On appeal from final action of the New Jersey State Board of Higher Education.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Matthews, P.J.A.D.
This appeal involves the validity of regulations enacted by the New Jersey State Board of Higher Education (hereafter Board) governing uniform procedures for reductions in the work force at the state colleges which may be necessary because of fiscal exigency.
The regulations adopted by respondent Board, we are informed, constitute the first comprehensive and uniform policy applicable at the eight state colleges for reducing the number of employees, determining appropriate layoff units and establishing reemployment rights at any of the institutions in the event of a fiscal emergency. We are advised by the Attorney General that the need for such a policy, addressed to the educational and academic needs of the entire state college community, has become pressing in recent years due to the escalating operating costs of the institutions. Because a state of fiscal exigency does not presently exist at any of the state colleges, the Board considered this an appropriate time to plan for such an eventuality.
The regulations enacted by the Board represent a comprehensive attempt "to preserve academic integrity of the institutions while respecting the rights of the individual [employees] involved" in the event of a fiscal exigency at any of the state colleges. This is accomplished by establishing a process for determining and declaring a fiscal emergency and preparing and implementing a plan for meeting the crisis, N.J.A.C. 9:2-3.1, -3.2; by offering a framework to guide the Board in deciding how to reduce expenses while still maintaining the academic integrity of the college, N.J.A.C. 9:2-3.5; by requiring consideration of alternatives other than layoffs, N.J.A.C. 9:2-3.2; by demanding that any layoffs which do result "be based on academic or administrative considerations" and that programs and functions of major instructional or administrative importance be protected, N.J.A.C. 9:2-3.5; by requiring consideration of possible impacts on affirmative action, N.J.A.C. 9:2-3.4; by calling for consultation with the college community before formulating any plans to allow input from those who may be affected, N.J.A.C. 9:2-3.3 by providing notice to the bargaining unit's representative and fulfillment of agreed-upon contractual obligations, N.J.A.C. 9:2-3.5, and by requiring notice of staff reductions and efforts directed at the reemployment of those who are laid off, N.J.A.C. 9:2-3.6, -3.11. These procedures for declaring a fiscal exigency and reducing the work force have not been invoked by any of the state colleges.
The Council first argues that the regulations in question are materially intertwined with terms and conditions of employment and should have been negotiated prior to adoption. In support of this contention the Council presents various sub-arguments.
Council contends, first, that the preemption doctrine as set forth in State v. State Supervisory Employees Ass'n , 78 N.J. 54
(1978), is inapplicable to the present proceedings because the Department of Higher Education is an employer of the employees affected by the regulations. The Council particularly emphasizes that the Department has acted as an employer in its relationship with it in the areas of negotiation and grievance processing. It draws our attention to N.J.A.C. 9:2-5.5 and submits that the Board itself has determined that the Department serves an employer function. N.J.A.C. 9:2-5.5, in applicable part, provides:
(a) Employer. For purposes of collective negotiation on all economic issues and all issues determined by the employer to be applicable to all public institutions of higher education, the employer's representative is a Negotiating Committee comprised of representatives of the institution or institutions, the Department of Higher Education, and the office of the State Negotiator. On all other issues the employer's representative is the governing board of the public institution of higher education.
The Legislature has set up a comprehensive scheme giving the Board of Higher Education broad authority over the system of public higher education in this State. Thus, N.J.S.A. 18A:3-13 provides:
It shall be the duty of the board of higher education to advance long-range planning for the system of higher education as a whole in the state; establish general policy for the governance of the separate institutions; coordinate the activities of the individual institutions which, taken together, make up the system of higher education in New Jersey; and maintain general financial oversight of the state system of higher education. The board shall not administer the individual institutions of higher education, its own administration being specifically reserved unto each of such institutions.
Within the limitations imposed by general legislation applicable to all agencies of the state and the provisions of this chapter, the board is hereby granted exclusive jurisdiction over higher education in this state and its constituent parts and the requisite power to do all things necessary and proper to accomplish the aims and carry out the duties provided by law.
Also, N.J.S.A. 18A:3-14 provides in part that the Board of Higher Education shall:
h. Set policy on salary and fringe benefits, and establish general personnel policies for the public ...