2021-2022: Committee to write a Rostrum article to address first 2 resolved statements; potentially include resolution contact person on writing team. Efforts to address 1st 2 resolved statements could inform potential paper.
Whereas, Education Code section 87454 allows tenured faculty within a given district the right to retain their faculty tenure when assigned to an educational administrator position, while Education Code section 87458 states that educational administrators without faculty tenure have the right to become first-year probationary faculty provided all of the requirements of section 87458, commonly known as “retreat rights,” including the existence of a process reached by joint agreement between the representatives of the governing board and the academic senate and approved by the governing board and not subject to dismissal by the governing board under the provisions of Education Code section 87732;
Whereas, In its decision in Wong v. Ohlone College [1]the California Court of Appeals (First District, Division 3) ruled that the right of an educational administrator without faculty tenure to become a first-year probationary faculty is discretionary, not absolute, as articulated in the following passage from the appellate court decision:
Although statutory language is, of course, a most important guide in determining legislative intent, there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion. (Id. at pp. 910-911, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.) That a terminated administrator “shall havethe right to become” a first-year probationary faculty member, does not impose a mandatory duty on the college to make an appointment. Wong's argument ignores that part of the statute that conditions the appointment on the governing board making “a determination” by applying a new statutory procedure, or an existing procedure. (§ 87458, subds. (a), (b); see § 84755, subd. (b)(9).) The statutory reference to the governing board's determination strongly suggests that the Legislature did not intend to foreclose the college's exercise of discretion in deciding whether to deny or grant an appointment under section 87458. Had the Legislature intended to make a section 87458 appointment nondiscretionary, the Legislature could have clearly done so by requiring that an administrator “shall become” a first-year probationary faculty member if he or she meets certain statutory conditions.;
Whereas, Educational administrator retreat policies should be designed to do what is best for students, not what is best for a retreating administrator, including assuring that retreating administrators without faculty tenure go through a process that is at least as rigorous as and equivalent to a probationary faculty hiring process; and
Whereas, The Academic Senate paper Administrator Retreat Rights: An Introduction and A Model Procedure, adopted in 1990, is significantly outdated and needs to be replaced with a new paper that accounts for the significant changes in the legal and higher education landscapes that have occurred since 1990;
Resolved, That the Academic Senate for California Community Colleges assert that the right of educational administrators without faculty tenure to become first-year probationary faculty articulated in Education Code section 87458 is not an absolute right but rather at the discretion of the district governing board through the locally established policies and procedures per the requirements of Education Code section 87458 and in accordance with the 2006 appellate court decision in Wong vs. Ohlone College;
Resolved, That the Academic Senate for California Community Colleges assert that the requirement articulated in Education Code section 87458 that procedures for reassigning administrators without faculty tenure to faculty assignments “shall include reasonable procedures to ensure that the governing board relies primarily upon the advice and judgment of the academic senate to determine that the administrator possesses the minimum qualifications for employment as a faculty member” represents a minimum requirement for local administrative retreat policies, not the only requirement, and thus the methods used for evaluating the qualifications and readiness to serve as probationary faculty established through local hiring processes or other equivalent processes may be included in local administrator retreat rights policies; and
Resolved, That the Academic Senate for California Community Colleges draft a new paper by Spring 2022 on educational administrator retreat rights that includes a model policy that accounts for the 2006 appellate court decision in Wong vs. Ohlone College and any other relevant case law that may exist and that provides effective practices for assessing the needs for and provision of professional development for any educational
administrator seeking to retreat to a faculty assignment regardless of faculty tenure status within the district.
MSC
1. https://caselaw.findlaw.com/ca-court-of-appeal/1419242.html