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Burlington County College Faculty Association v. Burlington County College

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,
v.
BURLINGTON COUNTY COLLEGE, RESPONDENT-RESPONDENT.



On appeal from the Burlington County College Board of Trustees.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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