Wong

PARRILLI, Acting P.J.

Education Code section 87458 [1] sets forth the conditions under which a person previously employed as an administrator shall have the right to become a first-year probationary faculty member at a community college. In this case, we hold an administrator's statutory right under section 87458 is not absolute. A college may deny an administrator's request for appointment when there is no position available to which the former administrator may be appointed. We affirm the order denying Steven Wong's petition for a writ of mandate by which he sought to compel his appointment as a first-year probationary faculty member under section 87458.

Due to budgetary constraints in January and February of 2003, Ohlone College (the College) determined that for the school year 2003-2004, it would not fill two full-time faculty positions in the Business and Technology Division (Division) that were being vacated by retiring professors as of July 1, 2003. Additionally, the College decided to lay off certain administrative employees, including Steven Wong, who was then Dean of the Division. The College administrators stopped the recruitment process for the soon to be vacated…

*1381 Opinion

Education Code section 87458 1 sets forth the conditions under which a person previously employed as an administrator shall have the right to become a first-year probationary faculty member at a community college. In this case, we hold an administrator’s statutory right under section 87458 is not absolute. A college may deny an administrator’s request for appointment when there is no position available to which the former administrator may be appointed. We affirm the order denying Steven Wong’s petition for a writ of mandate by which he sought to compel his appointment as a first-year probationary faculty member under section 87458.

FACTUAL AND PROCEDURAL BACKGROUND

Due to budgetary constraints in January and February of 2003, Ohlone College (the College) determined that for the school year 2003-2004, it would not fill two full-time faculty positions in the Business and Technology Division (Division) that were being vacated by retiring professors as of July 1, 2003. Additionally, the College decided to lay off certain administrative employees, including Steven Wong, who was then Dean of the Division. The College administrators stopped the recmitment process for…

I concur in the reasoning and conclusion of the majority opinion. However, I would add an additional observation. Education Code section 87458 provides that a person satisfactorily employed for at least two years in an administrative position not part of the classified service who has not previously acquired tenured status “shall have the right to become a first-year probationary faculty member” (italics added) upon termination of the administrative assignment, if that person’s competency has been determined in a process that meets the requirements specified in the statute. The effect of this provision is to entitle the former administrator to be employed in the faculty *1386 position without satisfying minimum qualifications specified elsewhere. (See Ed. Code, §§ 87356, 87357, 87400; compare with Ed. Code, § 87359.) It is in this sense that the individual has the “right” to hold such a position. However, the fact that the individual is deemed qualified to hold a position does not mean that the board of governors must fill it.