                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
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     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    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 November 21, 2017

           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).
            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-upon-

hire     procedures.        PERC    held       the   Statute     did   not    preempt


                                           2                                  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

                                           3                                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 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 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)).


                                           4                                  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.

                                     5                              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 plainly-

written   enactment   of    the   Legislature   [or]    presume    that    the

Legislature intended something other than that expressed by way



                                     6                               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

                                            7                                   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

                                 8                         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

                                           9                                 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.




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