns to the official the continuous performance of permanent public duties and the exercise of sovereign authority. 5 Petitioner also asserts municipal prosecutors are public officials holding public office based on the prosecutorial immunity they enjoy, their subservience to county prosecutors, their dual service to the State and municipality, and their subjection to statewide policy directives. Accordingly, petitioner maintains the ALJ misclassified him as an independent contractor, citing the IRS memoranda, rulings, and documents he admitted into evidence at the hearing, which he contends show the IRS classifies public officials, like municipal prosecutors, as employees for tax purposes. He emphasizes those authorities addressed the employment classification of certain public officials for tax purposes under federal case 5 See Thorp v. Bd. of Trs. for Indus. Educ. of Newark, 6 N.J. 498, 506-07 (1951); Gallaher v. Camden Cnty., 129 N.J.L. 290, 291 (1942); Fredericks v. Bd. of Health, 82 N.J.L. 200, 201 (1912); State v. Williams, 189 N.J. Super. 61, 65-66 (App. Div. 1983). A-0620-24 15 law, classifying part-time municipal animal control officers, deputy tax collectors, and municipal judges in different jurisdictions as employees. Petitioner asserts the ALJ should have likewise classified him as an employee, as municipal prosecutors are public officials with comparable responsibilities to those positions. Petitioner further argues an independent review of the IRS twenty-factor test pursuant to Loper Bright, based on the hearing record, demonstrates he was an "employee" and thus entitled to pension service credits for 2008 and 2009. Because we conclude N.J.S.A. 43:15A-7.2(a) provides an independent basis to affirm the Board's decision, we confine our discussion to this section of the statute. Petitioner did not challenge the Board's finding under N.J.S.A. 43:15A-7.2(a). Arguments not raised in a party's briefs are deemed waived. R. 2:6-2(a)(6); see also Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014) (holding an issue not briefed is deemed waived upon appeal); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2026). The Board found petitioner served as a professional service provider for both Buena Vista and Hamilton during 2008 and 2009 under professional service contracts pursuant to the LPCL. We affirm the Board's decision substantially for the reasons set forth by the ALJ as adopted by the Board. A-0620-24 16 Subsections (a) and (b) of N.J.S.A. 43:15A-7.2 set forth independent grounds for finding an individual ineligible for PERS benefits, and because we conclude petitioner is ineligible under subsection (a), whether he is eligible under subsection (b) is not germane to our analysis. As the ALJ observed, and the Board adopted, petitioner's prosecutor position was "precisely the type of professional" contemplated by N.J.S.A. 43:15A-7.2(a). For these reasons, we determine the Board's decision was not arbitrary, capricious, or unreasonable. Affirmed. A-0620-24 17