Sherri Adler v. East Brunswick Board of Education

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3443-23

A-3506-23

SHERRI ADLER, DENEEN

AMRANI, DONNA ANDERSON,

ZEYNEP ARHAN, JANET

ARNEST, MONICA AROCHO,

PATRICIA BARBERIO, COLEEN

BERMAN, JANET BODNAR,

AMAL BOSTROS, GINA CAFARO,

MARCI CARESTIA, RITU CHAWLA,

PRABHA CHIDAMBARAN, JOANNA

COMO, BERNADETTE COURTER, 1

ALISHA COX, ANNE CUGINI,

VICKIE DEBARI, DEEANN DERUVO,

PHYLLIS DOWNER, ROSEMARY

EDMONSON, ELLEN ELY, SALLY

FARG, CAROLINE FERNANDEZ,

ANTHONY FISCHER, KAREN

FITZGERALD, MARGARET

GALLAGHER, DONNA GEESEY,

DALIA GHALY, GINA GIARDINA,

LEA GIRGENTI, SHILPI GOSWAMI,

MATTHEW GRACON, TRICIA HALL,

ELAINE HANEY, KATHLEEN

JENNINGS, MI JUNG, KATREEN

KHELLA, ANITA KO, DONA

LAROCCA, ELLEN LAVANCO,

PATRICIA LOVELAND, AMBER

1

Improperly plead as Beernadette Courter.

LUBERTO, MIRIAM LUGO-

RODRIGUEZ, KOMAL MALHOTRA,

DONALD MANDY, KLODIANA

MARFIA, MARIE MAROULIS,

MICHELLE MARRONE, JEAN

MARTIN, JEFFREY MCCAWLEY,

HANY MEKHAIL, KATHLEEN

MILLER, HODA MOHAMED,

LORELEI MORIN, WENDY MOY,

PINKY NAINWANI, HANNAN

NASHED, RENEE NESSIEM-BASSILI,

PATRICIA O'LEARY JONES,

PATRICIA OCKENHOUSE, JENNIFER

ORANCHAK, KIMBERLY PACE,

DONNA PALAGONIA, VIVIAN

PERCOCO, EMMA PEREZ, LISA

RAHNER, MYRNA RAZAK, FARHAT

REHMANI, KELLIANNE RIZK,

CHRISTINE ROMAN, 2 JANETE

ROSEMAN, ADRIENNE SABATINO,

MELIKE SAHIN, MARIA SAMULKA,

CHRISTINA SCHMITT, MARLA

SCHNEIDER, KELSEY SCHUSTER,

RAINA SFEIR, MAGDA SHEHATA,

SAMINA SHEIKH, MICHELE

SHERMAN, JAEKYOUNG SHIM,

RENEE SIMON-RADOCZY, MOONIA

SOHERWARDY, LAURA SOUTHON,

NANCY STETZ, VIVIAN TADROS,

CHRISTINE TAMBINI MCCANN, MUI

LING TANG, JAYNE TOKASH,

ESTELA VALDEZ, JOSLYN VELEZ,

MELISSA WHYTE, JODY WIENER,

MARIA WOOD, LORRAINE ZEMBRO,

and PATRICIA ZIMMERMAN,

2

Improperly pled as Christinee Roman.

A-3443-23

2

Plaintiffs-Respondents/Cross-

Appellants,

v.

EAST BRUNSWICK BOARD OF

EDUCATION,

Defendant-Appellant/Cross-

Respondent.

__________________________________

Argued June 3, 2025 – Decided July 15, 2025

Before Judges Gilson, Firko, and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-4816-21.

Jessica V. Henry argued the cause for appellant/cross-

respondent (Cleary Giacobbe Alfieri Jacobs, LLC,

attorneys; Matthew J. Giacobbe, of counsel and on the

briefs; Jessica V. Henry, on the briefs).

Sheila Murugan argued the cause for

respondents/cross-appellants (Zazzali, PC, attorneys;

Richard A. Friedman, of counsel and on the briefs;

Sheila Murugan, on the briefs).

PER CURIAM

These appeals involve disputes over whether plaintiffs, who are part -time

public-school employees, are entitled to lost interest or investment income

because their employer, the East Brunswick Board of Education (the Board),

belatedly enrolled them in the New Jersey Defined Contribution Retirement

A-3443-23

3

Program (the DCR Program). Plaintiffs appeal from a Law Division order

denying their motion to reinstate their complaint after plaintiffs' administrative

application for damages was denied in a final agency decision by the Board of

Trustees of the DCR Program (the Trustees). The Board appeals from an order

denying its motion to dismiss plaintiffs' complaint with prejudice.

Because plaintiffs' sole remedy for claims related to the DCR Program

was an administrative claim to the Trustees, and because plaintiffs did not appeal

from the Trustees' final agency decision, we affirm the part of the order that

denied plaintiffs' motion to reinstate their complaint in the Law Division. We

reverse the order denying the Board's motion to dismiss with prejudice because

plaintiffs have no remedy other than an administrative remedy and they did not,

and now cannot, appeal from the Trustees' decision. Consequently, plaintiffs

have no further possible legal claim for their alleged damages against the Board.

We, therefore, remand with direction that the Law Division enter an order

dismissing plaintiffs' complaint with prejudice.

I.

The DCR Program was established in 2007 for the benefit of public

employees who are not eligible for other state-administered pension funds or

retirement systems, or whose salary falls within certain minimum or maximum

A-3443-23

4

criteria. N.J.S.A. 43:15C-1 and -2. Enrollment in the DCR Program is

mandatory for eligible employees, however, eligible employees may elect to

waive their right to participate. N.J.S.A. 43:15C-2(a), (c). An employee

contributes five-and-a-half percent of his or her base salary and the employer

contributes three percent of the employee's base salary. N.J.S.A. 43:15C-3(a),

(b).3 The funds are then invested. N.J.S.A. 43:15C-5. Employees have the right

to allocate their contributions, as well as the employer's contributions on their

behalf, into investment alternatives, like mutual funds, provided that the

investment alternatives are approved by the Trustees. Ibid. When they retire or

otherwise terminate their employment, eligible employees or their beneficiaries

will receive their share of the funds based on their contributions, the employer's

contributions on their behalf, and earnings on those monies. Ibid.

Plaintiffs are past and present part-time employees of the Board. They

were entitled to be enrolled in the DCR Program. The Board, however,

mistakenly delayed enrolling plaintiffs.

3

The employee's contributions are made by the employer withholding five-and-

a-half percent of the employee's base salary and contributing that withheld

amount to the DCR Program. N.J.S.A. 43:15C-3(a).

A-3443-23

5

After the Board realized its mistake, it enrolled the plaintiffs who were

still working for the Board. In September 2020, the Board and affected plaintiffs

began making catch-up contributions to account for the contributions that should

have been made had plaintiffs been timely enrolled. The Board points out, and

plaintiffs do not dispute, that until plaintiffs were enrolled, they received the

five-and-a-half percent of their salary that should have been withheld and paid

to the DCR Program. 4

On August 13, 2021, plaintiffs filed a two-count complaint against the

Board in the Law Division. In count one, plaintiffs alleged that the Board had

breached an "implied and/or express" contract by not timely enrolling them in

the DCR Program. In count two, plaintiffs alleged that they suffered damages

"[b]y [o]peration of [l]aw." Under both counts, plaintiffs sought the same relief:

lost interest or investment income for plaintiffs still employed with the Board;

and unmade contributions, plus lost interest or investment income, for plaintiffs

who became members of other pension funds, resigned, or retired.

4

At some point in time, the East Brunswick Education Association filed a

grievance on behalf of plaintiffs under the governing collective bargaining

agreement (CBA). That grievance was denied. The record on these appeals

does not contain the grievance or the resulting denial. The parties, however, do

not dispute that a grievance was filed and denied. It is also undisputed that the

parties did not proceed to grievance arbitration as called for in the CBA.

A-3443-23

6

The Board moved to dismiss the complaint, arguing that the Law Division

lacked subject matter jurisdiction because plaintiffs needed to pursue their

grievance under the CBA or an administrative remedy before the Division of

Pension and Benefits (the Division). The Board also argued that plaintiffs had

failed to plead a breach of contract under the CBA and that claims made by

certain plaintiffs were time-barred under the governing statute of limitations.

On January 31, 2022, the Law Division entered an order denying the

Board's motion. On reconsideration, however, the court vacated its January 31,

2022 order and, in an order dated October 25, 2022, it dismissed the complaint

without prejudice. The court dismissed count two so that plaintiffs could pursue

an administrative remedy before the Division. The court dismissed count one

without prejudice pending the administrative proceedings. Additionally, the

court stated, "the statute of limitations as alleged in [plaintiffs'] complaint is

hereby preserved."

In December 2022, plaintiffs filed a claim with the Division seeking

damages for alleged lost interest and investment income due to their delayed

enrollment in the DCR Program. Plaintiffs also sought unmade contributions

for the plaintiffs who had joined other pension funds, resigned, or retired. On

May 22, 2023, the Division denied plaintiffs' request for damages, explaining

A-3443-23

7

that the governing statutes did not provide for the recovery of lost interest or

investment income. The Division also stated "[t]here are no [statutory]

provisions for the employer to make or collect contributions for an employee

that is no longer on their payroll."

Plaintiffs administratively appealed from the Division's determination to

the Trustees. On February 23, 2024, the Trustees issued a final agency decision,

affirming the Division's decision and denying plaintiffs' request for damages.

The Trustees ruled that "[t]here are no specific statutory provisions that deal

with lost interest or investment income due to delayed or delinquent

enrollment." The Trustees pointed out that the DCR Program's "regulations

discuss contributions in N.J.A.C. 17:6-5.2 [and] 5.3. These regulations provide

instructions on the calculation of catch-up contributions, but consistent with the

statutory authority there is no provision for damages due to unearned interest or

investment income due to delayed enrollment." Furthermore, the Trustees

explained that they have

the authority to determine eligibility for participation in

the DCR [Program] and administer the required

employer and employee contributions. N.J.S.A.

43:15C-2; N.J.S.A. 43:15C-3. There are no specific

statutory provisions that deal with lost interest or

investment income due to delayed or delinquent

enrollment. No specific rate or amount of interest or

investment income is specified. Instead, "participants

A-3443-23

8

in the [DCR] Program shall be allowed to allocate their

own contributions and the contributions of their

employer into investment alternatives as determined by

the [Trustees] . . ." N.J.S.A. 43:15C-5. What interest

or investment income these employees would have

earned had they been timely enrolled in the DCR

[Program] is not within the scope of the [Trustees']

statutory authority to determine.

Plaintiffs did not file an appeal to this court from the final agency decision

by the Trustees. Instead, in April 2024, plaintiffs moved to vacate the October

25, 2022 Law Division order and reinstate their complaint in the Law Division.

The Board cross-moved to dismiss plaintiffs' complaint with prejudice.

On June 7, 2024, after hearing arguments, the Law Division entered two

orders. In the first order, the trial court denied without prejudice plaintiffs'

motion to vacate the October 25, 2022 order, reasoning that plaintiffs had failed

to exhaust their administrative remedies by appealing the Trustees' final agency

decision to the Appellate Division. In the second order, the trial court denied

the Board's motion to dismiss the complaint with prejudice, reasoning that

plaintiffs might be able to allege a different cause of action supporting their

claims for damages.

The Board moved for leave to appeal the order denying their motion for

dismissal with prejudice and we granted that motion. Plaintiffs filed a separate

appeal from the order denying their motion to reinstate the complaint and also

A-3443-23

9

moved for leave to appeal from that order. We granted plaintiffs leave to appeal

and we consolidated the two appeals. We also directed the parties to address

whether the Law Division ever had jurisdiction over plaintiffs' claims, the statute

of limitations defense, and whether the October 25, 2022 and June 7, 2024 orders

were final orders subject to appeal by right.

In addition, we directed plaintiffs to explain "what further action, if any,

they intend[ed] to take to pursue their claims, the specific times when they

[would] pursue their claims, and in what forum they believe[d] they [could]

pursue their claims." Plaintiffs responded to those questions by stating that

courts have the jurisdiction to award them damages, and that they were entitled

to pursue "all judicial remedies, including damages" before the trial court.

On July 17, 2024, the Law Division submitted a written supplement to the

oral decision it had placed on the record on June 6, 2024. The trial court

reiterated that plaintiffs were required to appeal to the Appellate Division to

exhaust their administrative remedies. The trial court also reasoned that the

action in the Law Division was barred because the governing statutes and

regulations created an exclusive administrative claim procedure before the

Division and Trustees. The Law Division went on to point out that the Appellate

Division had exclusive jurisdiction to review the final administrative decision

A-3443-23

10

by the Trustees. Nevertheless, the trial court explained that it did not dismiss

plaintiffs' complaint with prejudice because it thought it was possible that

plaintiffs had separate claims not governed by the Division's administrative

claim procedure.

II.

On its appeal, the Board makes five arguments. It contends that (1) the

Law Division never had subject matter jurisdiction over count two; (2) the Law

Division never had subject matter jurisdiction over count one because the

statutes and regulations governing the DCR Program bar a breach of contract

claim and the CBA requires arbitration of the dispute between the parties; (3)

the October 25, 2022 order was not a final order subject to appeal; (4) the June

7, 2024 orders were not final orders that could be appealed as of right; and (5)

the claims of some plaintiffs are time-barred by the applicable statute of

limitations.

In their appeal, plaintiffs make six arguments. They contend that (1) the

October 25, 2022 order and the June 7, 2024 orders are final orders subject to

appeal as of right; (2) the Law Division had jurisdiction over their claims in

count one seeking damages for a breach of contract; (3) the Law Division had

subject matter jurisdiction over their claims in count two seeking damages "by

A-3443-23

11

operation of law"; (4) they were not required to exhaust their administrative

remedies, and, even if they were, they did exhaust their remedies by obtaining a

final agency decision from the Trustees; (5) the Law Division erred by denying

their motion to reinstate their complaint and they should be allowed to file an

amended complaint; and (6) the Law Division correctly denied the Board's

motion to dismiss the complaint with prejudice.

The controlling issue on this appeal is a question of law: whether

plaintiffs can pursue a claim for damages against the Board in the Law Division

for lost interest or investment income because of their delayed enrollment in the

DCR Program. That legal question involves interpreting the statute that created

the DCR Program. We review that legal question de novo. 388 Route 22

Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 338

(2015).

We hold that plaintiffs' exclusive remedy for their alleged damages related

to the DCR Program was an administrative remedy before the Division and

Trustees. We further hold that because plaintiffs failed to appeal the Trustees'

final agency decision to us, they are barred from pursuing any other claim

seeking damages for their delayed enrollment in the DCR Program. Given those

holdings, the parties' other arguments are moot.

A-3443-23

12

A. Our Jurisdiction of These Appeals.

Our jurisdiction over these appeals is not at issue. We granted both the

Board and plaintiffs leave to appeal from the two June 7, 2024 orders . See R.

2:2-4. Accordingly, we need not decide whether those orders are final orders

subject to appeal as of right under Rule 2:2-3.

Nevertheless, we point out that generally when an order dismisses a

complaint without prejudice, and a plaintiff has the right to file an amended

complaint, the order is not final. Johnson v. City of Hoboken, 476 N.J. Super.

361, 370 (App. Div. 2023) (explaining that "[a]n order entered without prejudice

generally allows plaintiffs to move to amend their complaint and is therefore not

a final order" (citing Kwiatkowski v. Gruber, 390 N.J. Super. 235, 237 (App.

Div. 2007))); Grow Co. v. Chokshi, 403 N.J. Super. 443, 460 (App. Div. 2008)

(clarifying that a "dismissal without prejudice of unadjudicated claims that have

not been concluded in fact but are left to be resurrected in a new suit" does not

constitute a final judgment).

We do, however, sometimes treat orders dismissing complaints without

prejudice as final orders when we determine that there are no viable claims that

could be asserted in an amended complaint. Johnson, 476 N.J. Super. at 370-71

(treating an order dismissing a complaint without prejudice as a final order

A-3443-23

13

where plaintiffs did not file a second amended complaint, and instead appealed,

because the time to amend had expired). We also have occasionally granted

leave to appeal nunc pro tunc, when the finality of an order has not been

addressed until we reached the merits of the appeal. Jones v. Jones, 242 N.J.

Super. 195, 319 n.2 (App. Div. 1990) (granting "the necessary leave to appeal

[from an interlocutory order] nunc pro tunc in the interests of the prompt

disposition of the issue presented"); Stigliano v. St. Rose High Sch., 198 N.J.

Super. 520, 523 n.1 (App. Div. 1984) (allowing "the necessary leave to appeal

[from an interlocutory order] nunc pro tunc in the interest of the prompt

disposition of the issue presented which must be resolved before the suit can

proceed further").

We also point out that the October 25, 2022 order was not a final order.

That order was entered with the expectation that plaintiffs would file

administrative proceedings before the Division and might seek to amend or

reinstate their complaint after they had exhausted their administrative remedies.

B. The Exclusive Administrative Remedy Regarding Claims Related

to The DCR Program.

The DCR Program is a state-administered pension plan for certain

government employees. N.J.S.A. 43:15C-1 and -2. The DCR Program was

created for public employees who are not eligible for the Public Employees

A-3443-23

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Retirement System or whose salary falls within certain minimum or maximum

criteria. Est. of Smith v. N.J. Div. of Tax'n, 29 N.J. Tax 408, 416 n.7 (Tax 2016).

The governing statute sets forth the employee's and employer's contributions for

each eligible employee. N.J.S.A. 43:15C-3. The Legislature authorized the

Division to adopt rules and regulations necessary to implement the DCR

Program. N.J.S.A. 43:15C-1. Under those regulations, when an employer fails

to make a timely contribution for an employee, the employer is required to make

"catch-up" contributions. N.J.A.C. 17:6-5.2 and -5.3.

Employees who have a claim related to the DCR Program must exhaust

all administrative remedies under the program. N.J.A.C. 17:6-16.4(a); N.J.A.C.

17:6-2.1 (defining the "[p]rogram" as the DCR Program). In that regard, an

aggrieved employee must file a claim with the director of the Division,

otherwise known as the plan administrator. N.J.A.C. 17:6-20.9; N.J.A.C. 17:6-

2.1 (defining the "[p]lan [a]dministrator" as the director of the Division). The

DCR Program plan administrator "has full power and discretionary authority to

construe and interpret the provisions of the [DCR] Program . . . and to adjudicate

claims thereunder." N.J.A.C. 17:6-20.9.

The DCR Program does not give "any participant, beneficiary, alternate

payee or any other person any legal or equitable right against the employer or

A-3443-23

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the [p]lan [a]dministrator or their representatives, except as is expressly

provided by the [p]rogram." N.J.A.C. 17:6-16.12. In that regard, the DCR

Program states:

The obligation of the State to participating employees

and contractors shall be contractual only and no

preferred or special interest in the deferred moneys

shall accrue to such employees or contractors, except

that all assets and income of the program shall be held

in trust for the exclusive benefit of participating

employees and their beneficiaries.

[N.J.S.A. 43:15C-5.]

Notably, the statutory language of the DCR Program does not expressly address

employee claims against an employer for lost interest or investment income

resulting from delayed enrollment, nor does it specify the procedure for seeking

redress in such cases.

The law and court rules are also clear in directing that administrative

remedies must be exhausted before a party can bring an action in court. Rule

4:69-5 states:

Except where it is manifest that the interest of justice

requires otherwise, actions under [Rule] 4:69 [Actions

In Lieu Of Prerogative Writs] shall not be maintainable

as long as there is available a right of review before an

administrative agency which has not been exhausted.

A-3443-23

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The exhaustion of remedy requirement is "designed to allow

administrative bodies to perform their statutory functions in an orderly manner

without preliminary interference from the courts." Brunetti v. Borough of New

Milford, 68 N.J. 576, 588 (1975) (citing Ward v. Keenan, 3 N.J. 298, 302

(1949)). The New Jersey Supreme Court has explained:

The doctrine of exhaustion of administrative remedies

serves three major purposes: (1) the rule ensures that

claims will be heard, at least as a preliminary matter,

by a body possessing relevant expertise; (2) it allows

the creation of a factual record necessary for

meaningful appellate review; and (3) a favorable

agency decision may obviate the need for judicial

involvement.

[Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J.

549, 569 (1979) (Pashman, J., concurring) (citing Bd.

of Educ. of Bernards Twp. v. Bernards Twp. Educ.

Ass'n, 79 N.J. 311, 317 (1979)).]

The Appellate Division is vested with exclusive jurisdiction to review

final administrative agency decisions. See R. 2:2-3 and R. 2:2-4; N.J. Election

L. Enf't Comm'n v. DiVincenzo, 451 N.J. Super. 554, 568-69 (App. Div. 2007).

When a party fails to exhaust their administrative remedies by appealing a final

agency decision to the Appellate Division, their claims must generally be

dismissed. Riggs v. Twp. of Long Beach, 101 N.J. 515, 525 (1986) (discussing

"the general rule that courts should not entertain an action at law 'as long as

A-3443-23

17

there is available a right of review before an administrative agency which has

not been exhausted'" (citing R. 4:69-5)); K. Hovnanian Cos. of N. Cent. Jersey,

Inc. v. N.J. Dep't of Env't Prot., 379 N.J. Super. 1, 10 (App. Div. 2005)

(upholding the dismissal of a complaint for failure to exhaust administrative

remedies). But see Columbia Fruit Farms, Inc. v. Dep't of Cmty. Affs., 470 N.J.

Super. 25, 36 (App. Div. 2021) (explaining that "the Supreme Court has noted

'that the preference for exhaustion of administrative remedies is one of

convenience, not an indispensable pre-condition.'" (quoting Abbott v. Burke,

100 N.J. 269, 297 (1985)) (internal quotation marks omitted)).

Moreover, when the time for filing an appeal from a final agency decision

has expired, the decision by the agency becomes final and is not subject to

further review. R. 2:4-1(b) (explaining that "[a]ppeals from final decisions or

actions of state administrative agencies or officers . . . shall be taken within

[forty-five] days from the date of service of the decision or notice of the action

taken"); Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (stating that

"[w]here the appeal is untimely [under Rule 2:4-1], the Appellate Division has

no jurisdiction to decide the merits of the appeal" (quoting In re Hill, 241 N.J.

Super. 367, 372 (App. Div. 1990)) (internal quotation marks omitted)).

A-3443-23

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In this matter, plaintiffs are seeking damages related to their delayed

enrollment in the DCR Program. Their exclusive remedy was an administrative

remedy before the Division and Trustees. Because plaintiffs did not appeal the

Trustees' final agency decision, they have no right to collaterally attack that

decision and seek a remedy in the Law Division. See D.G. ex rel. J.G. v. N.

Plainfield Bd. of Educ., 400 N.J. Super. 1, 16 (App. Div. 2008) (holding that the

Law Division lacked jurisdiction from the outset to hear an appeal from an

administrative agency decision (citing R. 2:2-3(a)(2))).

Plaintiffs argue that they should have a legal remedy because there is no

administrative remedy. See Musconetcong Watershed Ass'n v. N.J. Dept. of

Env't Prot., 476 N.J. Super. 465, 479 (App. Div. 2023) (explaining that the

doctrine of exhaustion of administrative remedies "is not absolute and

'[e]xceptions are made when the administrative remedies would be futile'"

(quoting Griepenburg v. Twp. of Ocean, 220 N.J. 239, 261 (2015)) (internal

quotation marks omitted)). That argument as applied to the DCR Program,

however, is tautological and inconsistent with the statute and regulations

governing the DCR Program. The Trustees ruled that the governing statute did

not authorize them to require the Board to pay for alleged lost interest or

investment income. That ruling is not before us on appeal. In other words, that

A-3443-23

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ruling became final when plaintiffs did not file a timely appeal from the Trustees'

final agency decision to this court.

That plaintiffs do not have an administrative remedy does not mean they

have some other legal or equitable remedy that can be given by a court. In that

regard, plaintiffs do not contend that the CBA provides them with any legal

rights or remedies. Further, they acknowledge that collective agreements

involving public employees do not allow for contractual provisions governing

public employee pension rights. See State v. State Supervisory Emps. Ass'n, 78

N.J. 54, 83 (1978) (stating that "[t]he Legislature has determined that the entire

subject matter of public employee pensions is to be insulated from negotiated

agreement which would contravene or supplement its comprehensive regulation

. . . "); In re Morris Sch. Dist. Bd. of Educ., 310 N.J. Super. 332, 339-40 (App.

Div. 1998) (explaining that "[p]ublic employees and employee representatives

may neither negotiate nor agree upon any proposal that would affect the subject

of employee pensions"); N.J.S.A. 34:13A-8.1.

Instead, plaintiffs allege that they have individual contracts, separate and

apart from the CBA, which give them a contractual right to recover damages due

to their delayed enrollment in the DCR Program. The flaw with that argument

is twofold. First, plaintiffs have not identified and never produced the alleged

A-3443-23

20

individual contracts. In other words, plaintiffs have not presented sufficient

evidence to establish the existence of any individual agreements with

defendants. See Troy v. Rutgers, 168 N.J. 354, 358 (2001) (noting that the

plaintiffs were required to present sufficient evidence of the existence of their

alleged individual agreements). Accordingly, we reject plaintiffs' argument that

they should be permitted more time to produce the contracts.

Moreover, like collective agreements, individual employment contracts

with public employees cannot include provisions that govern or alter public

employee pension rights. See In re Morris Sch. Dist. Bd. of Educ., 310 N.J.

Super. at 339. In this regard, we have recently explained:

"[P]ension statutes are 'remedial in character' and

'should be liberally construed and administered in favor

of the persons intended to be benefited thereby.'"

Klumb v. Bd. of Educ. of Manalapan-Englishtown

Reg'l High Sch. Dist., 199 N.J. 14, 34 (2009) (quoting

Geller v. N.J. Dep't of Treasury, 53 N.J. 591, 597-98

(1969)). "However, '[i]n spite of liberal construction,

an employee has only such rights and benefits as are

based upon and within the scope of the provisions of

the statute.'" Francois v. Bd. of Trs., Pub. Emps.' Ret.

Sys., 415 N.J. Super. 335, 349 (App. Div. 2010)

(alteration in original) (quoting Casale v. Pension

Comm'n of Emps.' Ret. Sys. of Newark, 78 N.J. Super.

38, 40 (Law Div. 1963)).

[Caucino v. Bd. of Trs., Tchrs.' Pension & Annuity

Fund, 475 N.J. Super. 405, 412-13 (App. Div. 2023)

(citations reformatted).]

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21

As already discussed, the statute and regulations governing the DCR

Program vest the director of the Division, or plan administrator, with "full power

and discretionary authority to construe and interpret the provisions of the [DCR]

Program . . . and to adjudicate claims thereunder." N.J.A.C. 17:6-20.9.

Accordingly, plaintiffs cannot argue that their alleged individual agreements

somehow broaden their rights under the statute and allow them to pursue their

claims for lost interest or investment income before the Law Division.

III.

Having held that plaintiffs' sole remedy was administrative, and because

the Trustees have ruled there is no statutory right to the alleged lost interest or

investment income, all the parties' other arguments are moot. See Gannett

Satellite Info. Network, LLC v. Twp. of Neptune, 467 N.J. Super. 385, 398

(App. Div. 2021) (explaining that an issue is moot when a decision "can have

no practical effect on the existing controversy"), aff'd as modified, 254 N.J. 242

(2023).

IV.

In summary, we affirm the portion of the June 7, 2024 order that denied

plaintiffs' motion to reinstate their complaint. We reverse the order that denied

the Board's motion to dismiss plaintiffs' complaint with prejudice. We remand

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and direct the Law Division to enter an order dismissing plaintiffs' complaint

with prejudice.

Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.

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