Tenure Case Analysis

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The court’s holding that a decision to terminate a tenured professor is not a “contested case” under ch. 227 is problematic for a host of reasons, and parties should not rely on it until the Supreme Court has spoken on the issue.

The first reason is that the Supreme Court has already spoken on the issue, and has held that hearings to discharge a tenured professor are subject to Chapter 227.

State ex rel. Ball v. McPhee, 6 Wis.2d 190, 94 N.W.2d 711 (1959). Other holdings in Ball were subsequently overruled by the Supreme Court, but the specific holding — that sec. 227.13 applies to such cases — remains valid law.

Without any explanation from the court of appeals in the case at bar, as to why ch. 227 in general, and sec. 227.50 in particular should not apply, when the Supreme Court has held that ch. 227 and sec. 227.13 do apply, the court’s decision is suspect, at best.

The court’s reliance on State ex rel. Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 547 N.W.2d 587 (1996), is also suspect. The court cited the case for the proposition that, where specific and general provisions conflict, the specific provision takes precedence over the general.

Auchinleck, however, concerned conflicting statutes; in the case at bar, there is a statute and an administrative rule that conflict. The applicable general rule in that context is that, if an agency promulgates a rule that conflicts with an unambiguous statute, the agency has exceeded is authority and the rule is invalid. Seider v. O’Connell, 2000 WI 76, pars. 26, 28, 236 Wis.2d 211, 612 N.W.2d 659.

Auchinleck would be the correct rule if sec. 36.13(5), or some other statute in Chapter 36 directly provided that the board may consult ex parte with the chancellor. As an administrative rule, however, UWS 4.08(2) is trumped by Chapter 227.

The only authority that the court cites for its holding is the sentence in sec. 36.13(5) that “The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227.” How-ever, every administrative agency is given authority to develop rules. However, that grant does not give the power to pass rules that are contrary to state statutes. See Sec. 227.10(2).

Ultimately, however, the strongest argument for why the court’s decision cannot stand is that the practical ramifications are unfathomable.

Here are just a few. Section 227.44(1) provides, “In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Except in the case of an emergency, reasonable notice shall consist of mailing notice to known interested parties at least 10 days prior to the hearing. Subsection (2) then sets forth the requirements of that notice.

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Under the court’s holding — that a termination of tenure is not a “contested case” — the board can disregard this statute entirely, and the only requirements for proper notice are the Due Process Clause.

Section 227.45(1) provides that, in contested cases, an agency is not bound by statutory rules of evidence, but that it should consider all relevant evidence. Under the court’s decision, the board is free to adopt its own rules of evidence.

Section 227.49, titled “Petitions for Rehearing in Contested Cases,” allows 20 days for parties to file a petition for rehearing. Under the court’s holding, the board can adopt an entirely different time frame for petitions.

To conclude that the board can adopt any rule and regulation it wants, contrary to an explicit provision in Chapter 227, and subject only to the Constitution, based on a grant of authority as general as, “The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227,” is inconsistent with the legislative intent.

– David Ziemer

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David Ziemer can be reached by email.