SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4948-15T3

IN THE MATTER OF 

STATE OF NEW JERSEY,

Petitioner-Appellant,

and

COUNCIL OF NEW JERSEY

STATE COLLEGE LOCALS, AFT,

Respondent-Respondent.

_____________________________

Argued October 24, 2017 – Decided

Before Judges Hoffman and Mayer.

On appeal from the New Jersey Public 

Employment Relations Commission, Docket No. 

SN-2015-031.

John J. Peirano argued the cause for 

appellant (McElroy, Deutsch, Mulvaney & 

Carpenter, LLP, attorneys; Mr. Peirano, of 

counsel and on the briefs; David M. Alberts,

on the briefs).

Kevin P. McGovern argued the cause for 

respondent Counsel of New Jersey State 

College Locals, AFT (Mets Schiro McGovern & 

Paris, LLP, attorneys; Mr. McGovern, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

November 21, 2017
2 A-4948-15T3

Don Horowitz, Senior Deputy General Counsel,

argued the cause for respondent New Jersey 

Public Employment Relations Commission

(Robin T. McMahon, General Council, 

attorney; Mr. Horowitz, on the statement in 

lieu of brief).

PER CURIAM

The State of New Jersey appeals from a September 24, 2015 

final agency decision issued by the Public Employee Relations 

Commission (PERC) determining that the development of procedures 

for tenure-upon-hire in accordance with N.J.S.A. 18A:60-16

(Statute) are negotiable, and not pre-empted. We affirm.

On March 31, 2014, the Council of New Jersey State College 

Locals, AFT (Council) filed a grievance on behalf of its union 

member alleging that eight State colleges and universities 

(Colleges) ignored demands to negotiate procedures for offering 

tenure-upon-hire to new faculty contrary to the collective 

negotiations agreement (CNA) between the State and Council.

The Council's grievance was denied by the New Jersey State 

Office of Employee Relations. The Council appealed the denial of 

its grievance and requested binding arbitration in accordance with 

the CNA. The State filed a petition for a scope of negotiations 

determination with PERC and sought to restrain arbitration,

arguing that the Statute preempted negotiation for tenure-uponhire procedures. PERC held the Statute did not preempt 
3 A-4948-15T3

negotiations and denied the State's request to restrain 

arbitration.

On appeal, the State argues: (1) the Statute preempts 

negotiation over tenure-upon-hire procedures; (2) PERC improperly 

relied on Bethlehem Township Board of Education v. Bethlehem 

Township Education Association, 91 N.J. 38 (1982); and (3) 

compelling negotiations for tenure-upon-hire procedures would 

impinge upon public policy determinations.

We first address the appropriate standard of review. The 

State argues that appellate review of PERC's scope of negotiations 

determination should be de novo because PERC's determination turns 

upon interpretation of a statute outside the scope of the agency's 

expertise. The Council counters that PERC's determination should 

be accorded substantial deference applicable to PERC's 

interpretation of its enabling legislation, including scope of 

negotiations determinations. See N.J.S.A. 34:13A-5.4(d). 

We are not "bound by [an] agency's legal opinions." A.B. v. 

Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340

(App. Div.), certif. denied, 200 N.J. 210 (2009) ("Statutory and 

regulatory construction is a purely legal issue subject to de novo 

review.") We need not accord deference where the statute that the 

agency interprets is beyond the agency's charge. See Commc'ns 

Workers, Local 1034 v. N.J. State Policemen's Benev. Ass'n, Local 
4 A-4948-15T3

203, 412 N.J. Super. 286, 291 (App. Div. 2010) ("PERC's 

interpretation of the law outside of its charge is entitled to 'no 

special deference.'") (quoting In re Camden Cty. Prosecutor, 394 

N.J. Super. 15, 23, (App. Div. 2007)). Where a scope of 

negotiations determination is guided by PERC's interpretation of 

a statute outside its area of expertise, as in this matter, PERC's 

decision is not entitled to any special deference and our review 

is de novo.

The Statute provides:

The board of trustees may, upon the hiring of 

a new faculty member, grant tenure to the 

member if he was previously under tenure at 

an accredited four-year institution of higher 

education. A State college shall develop 

procedures regarding the granting of tenure 

upon hiring to a new faculty member who was 

previously under tenure at an accredited fouryear institution that are consistent with 

decisions for tenure at the State college, and 

shall include faculty members in the 

development of the procedures.

[N.J.S.A. 18A:60-16(b).]

The State argues that tenure-upon-hire is statutorily preempted and therefore non-negotiable. A statute or regulation will 

preempt negotiability if it "fixes a term and condition of 

employment 'expressly, specifically or [,] and comprehensively.'" 

Bethlehem, supra, 91 N.J. at 44 (quoting Council of N.J. State 

Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 30 (1982)). 
5 A-4948-15T3

The statute or regulation must "speak in the imperative and leave 

nothing to the discretion of the public employer." State v. State 

Supervisory Emps. Ass'n, 78 N.J. 54, 80 (1978). "Where a statute 

sets both a maximum and a minimum level of employee rights or 

benefits, mandatory negotiation is required concerning any 

proposal for a level of protection fitting between and including 

such maximum and minimum." Id. at 82; see also Bd. of Educ. v. 

Fair Lawn Educ. Ass'n., 174 N.J. Super. 554, 558 (App. Div. 1980).

We agree with PERC that "the statute's language establishes 

no specifics with respect to tenure-upon-hire other than to require 

dialogue between administrators and faculty members. Whereas a 

preempting statute must be complete and shall say all that there 

is to be said, N.J.S.A. 18A:60-16(b), in contrast, does not." The 

plain language of the Statute is not so express and explicit 

regarding procedures for tenure-upon-hire that the Colleges are

left with no discretion and nothing to negotiate. We find the 

express language of the Statute requires negotiations regarding 

tenure-upon-hire procedures. See State Supervisory Emps. Ass'n, 

supra, 78 N.J. at 82 (setting of guidelines in a statute does not 

preclude negotiations for terms that fit within those guidelines). 

Next, the State argues that the Statute's reference to 

"faculty" precludes negotiations. This concept was expressly 

rejected by the Court in Bethlehem Township Board of Education v. 
6 A-4948-15T3

Bethlehem Township Education Association, 91 N.J. 38, 48 (1982). 

Contrary to the State's argument, the term in the Statute is 

"faculty members," not "faculty." The State's misreading of the 

Statute is significant because the Legislature specifically and 

unambiguously defined "faculty member" in the definition section 

of the State and County College Tenure Act, N.J.S.A. 18A:60-7. 

"[F]aculty member" "means any full-time member of the teaching 

staff appointed with academic rank. Other full-time professional 

persons shall be considered faculty members if they concurrently 

hold academic rank." N.J.S.A. 18A:60-7(b). 

Our role in interpreting the Statute is to "determine and 

give meaning to the Legislature's intent[,]" by first examining 

"the plain language of the statute, which is typically the best 

indicator of intent." In re Plan for Abolition of Council on 

Affordable Hous., 214 N.J. 444, 467 (2013). We give words their 

"ordinary, generally accepted meaning[,]" but when "the 

Legislature uses technical words and phrases that have 'a special 

or accepted meaning in the law,' we construe them 'in accordance 

with such technical or special and accepted meaning.'" Ibid.

(quoting N.J.S.A. 1:1-1). Courts will not "rewrite a plainlywritten enactment of the Legislature [or] presume that the 

Legislature intended something other than that expressed by way 
7 A-4948-15T3

of the plain language." Marino v. Marino, 200 N.J. 315, 329 (2009)

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

Because the Legislature defined the term "faculty member" as 

any full-time member of the teaching staff, we need not look beyond 

the expressed definition of that phrase. Therefore, we disagree 

that "faculty" is limited to faculty who serve in a collegial 

governance and managerial capacity and excludes faculty who serve 

in a union member capacity. 

We also reject the State's argument that PERC improperly 

relied on Bethlehem in determining that tenure-upon-hire 

procedures are negotiable. The Bethlehem case involved 

promulgating procedures for evaluating tenured teachers in 

accordance with regulations adopted by the local boards of 

education. Several teachers' unions demanded negotiations to 

establish procedures relating to tenured teacher evaluations. The 

school districts filed scope of negotiations petitions with PERC,

and the agency concluded that the regulations preempted 

negotiation. 

The Bethlehem Court disagreed and found that regulations 

requiring schools to develop procedures with respect to the 

evaluations did not preempt negotiation of those procedures. The 

Court reasoned, "[t]his is evidenced by the fact that the rules 

specifically leave to each local board the responsibility of 
8 A-4948-15T3

fleshing out the details of its program." Bethlehem, supra, 91 

N.J. at 46. The Court wrote:

In effect, the Boards ask us to turn a simple 

legislative requirement of consultation with 

teachers into a total ban on negotiations. 

The rule's "in consultation with" language 

establishes no specifics on teacher 

evaluation, other than to require a dialogue

between school administrators and teachers.

The effect of allowing such an open-ended 

regulation to preempt negotiation on this 

entire subject matter would be to give local 

boards carte blanche to establish whatever 

terms and conditions of employment it desired.

. . . . [A] regulation must speak 

comprehensively and in the imperative if it 

is to be given preemptive effect. This is 

because a regulation will preempt negotiation 

only if it leaves no room for discussion as 

to what is required of both the employer and 

the employee. Hence, a preempting regulation 

must be complete; it must say all there is to 

be said. This regulation, in contrast, does 

not. 

As we read this provision, it seems clear that 

the "in consultation with" language was 

intended to encourage discussion 

. . . . Therefore, rather than restricting 

the channels of communication, this provision 

actually requires discussion and, where 

appropriate, negotiation on the subjects of 

procedures for evaluating tenured teachers and 

the mechanism for discussing evaluation 

standards. 

[Id. at 47–48 (citations omitted).]

PERC cited extensively from the Bethlehem decision finding 

that the Statute did not preempt negotiations. Like the Bethlehem

case, the Statute gives a general guideline and directs the 
9 A-4948-15T3

Colleges to develop their own procedures with mandatory inclusion 

of faculty members. See N.J.S.A. 18A:60-16(b). Similar to the 

regulation in Bethlehem, the Statute refers only to procedures, 

and not to substantive determinations of hiring or tenure. The 

State's attempt to distinguish the Bethlehem case is misguided as 

the term "faculty" is not limited to members of the Colleges' 

governing body for the reasons we have stated. Nor are we 

persuaded by the State's argument that Bethlehem is 

distinguishable because the procedures in that case applied to 

current employees as opposed to prospective hires. The terms and 

conditions of employment for prospective employees are negotiable. 

See Belleville Ed. Ass'n v. Belleville Bd. of Ed., 209 N.J. Super.

93, 97 (App. Div. 1986) (establishing that initial placement on 

the salary scale for new hires is a term and condition of 

employment and is negotiable). The remainder of the State's 

arguments distinguishing the Bethlehem case are without sufficient 

merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Lastly, we reject the State's argument that compelling 

negotiations for tenure-upon-hire procedures would impinge upon 

public policy by interfering with the Colleges' managerial rights. 

See In re Local 195, IFPTE, 88 N.J. 393 (1982). As the Court 

recognized In re Local 195, "negotiation will always impinge to 

some extent on the determination of governmental policy. The 
10 A-4948-15T3

requirement that the interference be 'significant' is designed to 

effect a balance between the interests of public employees and the 

requirements of democratic decision making." Id. at 404 (citation 

omitted). The hypotheticals proffered by the State lack the 

requisite significant interference to deem tenure-upon-hire 

procedures non-negotiable. The State did not cite any authority 

deeming tenure-upon-hire procedures to be unique from procedures 

that affect terms and conditions of employment, including tenure, 

so as to be negotiable. See State Supervisory Employees Ass'n,

supra, 78 N.J. at 90-91 ("promotional criteria are not mandatorily 

negotiable while promotional procedures are so negotiable.")

We perceive no ambiguity in the Statute that requires us to 

reach beyond the plain language to determine its meaning. The 

Statute is straightforward and contemplates negotiations for 

adopting procedures relating to tenure-upon-hire.

Affirmed.