JOSEPH W. COCO,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR
and WILLIAM PATERSON UNIVERSITY,
Respondents.

________________________________________________________________

Argued February 15, 2006 - Decided March 3, 2006

Before Judges Collester and Lisa.

On appeal from a Final Decision of the Board of Review, Department of Labor, 42,376.

Chriss A. Williams argued the cause for appellant (Appellant on the pro se brief).

Jennifer B. Pitre, Deputy Attorney General, argued the cause for respondent Board of Review (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Pitre, on the brief).

Respondent William Paterson University did not file a brief.

PER CURIAM

Appellant, Joseph W. Coco, an adjunct professor at two universities, appeals from a final decision of the Board of Review (Board) denying him unemployment benefits from July 4, 2004 to September 18, 2004, the period between two successive academic years or terms. Appellant argues that he did not sign a contract in advance of employment and did not receive reasonable assurances of work in the next academic term, and he therefore should not have been precluded from benefits. We reject this argument and affirm.

Appellant was an adjunct professor, teaching art and music classes, at Montclair State University between September 1999 and December 2003, and William Paterson University between January 2000 and June 30, 2004. Appellant taught regularly throughout each academic year during that period, from September to June. He never taught in July and August. Appellant did not have an ongoing contract of employment with either university. It is his contention that from term to term his continued employment was uncertain because it was dependent upon enough students signing up for courses that he was available to teach and the unavailability of regular professors to teach those courses.

New Jersey's Unemployment Compensation Law excludes from benefits instructional personnel at educational institutions

during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, . . . to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.

[N.J.S.A. 43:21-4(g)(1).]

Appellant was denied benefits because he fell within this proscription. He filed an administrative appeal. The Appeal Tribunal conducted a hearing on September 21, 2004 and received appellant's testimony. The Appeals Examiner issued her decision on October 6, 2004, upholding the denial of benefits. The Appeals Examiner found that appellant had a reasonable assurance of returning to his occupation for the fall semester with at least one of the two employers. Appellant filed a further administrative appeal to the Board, which, on January 14, 2005, issued its decision, upholding the Appeal Tribunal's decision. This appeal followed.

The issue before us is whether the Board's finding that appellant had a reasonable assurance of work at an educational institution for the school term beginning in September 2004 is supported by the record.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The scope of review of an administrative decision is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))).

In the factual context of this case, a "reasonable assurance" of continued employment for the fall term requires only "a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term." Sulat v. Bd. of Review, 176 N.J. Super. 584, 586 n.1 (App. Div. 1980). The burden is on the claimant to demonstrate that he did not have such a reasonable assurance. Charatan v. Bd. of Review, 200 N.J. Super. 74, 78-79 (App. Div. 1985).

Of course, appellant did not have an ongoing contract and he was not guaranteed work in each succeeding academic year. However, he had established a five-year history, during which he worked continuously during each school term between September and June. Appellant presented no evidence to suggest that his likelihood of employment for the term beginning in September 2004 was any different than in the prior years. Thus, his pattern of employment was unchanged, and the Board found that appellant failed to prove that he was not reasonably assured the pattern would continue.

We are satisfied from our review of the record that the Board's decision is amply supported by substantial credible evidence and is not arbitrary, capricious or unreasonable. Appellant's claim for unemployment benefits was properly denied.

Affirmed.