April 7, 2010
BURLINGTON COUNTY COLLEGE FACULTY ASSOCIATION ON BEHALF OF ITS MEMBERS, INCLUDING BUT NOT LIMITED TO INDIVIDUALLY NAMED PETITIONERS JONATHAN ALEXANDER, PATRICIA COHILL, BRINA FRIEDMAN, ALAN HART, MENG HAS, GITA NARASIMHAN, DIANE SCHELLACK, TERRENCE SHERLOCK, PATRICK SLAVIN, DONNA VANDERGRIFT, DIANE VENEZIALE, STEPHEN WEISSMAN, WILLIAM WHITFIELD, JAYNE YANTZ, AND MARK ZAMKOTOWICZ, PETITIONERS-APPELLANTS,
BURLINGTON COUNTY COLLEGE, RESPONDENT-RESPONDENT.
On appeal from the Burlington County College Board of Trustees.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2010
Before Judges Carchman and Parrillo.
Petitioners-appellants are the Burlington County College Faculty Association (BCCFA) and some of its individual members who were employed by respondent, Burlington County College (the College) for more than five years and a day as teaching faculty in the job title of Lecturer or in the job title of Lecturer and then Instructor (hereinafter, Lecturers). They appeal from the College Board of Trustee's (the Board) decision that the College did not err by denying tenure rights to the Lecturers as they did not hold a position with academic rank under N.J.S.A. 18A:60-7 and -8 of the State and County College Tenure Act (Act), N.J.S.A. 18A:60-6 to -15. Petitioners argue that the College, by continuing their employment, effectively converted the temporary position of Lecturer into a tenure-eligible position under N.J.S.A. 18A:60-8, and therefore, that the Board erred in denying them tenure because they fulfilled the temporal requirements for attaining that status.
Specifically, petitioners contend:
I. THE HEARING OFFICER'S EVIDENCE-BASED FACTUAL FINDING THAT THE INDIVIDUAL PETITIONERS WERE PERFORMING THE SAME JOB AS INSTRUCTORS STANDS UNDISTURBED AND PROVIDES THE BASIS UPON WHICH THIS COURT SHOULD DECLARE THAT THE PETITIONERS ARE ENTITLED TO TENURE IN THE POSITION OF INSTRUCTOR.
II. THE COLLEGE ERRED BY CONCLUDING AS A MATTER OF LAW THAT THE INDIVIDUAL PETITIONERS HAD TO BE FORMALLY APPOINTED TO THE TITLE OF "INSTRUCTOR" TO BE ELIGIBLE FOR TENURE UNDER N.J.S.A. 18A:60-8
III. THE PROCEDURES AND THE CIRCULAR APPEAL PROCESS CREATED BY N.J.S.A. 18A:3B-6(f) AND AS APPLIED HERE DEPRIVE PETITIONERS OF PROCEDURAL AND ADMINISTRATIVE DUE PROCESS.
We find none of these contentions persuasive and therefore affirm.
Briefly, by way of background, petitioners filed a petition with the College contesting its failure to confer tenure rights on them after they had worked in a full-time, instructional capacity for more than five years and a day under N.J.S.A. 18A:60-8. The College, after filing its answer, rejected petitioners' request that the matter be transmitted to the Office of Administrative Law (OAL) and appointed a hearing officer instead.
At the hearing, numerous witnesses presented testimony that as Lecturers their duties were the same as those of Instructors and other faculty members, including preparing course syllabi, creating and administering exams/quizzes, evaluating student academic progress, grading, scheduling office hours, performing registration duties, attending graduation ceremonies, and preparing lectures. Some of the Lecturers had been appointed to the position of Instructor after they submitted portfolios, usually in their fourth year, and that upon such a portfolio review they believed the options were to be terminated, continue as Lecturers, or be appointed as Instructors. Dr. Timothy Oberlin Patschke, Vice President for Academic Programs, testified that to move to the Instructor position with academic rank there must be evidence of continuing and significant contributions to the operation of the institution over a period of time. Additionally, the Board's Policy Number 104, provides "the Board of Trustees has a legal obligation to maintain a balance between tenured and non-tenured faculty members to maintain institutional flexibility and is required to use a standard of excellence in selecting faculty members to receive a reappointment including the conferral of tenure."
In his initial decision, the hearing officer found "little evidence of differentiation between the qualifications of Instructors and Lecturers for hiring, the academic load, salary, requirements for curriculum development and committee participation, or requirements for community service." The hearing officer also found, however, "that the title 'lecturer' does not hold academic rank as stated in N.J.S.A. 18A:60-7a" and that the Lecturer position had been "negotiated in good faith by both parties [who] agreed that it would not be a tenure[-] bearing title and it was borne out by language which explicitly limited annual re-appointments to a total of 'thirty-six months for the life of the individual'" as to "avoid approaching the threshold whereby tenure could become an issue."
Thus, the hearing officer found that all candidates for appointment to the position of Lecturer were aware that the position was non-tenured and accepted the position without complaint, and further found "[n]o evidence... [that the]... College manipulated titles to circumvent the statutes governing tenure." Despite these findings, however, the hearing officer never resolved the critical questions whether petitioners occupy tenure-eligible positions and whether they acquired tenure under N.J.S.A. 18A:60-8. Instead, the initial decision recommended both the BCCFA and the Board "jointly seek either a court or legislative determination to see if the Higher Education Restructuring Act [of 1994, N.J.S.A. 18A:3B-1 to -36,] allows the community college boards of trustees wide enough discretion to create a new title that does not gain tenure."*fn1
Following exceptions filed by both parties, the Board issued its final decision, squarely deciding the issue and finding petitioners not eligible for tenure because none was appointed to a position conferring academic rank. It based its decision on "the broad powers delegated to a community college to hire persons for teaching positions that are not tenure-eligible"; petitioners' "lack of academic rank in accordance with N.J.S.A. 18A:60-7a"; and "the absence of manipulation of titles[.]" The Board found that the College utilized its discretion in hiring petitioners as Lecturers, and thus "the Petitioners did not demonstrate that the challenged action or determination was clearly erroneous or factually contrary to law or College policy, or otherwise arbitrary, capricious, or unreasonable."
Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). "It is well settled that the appropriate standard of review to be applied by an appellate court reviewing the final decision of an administrative agency is for the court to examine the record to determine whether sufficient or substantial credible evidence exists therein to support the agency decision." Dore v. Bd. of Educ. of the Twp. of Bedminster, 185 N.J. Super. 447, 453 (App. Div. 1982). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985).
It is also well-settled that, given their specialized expertise, great deference is accorded the determinations of administrative agencies. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). In this regard, "an administrative agency's 'interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable[,]'" Shim v. Rutgers-State University of New Jersey, 385 N.J. Super. 200, 205 (App. Div. 2006)(quoting Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 327 (1984)), aff'd, 191 N.J. 374 (2007), or "manifestly mistaken." Ibid. (quoting L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995)(internal citations omitted)).
N.J.S.A. 18A:64A-12, entitled "General powers of the board", grants the board of trustees of a county college, in addition to such other powers expressly granted to it by law, numerous powers including the ability to sue and be sued, determine the educational curriculum, and grant diplomas and degrees. See Warren County Cmty. College v. Warren County Bd. of Chosen Freeholders, 176 N.J. 432, 441 (2003). Subsection (f) provides the Board with the power "[t]o appoint, upon nomination of the president, members of the administrative and teaching staffs and fix their compensation and terms of employment subject to the provisions of N.J.S.18A:64A-13[.]" Further, subsection (g) of N.J.S.A. 18A:64A-12 empowers the Board "[t]o appoint or employ, upon nomination of the president, such other officers, agents and employees as may be required to carry out the provisions of this chapter and to fix and determine their qualifications, duties, compensation, terms of office and all other conditions and terms of employment and retention[.]"
Tenure, as a term and condition of employment, Spiewak v. Rutherford Bd. of Ed., 90 N.J. 63, 72 (1982), attaches only on compliance with the precise conditions articulated in the relevant legislative enactment. Merlino v. Borough of Midland Park, 172 N.J. 1, 8 (2002); see also Picogna v. Board of Educ., 143 N.J. 391, 400 (1996). "Compliance must be absolute and deviations from the statutory methodology can affect entitlement to tenure." Merlino, supra, 172 N.J. at 8 (citing DeStefano v. Washington Tp., 220 N.J. Super. 273, 278 (Law Div. 1987)).
Tenure applicable to county colleges is governed by N.J.S.A. 18A:60-8, entitled "Tenure in academic rank," which provides:
Faculty members shall be under tenure in their academic rank... during good behavior, efficiency and satisfactorily professional performance, as evidenced by formal evaluation and shall not be dismissed or reduced in compensation except for inefficiency, unsatisfactory professional performance, incapacity or other just cause... after employment in such college or by such board of trustees for
a. 5 consecutive calendar years; or
b. 5 consecutive academic years, together with employment at the beginning of the next academic year; or
c. the equivalent of more than 5 academic years within a period of any 6 consecutive academic years.
"Academic rank" is defined as "mean[ing] instructor, assistant professor, associate professor and professor." N.J.S.A. 18A:60-7a. "Faculty member" is further defined as "any full-time member of the teaching staff appointed with academic rank."
While tenure laws have a remedial purpose and thus should be liberally construed, Dugan v. Stockton State College, 245 N.J. Super. 567, 573 (App. Div. 1991) (citing Spiewak, supra, 90 N.J. at 72, 74), in interpreting a statute, our goal, first and foremost, "is to ascertain the intent of the Legislature with reasonable certainty." No Illegal Points, Citizens for Driver's Rights, Inc. v. Florio, 264 N.J. Super. 318, 323 (App. Div.), certif. denied, 134 N.J. 479 (1993). "[T]he starting point is the language of the statute itself. If the language is clear, 'the sole function of the courts is to enforce it according to its terms.'" Velazquez v. Jiminez, 172 N.J. 240, 256 (2002)(quoting Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392 (2001)(internal citations omitted)). "All terms in a statute should be accorded their normal sense and significance." Ibid. (citing Stryker Corp. v. Dir., Div. of Taxation, 168 N.J. 138, 156 (2001)). The Legislature "is deemed to have intended what it wrote and the Court may not construe a contrary concept." Pine Belt Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993) (internal citation and quotations omitted).
Here, the statute is clear that to be tenure-eligible, the faculty member must be "in academic rank" upon completion of five "consecutive calendar years." N.J.S.A. 18A:60-8. Because petitioners were not appointed with academic rank and thereafter served for the statutory period of time, they do not meet the statutory prerequisites to qualify for tenure.
Petitioners nevertheless argue that because they work in an instructional capacity and occupy positions that are the functional equivalent of that of Instructor, upon which tenure is conferred, they are equally entitled to tenure. Petitioners rely on Dugan, in arguing that job function, and not title, is dispositive of the tenure determination. We find Dugan to be distinguishable.
In Dugan, a college employee, Penelope Dugan, who was originally appointed to the academic rank of Instructor when she was first employed in 1976, had been denied tenure after her thirteen-year employment because for four of those years, she was given a non-academic title, even though she contended her job responsibilities remained continuously "academic in nature." 245 N.J. Super. at 570-73. We remanded to the State Board of Higher Education for factual findings as to Dugan's actual work duties, id. at 575, rejecting the reasoning of the Administrative Law Judge (ALJ) that "the particular duties she performed in those years when she was given a 'non-academic' title count for nothing." Id. at 573.
Unlike petitioners here, however, Dugan had been initially appointed to the position of Instructor, which confers academic rank, and only after five years, beginning in 1980-81, signed a contract for a series of one-year terms in an "unclassified staff position." Id. at 570. Moreover, the college's action in Dugan in assigning the employee to a staff title while maintaining her full-time teaching load clearly suggested a manipulation of titles in a deliberate attempt to circumvent the tenure statutes. Id. at 573 (Tenure statutes "should not be interpreted to permit avoidance of tenure by manipulation of job titles.")
In contrast here, petitioners were never members of the teaching staff appointed with academic rank. N.J.S.A. 18A:60-7. Furthermore, there is no indication whatsoever of any manipulation of titles, and petitioners were unquestionably aware, prior to accepting employment, that the position of Lecturer was not tenure-eligible.
As the Public Employee Relations Commission (PERC) has acknowledged, the statutory scheme for tenure acquisition "contemplates that disputes over whether an individual is tenure-eligible will be decided not by a negotiated agreement, but by a college's board of trustees applying N.J.S.A. 18A:60-8." Burlington County Coll. v. Burlington County Coll. Faculty Ass'n, P.E.R.C. No. 2004-71 at 8-9 (April 30, 2004). Pertinent here, N.J.S.A. 18A:64A-12(f) and (g) operate as a broad grant of authority to the Board in the hiring context to meet the College's operational needs and to fix terms and conditions of employment. Through the latter, the Board is better able to effectuate the policy goal of maintaining a balance between tenured and non-tenured faculty. Thus, N.J.A.C. 9A:7-3.1 specifically provides:
In order to maintain the flexibility of the institution to respond to the changing educational needs of future generations of students, each college board of trustees shall take appropriate steps to achieve a future balance of the proportion of faculty ultimately tenured. The board of trustees shall annually monitor the projected proportion of tenured faculty and the progress being made to achieve the institutional goal of limiting the proportion of tenured faculty.
Additionally, the Board is authorized to establish: internal policies which indicate that it will impose either specific restrictions or more intensive and rigorous review procedures for any reappointment conferring tenure which brings the proportion of individuals in a department (or other major academic sub-unit) or in the college as a whole above the level deemed necessary by the board of trustees to maintain an appropriate balance between tenured and non-tenured faculty. [N.J.A.C. 9A:7-3.2(a).]
These statutory and regulatory provisions make clear that the Board was well within its power to hire petitioners in the non-academic rank of Lecturer. Having knowingly accepted such non-tenure-track employment, petitioners cannot be heard to argue otherwise now. Accordingly, the Board's decision that petitioners are not entitled to tenure under N.J.S.A. 18A:60-8 because they were not appointed to, and have not served for five consecutive years in a position of academic rank is not arbitrary, capricious, or unreasonable.
Nor is this decision the result of an unfair process, as petitioners argue, simply because the matter proceeded before an independent hearing officer rather than the OAL. Under N.J.S.A. 18A:3B-6(f), petitioners were entitled to a hearing before either the OAL, a hearing officer, or a committee of the College, in accordance with the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -25. Again, upon receipt of the Lecturers' petition, the College elected to appoint a hearing officer rather than opt for an OAL hearing. We discern no error in this choice.
"It is axiomatic that fundamental concepts of administrative due process require that the basis of agency action be spelled out by specific findings of fact supported by the record as a whole. A necessary corollary of this principle is that the ultimate finder of fact must read and consider all of the evidence presented." Rowley v. Bd. of Educ., 205 N.J. Super. 65, 75 (App. Div. 1985). "[T]he mere fact that the administrative agency has investigated the matter in question does not render it or its members incompetent, consistent with due process, to adjudicate the case as presented at the evidentiary hearing." In re Bd. of Educ. of Trenton, 176 N.J. Super. 553, 565-66 (App. Div. 1980)(quoting Rite Aid Corp. v. Bd. of Pharmacy of State of N.J., 421 F. Supp. 1161, 1177 (D.N.J.1976), app. dismissed, 430 U.S. 951, 97 S.Ct. 1594, 51 L.Ed. 2d 801 (1977)), aff'd, 86 N.J. 327 (1981). "The wisdom of creating an agency with a responsibility for both initiating and adjudicating a proceeding is a legislative function, and not a judicial one." In re Info. Res. Corp., 126 N.J. Super. 42, 52 (App. Div. 1973).
Here, there was observance of the traditional safeguards against arbitrary action and the fundamental requisites of due process of law. Petitioners were afforded notice, representation by counsel, a hearing conducted by an independent factfinder appointed in accordance with law, N.J.S.A. 18A:3B-6(f), the opportunity to present evidence, the ability to develop a record for appeal, and the right to appeal, which they have fully exercised. In short, they were accorded all the administrative process due.