The Yosemite Community College District believes it acted appropriately in laying off 15 instructors as part of budget cuts at Modesto Junior College last month, but lawyers representing those instructors say the district did not take seniority and qualifications into account in handing out those pink slips.
The two sides laid out their case during an administrative hearing in the YCCD Boardroom Tuesday morning, overseen by Jonathan Lew, an Administrative Law Judge from the state Office of Administrative Hearings.
Lew isn’t tasked with evaluating budget decisions, deciding what programs or positions are important, or even whether teachers performed their jobs well or competently. His job is merely to determine whether the YCCD’s actions were appropriate in accordance with California Code.
The district must establish that cause exists to reduce its employment, and that proper consideration was given to teacher credentials, seniority, bumping rights, and retirements.
“Quite simply in this case, the layoffs proceeded by the seniority list,” District counsel Marilyn Kaplan said.
But instructors’ attorney Robert Bezemek at one point termed the district’s seniority list a “matter of fiction” due to omissions. When Bezemek attempted to post a modified seniority list in a waiting area for YCCD staff to investigate, district security guards were directed to tear the list down, stating the information was confidential; the judge overruled that decision and allowed the posting to stay.
The argument comes down to a simple – yet legally complicated – issue, in Bezemek’s eyes, focusing on a concept known as minimum qualifications.
“None of these respondents deserve to be fired, and none of them can legally be fired,” Bezemek said.
All of the laid off employees have seniority, and should have legally “bumped” into positions in similar disciplines for which they are qualified, displacing junior faculty members, according to Bezemek. Bezemek said the employees qualified for those positions under Minimum Qualifications code, which lays out base standards for teacher competency, at the time of their hire.
For “academic” disciplines – those in which a masters degree is readily available – a masters in a related field is usually required for a minimum qualification. For vocational and career tech disciplines, minimum qualifications are usually a bachelor’s degree and two years of work experience in a related field, or an associate’s degree and six years of work experience.
But even those disciplines “requiring” a master’s degree in the field mostly allow for some “equivalent,” per the minimum qualifications code. The district said that the equivalent usually had to be a master’s degree in some field, graduate level work, a PhD, or academic publications in the field.
Those qualifications should have been included in employee human resource files at the date of hire, Bezemek said, though they were not.
“It's your argument we go back to (the date of hire),” Kaplan said. “We absolutely, unequivocally disagree with that.”
Kaplan said professors should meet today’s minimum qualifications, and implied they should be subject to a hearing process used to determine equivalencies. Kaplan said if a professor had not explicitly asked to be considered for another field, the minimum qualification should not be granted, even if met.
Bezemek argued that the onus was on the district to track minimum qualifications for instructors, and to bump them into appropriate positions once reductions in force were made. Bezemek said the district’s position expected professors to apply for equivalencies – not even the right process – more than a month before layoffs were official, and could put the decision making power in the hands of professors who may be bumped from a job should the equivalency be approved.
Testimony delved into individual instructors minimum qualifications at times, though no respondents were called to testify in a longer-than-expected hearing. Between six and eight respondents and other witnesses are expected to testify from 9 a.m. to 12 noon today, at which time the hearing will conclude.
Individual issues varied
One professor, Laura Paull, a 14-year veteran of Mass Communications and Journalism at MJC, started her career as an adjunct professor of Spanish, showing she met those minimum qualifications, Bezemek argued. She also met minimum qualifications as an English professor, per witness testimony. But the district implied that Paull may not meet the minimum qualifications for any post without much elaboration, though her qualifications are expected to be addressed in depth today.
Witnesses testified that other professors currently taught courses in other disciplines, or taught courses which were “dual-listed” in two similar disciplines, which implied professors had the minimum qualifications to teach fulltime in those disciplines. The district believes that simply teaching classes in a discipline does not mean professors have appropriate qualifications to move into that discipline fulltime.
Large portions of the day’s testimony also focused on the MJC department of Computer Graphics, which is not a discipline that is explicitly listed in the state minimum qualifications code. Bezemek argued the discipline must legally fall under some other discipline – Graphics or Graphic Arts, both of which some laid off faculty would qualify for – while the district argued it had an authority to create new disciplines and apply separate, unlisted minimum qualifications. Bezemek argued that, per state law, creation of a discipline requires academic senate, curriculum committee, and chancellor’s office approval, and that no evidence suggested the discipline had ever been created through that process.
Even at the close of today’s hearing, the professors’ fate will likely not be decided. Both Kaplan and Bezemek are expected to provide legal briefs as closing statements, following which Lew will write a decision.
“I look forward to hearing more argument, possibly even written,” Lew said.
The administrative hearing will continue today, from 9 a.m. until 12 noon, in the YCCD boardroom at 2201 Blue Gum Ave., Modesto.
To contact Alex Cantatore, e-mail acantatore@turlockjournal.com or call 634-9141 ext. 2005.
