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 N o. SN - 2015
- 031 . John J. Peirano argued the cause for appellant ( McElroy, Deutsch, Mulvaney & Carpenter, LLP , attorneys ; Mr. Peirano , of counsel and on the brief s ; David M. Alberts , on the briefs). Kevin P. McGovern argued the cause for r espondent 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NOT FOR PUBLICATION WITHO UT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 4948
- 15T3 Don Horowitz , Senior Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commiss ion (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) deter mining that t he 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 grievan ce 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 a nd Council. The Council 's grievance was denied by the New Jersey State Office of Employee Relations. Th e Council a ppealed the denial of its grievance and request ed binding arbitration in accordance with
the CNA . T h e 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 - upon hire procedures. PERC held the Statute did not preempt3 A - 4948
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negotiations and denied the State's request to restrain arbitrat ion . 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 bec ause 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 legis lation , including scope of negotiations determinations. See N.J.S.A. 34:13A
- 5.4(d).
W e are not " bound by [an] agency's legal opinions." A.B. v. Div. of Med. Assistance & Health Servs. , 407 N.J. Super. 330, 3 40 (App. Div.) , certif. denied , 200 N.J. 210 (2009) ( " S tatutory and regulatory construction is a purely legal issue subject to de novo review. " ) W e 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 P olicemen's Benev. Ass'n, Local4 A - 4948
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203 , 412 N.J. Super. 286, 291 (App. Div. 2010) (" PERC's interpretation of the law outsid e 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 b oard 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 tenu re upon hiring to a new faculty member who was previously under tenure at an accredited four

year 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 pre

empted and therefore non
- negotiable. A statute or regulation will preempt negotiability if it "fixes a term and condition of employment 'expressly, specifically or [ , ] and com prehensively.'"
Bethlehem , supra , 91 N.J. at 44 (quoting Coun cil of N.J. State
Coll. Locals v. State Bd. of Higher Educ. , 91 N.J. 18, 30 (1982) ).5 A - 4948
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The statute or regulation must " speak in the imperative and leave nothing to the discretion of the public em ployer ." 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 b etween and inclu ding 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) . W e agree with PERC that "the statute's language establishes no specifics with respect to tenure

- upon - hi re 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." T he plain language of the Statute is no t 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
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Bethlehem Township Education Association , 91 N.J. 38 , 48 (1982).
C ontrary to the State's argument, the term i n the Statute is "faculty members," not "faculty." The St ate'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 S tatute is to " determine a nd 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 plainly

written enactment of t he Legislature [or] presume that the Legislature intended something other than that expressed by way7 A - 4948
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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 de fine d the term "faculty member" as any full
- time member of the teaching staff , we need not look beyond
the express ed definition of that phrase . Therefore, we disagree
that "faculty" is limited to faculty who serve in a collegial
governance and managerial capa city a nd exclude s 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 procedu res for evaluating tenured teachers in accordance with regulations adopted by the local b oard s of

e ducation. 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 neg otiation of those procedures. T he Court reasoned, "[t] his is evidenced by the fact that the rules specifically leave to each local board the responsibility of8 A - 4948
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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 consul t ation 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 emp loyer 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 enc ourage 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 the9 A - 4948
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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 distinguish able because the procedures in that case applied to current employees as opposed to prospective hires. Th e 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 distinguish ing 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). A s the Court recognized In re Local 195 , "negotiation will always impinge to some extent on the determination of governmental policy. The10 A - 4948
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requirement that the interference b e 'significant' is designed to
effect a balance betwe en 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
- negotiab le. T he 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 9 0
- 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 straightfo rward and contemplates negotiations for adopting p rocedures relating to tenure - upon - hire. Affirmed.