03-2755 Marder v. Board of Regents of the University of Wisconsin System

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“Furthermore, as a matter of due process, Marder has a right to know whether any new and material information was discussed at the closed meeting. Because the record does not indicate what the Board and the Chancellor discussed, we remand to the circuit court for it to make that finding. The court should then determine, based on its finding, whether Marder’s right to a fair hearing was violated by the ex parte communication.”

The contested case provisions of ch. 227 do not apply to plaintiff because that statute expressly authorizes the board to adopt termination procedures for tenured faculty and the board did that by enacting Admin. Code ch. UWS 4.

“Furthermore, the code provisions are specific to faculty dismissal cases. The contested case provisions of Wis. Stat. ch. 227 are more general. Where specific and general provisions conflict, specific provisions take precedence.”

However, we conclude that the Board’s interpretation of the code as not requiring plaintiff’s presence at the board’s meeting with the Chancellor was plainly erroneous and inconsistent with the rest of the code’s provisions.

“[T]he foregoing code sections demonstrate that, in reality, the consultation is a part of the overall hearing process, which is not concluded until a decision is announced. ‘Any hearing’ must comply with § UWS 4.05. Consequently, Marder had the right to hear and refute any allegations the Chancellor raised during the consultation. Because Marder did not have that opportunity, the Board failed to comply with the requirements of § UWS 4.05….

“The circuit court is in the best position to determine whether there was any new and material information discussed during the closed meeting. [citation]… On remand, the court may exercise its discretion in how it chooses to make that determination. It may allow discovery, take testimony or use any other method it deems appropriate. …If the court finds the ex parte communication involved new and material information, it can then determine the proper remedy under Wis.

Stat. ch. 227. See Wis. Stat. § 36.13(5). However, if there was not any new and material information, then Marder’s due process rights were not violated. In that case, the Board’s decision to terminate Marder’s employment will stand.”

Reversed and remanded with directions

Recommended for publication in the official reports.

Dist III, Douglas County, Eaton, J., Peterson, J.

Attorneys:

For Appellant: Aaron N. Halstead, Madison

For Respondent: Jennifer S. Lattis, Madison