On appeal from The Public Employment Relations Commission.
Michels, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c. (temporarily assigned).
CONLEY, J.S.C. (temporarily assigned).
This appeal arises from a determination by the Public Employment Relations Commission (PERC) on a scope of negotiations petition filed by the Rutgers Council of AAUP Chapters (AAUP) pursuant to N.J.S.A. 34:13A-5.4d. The petition sought a determination on numerous proposed contract provisions affecting
Article XIV of the 1986-1989 collective negotiations agreement between the parties which the AAUP sought to negotiate for the successor contract. That Article governs faculty evaluations, promotions and reappointments. PERC determined all of the proposals were procedural and, therefore, mandatorily negotiable. On appeal Rutgers seeks reversal as to eleven of those proposals. We conclude PERC mistakenly mandated negotiations on seven of the proposals under the guise of "procedure" and, thus, reverse in part and affirm in part.
Reappointments and promotions at Rutgers for teaching and research faculty are based on an evaluation of the individual faculty member's teaching, scholarship and service record. Promotion from assistant professor to associate professor conveys tenure and once a faculty member has attained the position of associate professor, Rutgers no longer has the freedom to dismiss, except for specific reasons outlined in University regulations. The evaluation process for promotions and reappointments then is critical to the University's goal of excellence in the quality of its faculty and its overriding concern for quality of education offered its students.
This evaluation process is set forth in the University's Academic Reappointment/Promotion Instructions. In order to assure an effective and accurate evaluation of each individual candidate, the University has implemented a system utilizing several levels of evaluation, referred to as a "hierarchical" peer review process. There are three levels of review: the department; the dean, and the Promotion Review Committee. The latter is a University-wide committee of four senior scholars and three campus provosts. Following this evaluation process, the president will then make a final recommendation to the Board of Governors. The Promotion Instructions specify the composition of each review level, the role of each particular evaluator or evaluative body, and the manner of participation in the process.
At the department level, the department chair initiates recommendations for faculty appointments, reappointments or promotions. A reading committee provides the department with an assessment of the candidate's scholarly achievement, but not a recommendation for promotion. After review at the department level, the promotional packet for the individual candidate, consisting of a collection of materials compiled and used in the evaluation of the candidate, is forwarded along with the recommendation by the department chair to the Advisory Committee on Appointments and Promotions. This Committee is advisory to the dean. Following the recommendations of both the department and the Committee, the dean makes his or her independent recommendation.
If the department's recommendation and the dean's recommendation are negative, the dean is the final level of evaluation. The department's recommendation is negative when less than two-thirds of those voting support the candidate. The votes include positive, negative and abstentions. Abstentions are not counted as positive votes.
The department chair serves as the department representative and may be asked by the Advisory Committee to amplify the department's report. The chair also meets with the dean to discuss the proposed action where the dean intends to make a recommendation different from that of the department. The chair is also responsible for providing notice to the candidates, compiling the necessary materials for evaluation and preparing and certifying the evaluation forms.
The Promotion Instructions contain forms to be used in connection with the evaluation of a candidate for reappointment or promotion. Form No. 4 is the "Narrative Summary of Departmental Recommendation." It calls for separate evaluations in narrative form for the criteria of teaching, scholarship and service. Page two of the form calls for recording the recommendation of the department and reporting the number eligible to vote, the number voting "yes," the number voting
"no," and the number abstaining. There is a similar form for the dean's recommendation. The evaluation of the departmental Reading Committee is recorded in narrative form, as are the evaluations by the dean, the Advisory Committee on Appointments and Promotions and the Promotion Review Committee.
With respect to participation in the process by the candidate, the Instructions provide various forms of input. For instance, Section E states:
The department chairperson shall provide the faculty member with a signed and completed Recommendation Information Form. Within five days of its receipt, the faculty member will sign and return the Form to indicate concurrence with its content, or, if there is a dispute between the faculty member and the chairperson as to the content of the Form which they are unable to resolve, the faculty member shall so indicate in the space provided above his/her signature attaching an explanation to the Form.
At the time the faculty member submits a signed Recommendation Information Form, he/she shall submit to the department chairperson two copies of any documents or materials he/she wishes to have considered. A list, compiled by the faculty member, of the documents submitted to the chairperson shall be attached to the promotion packet. It shall be the responsibility of the chairperson to circulate that list and all documents or materials submitted by the candidate, together with any other relevant material to the appropriate reviewing bodies.
The candidate may suggest potential outside evaluators and may discuss with his/her department chairperson qualified persons from whom letters may be solicited. The candidate, in addition, may prepare a list of persons in his/her field from whom he/she prefers letters of evaluation not be solicited. The candidate shall provide a written explanation for the exclusion of each person on that list. If a letter of evaluation is solicited from an individual on the candidate's not for solicitation list, the candidate's written explanation shall be attached to the individual's letter of recommendation. A department chair or dean may, at his/her discretion, also attach an explanation for his/her decision to solicit a letter from the individual. Such attachments, whether prepared by the candidate, the department chairperson, or the dean, shall be held, like the letters to which they refer, in confidence.
If the faculty member wishes to include a lengthy unpublished manuscript and requires copying services, he/she may contact the Associate Dean for Administration, Law School, Newark; the Associate Dean for Student Life, Camden; or the Business Manager, Faculty of Arts and Sciences, New Brunswick at least 30 days prior to the date on which copies are needed . . . .
Confidential letters of evaluation may be submitted pursuant to Section F which provides in part:
A minimum of five external confidential letters of evaluation from qualified persons shall be solicited by the candidate's department chair and/or by the candidate's dean. All letters solicited in regard to this candidacy must be included in the promotion packet and forwarded by the department chair for consideration by the appropriate tenured faculty. Unsolicited letters and letters from within the University are not included within this category.
Prior to the solicitation of external letters, the department chair shall submit to the dean a recommended list of referees for each candidate, accompanied by a clear explanation of the suitability of the referee, the relationship of the referee to the candidate and his/her field of study, and documentation demonstrating the referee's professional standing. The department chair shall make available to the dean any list submitted by the candidate of persons from whom he/she prefers letters not be solicited. Chairs, in developing lists of appropriate referees to submit to the dean, shall consult the candidate about appropriate experts in his/her field of study, but the selection of external referees must be made by the department chair and dean. The dean will select from among the referees proposed by the department chair, and add any additional referees he/she deems necessary. In conducting his/her evaluation of the candidacy as set forth in Section L. below, the dean, at his/her discretion, may solicit letters from additional external referees.
Moreover the Instructions provide for additions to the promotional material and a candidate's ability to rebut or respond to material added during the evaluation process. Thus, section H states:
If any document or documents, other than confidential outside letters of recommendation, the official reappointment/promotion forms, continuation pages added to these forms as described in these instructions, reports of reading committees, supplements to confidential letters (Section E, paragraph 3), and materials submitted by the candidate, are added to the promotion packet by an evaluative body, a copy of said document(s) shall be transmitted immediately to the candidate; the candidate shall have the right to submit a response or rebuttal within five (5) working days. The response shall be directed to that level of the evaluation at which the added document was received and shall become a part of the promotion packet. Any documents that are (1) physically present during the evaluation and (2) specifically referred to during the deliberations of the evaluative body and (3) which a majority of the evaluative body agrees have a direct bearing on the evaluation must be added to the packet in accordance with this procedure.
Subsequent to the commencement of the evaluation and prior to January 25, the department chairperson shall, upon request of the candidate, add to the packet evidence of a significant change in the status of materials originally submitted by the candidate if: 1) the chairperson concurs that a significant change has occurred; and 2) such change has occurred since the initiation of the evaluation. If there is a dispute between the candidate and the chairperson as to whether a significant change has occurred in the status of materials
originally submitted by the candidate, the Office of the Provost shall make the final determination as to whether evidence of the change shall be added to the packet.
Such additions to the packet, as provided above, shall, in all instances, be submitted to the level or review at which the candidate is then being evaluated. However, if the addition occurs on or before December 4, the addition to the packet shall also be circulated to each earlier level of review so that each earlier level may revise its evaluation should it deem such revision warranted by the addition. If the addition occurs after December 4, but on or before January 25 it shall not be circulated to any earlier level of review, except the dean and the Promotion Review Committee. The dean and/or the Promotion Review ...