Community College Administrators’ Right to Become a First-Year Probation Faculty Member Is Not Absolute

The law office of Lozano Smith has issued a client news brief regarding a community college administrator’s statutory right to become a first-year probationary faculty member under Education Code Section 87458.

In Wong v. Ohlone College (2006) 137 Cal.App.4th 1379, the California Court of Appeals recently held that Education Code Section 87458 does not grant an administrator absolute rights to become a first-year probationary faculty member.

In March 2003, the plaintiff in the case was notified that he would not be reemployed as Dean for the 2003-04 school year. The plaintiff did not challenge the decision; however, he requested to become a first-year probationary faculty member for the next semester pursuant to Education Code Section 87458. The college denied the request on various grounds, indicating that there was no available faculty position to which the plaintiff could be appointed.

The plaintiff sought to compel his appointment as a faculty member by filing a lawsuit. The trial court found that the plaintiff’s rights to an appointment is not absolute under Section 87458, holding that there had to be a position available to which the college could appoint him. The plaintiff appealed; however, the Court of Appeal affirmed the lower court’s decision.

According to Lozano Smith’s news brief, the Court of Appeal affirmed that the statutory language that a terminated administrator “shall have the right to become a first-year probationary faculty member” did not impose a mandatory duty on the college to make an appointment. The Court observed that interpreting Section 87458 as imposing a mandatory duty of appointment would require a college to either create or keep open a position to which a terminated administrator could “retreat,” regardless of the college’s need for that faculty position or the availability of funds, and that such an interpretation would be unreasonable. Finally, the Court rejected the argument that a college is required to discharge part-time faculty to make funds available to fund a full-time faculty position for a terminated administrator seeking appointment under Section 87458.
Finally, under the Court’s decision, in determining whether to grant or deny a request for appointment under Section 87458, a community college district’s governing board may take into consideration the availability of a funded position to which the administrator can be appointed.

[Editor’s Note: Lozano Smith notes that its news brief does not constitute legal advice.]