Tenure termination not a contested case

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“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 sec. UWS 4.05.” Hon. Gregory A. Peterson Wisconsin Court of Appeals

A State University’s tenure termination process need not comply with the contested case provisions of Chapter 227, the Wisconsin Court of Appeals held on Aug. 10.

Instead, the court held that Wis. Admin. Code ch. UWS 4 supercedes the chapter.

John Marder had been employed by the University of Wisconsin System since 1987 and was a tenured faculty member at UW-Superior. In 1999, the Chancellor at UW-Superior, Julius Erlenbach, served Marder with a Statement of Charges, containing 18 separate charges which “evince[d] a pattern of behavior that is inconsistent with the expectations this university has of tenured faculty members and which further violate standards of professional conduct, thus constituting just cause to dismiss you from your tenured faculty position at UW-Superior.”

The statement advised Marder that the Chancellor was terminating Marder’s employment unless Marder requested a hearing on the charges. Marder requested a hearing, pursuant to Wis. Admin. Code sec. UWS 4.04.

A committee of four tenured faculty members at UW-Superior held two days of hearings, and issued a unanimous decision rejecting the Chancellor’s recommendation to terminate Marder. Nevertheless, the Chancellor recommended Marder’s termination to the Board of Regents.

The Board’s Personnel Matters Review Committee reviewed the evidence and unanimously recommended that the Board reject termination. However, the full Board voted 11-3 to terminate Marder’s employment.

Marder petitioned the Douglas County Circuit Court for review of the board’s decision, seeking reversal of the board’s decision to terminate him. In the alternative, he sought leave to take testimony and discovery regarding several ex parte communications.

First, Marder alleged that the Board had improper contact with the Office of the General Counsel. Second, he alleged that one of the Board’s regents had improper contact with the chancellor.

Finally, Marder alleged there was an unlawful ex parte meeting between the board and the chancellor before the board rendered its decision. The board admitted it met with the chancellor without Marder being present.

Douglas County Circuit Court Judge Robert E. Eaton concluded that this was a contested case under ch. 227, and thus, although UWS 4.08 of the administrative code required the board to consult with the chancellor, sec. 227.50 required Marder to be present.

Thus, the court remanded the case to the board for further action. As for Marder’s request for leave to take testimony and discovery to determine what was discussed during the alleged ex parte communications, the court denied the request, stating it was “not needed to assist the court in making a decision.”

Both parties appealed, and the court of appeals reversed in a decision by Judge Gregory A. Peterson.

Contested Case

The court reversed the district court’s holding that the action is a “contested case” subject to Chapter 227.

The court noted that, if it were, sec. 227.50(1)(a)1 expressly prohibits ex parte communications and subsection (2) provides the remedies. Section 227.50(1)(a)1 provides, “In a contested case, no ex parte communication relative to the merits … shall be made, before a decision is rendered, to the hearing examiner or any other official or employee of the agency who is involved in the decision-making process, by: An official of the agency or any other public employee or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter.”

Section 227.07(3) defines a contested case as “an agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order.”

Although Marder’s case fits this definition, the court nevertheless held that it was not a “contested case,” because of sec 36.13(5): “Any person having tenure may be dismissed only for just cause and only after due notice and hearing. Any person having a probationary appointment may be dismissed prior to the end of the person’s contract term only for just cause and only after due notice and hearing. The action and decision of the board
in such matters shall be final, subject to judicial review under ch. 227. The Board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227. (Emphasis added by court).”

The court concluded, “This statute specifically authorizes the Board to adopt termination procedures. Pursuant to the statute, the Board adopted Wis. Admin. Code ch. UWS 4, which lays out the process to be applied in faculty dismissal cases. While Wis. Stat. sec. 36.13(5) provides that dismissal decisions are reviewed under ch. 227, it does not indicate that any other provisions of ch. 227 apply.”

The court added that the code provisions are specific to faculty dismissal cases, while the contested case provisions of Wis. Stat. ch. 227 are more general. Where specific and general provisions conflict, specific provisions take precedence.

Accordingly, the court held that the contested case provisions of ch. 227 are inapplicable.

Turning to the code, the court noted that UWS 4.08(2) expressly authorizes the board to consult with the chancellor.

Nevertheless, the court found that it could not do so ex parte, but that the employee must be present at the meeting. The court noted that UWS 4.05(1) guarantees faculty members the right to be heard in his defense, the right to confront adverse witnesses, and the right to a verbatim record of all hearings.

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The court concluded, “Section UWS 4.06(1) states that ‘any hearing held shall comply with the requirements set forth in sec. UWS 4.05.’ These two sections must be read in conjunction with sec. UWS 4.08(2), which requires a consultation between the board and the chancellor. Presumably the charges are discussed at the consultation. A decision is not made until after the consultation. We recognize that sec. UWS 4.08(2) uses language that mandates the consultation take place ‘after the hearing.’ However, the 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 sec. 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 sec. UWS 4.05.”

The court also held that due process guaranteed Marder the right to be present, holding, “Even if the code does permit a closed meeting between the Board and the Chancellor, Marder had a constitutional due process right to hear the evidence against him and to respond to that evidence,” citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)

The court concluded that Marder’s due process rights were violated if the board actually received additional information from the chancellor during the ex parte meeting. Accordingly, the court remanded the case to the circuit court to determine whether any new or material information was discussed during the ex parte meeting.

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David Ziemer can be reached by email.