Grievance of Beville v. University of South Dakota/South Dakota Board of Regents

420 N.W.2d 9, 1988 S.D. LEXIS 33, 1988 WL 9497

• Court: South Dakota Supreme Court
• Decided: February 10, 1988
• Docket: 15635
• Status: Published

Opinions

DOBBERPUHL, Circuit Judge.

PRELIMINARY STATEMENT

Grievant Dr. Mitchel J. Beville (Beville) appeals the denial of his tenure review grievance by the circuit court, previously denied by the Department of Labor. On appeal, Beville does not ask this court whether tenure should have been awarded, but whether the required procedures were fairly and equitably applied to him during the tenure application process. Beville also contends that SDCL 1-26 is applicable to the grievance procedure of his employment contract, and that additional evidence should have been admitted by the trial court. We affirm.

FACTS AND PROCEDURE

Beville was employed at the University of South Dakota in the fall of 1977 as an Associate Professor of Political Science and a Director of the Government Research Bureau. Beville was a member of the Counsel of Higher Education (COHE) bargaining unit and was employed pursuant to the master contract between the Board of Regents (BOR) and the COHE. This contract provides procedures and criteria to be followed in the tenure review process. Be-ville was eligible for tenure in the 1982-83 academic year, and he initiated such tenure proceedings at that time.

Beville prepared his tenure file which included a personal vitae, student evaluations, supervising faculty evaluations, evidence of academic and non-academic activities, and other appropriate information. As per the BOR/COHE contract, the folio-wing committees were to review his tenure application, tenure file, and make a recommendation regarding the award of tenure: the Departmental Committee; the Departmental Chair; the College Committee; the Dean of the College; the Institutional Committee, and the Vice President for Academic Affairs. After each committee or individual completes the process, the President of the University evaluates all the information and makes his recommendation to the Board of Regents.

The recommendations taken by the respective committees and individuals regarding Beville’s tenure application consisted of the following:

(a) Departmental Committee unanimously recommended tenure;

(b) Departmental Chair recommended against tenure;

(c) Committee of the College of Arts and Science unanimously recommended tenure;

(d) Dean of the College of Arts and Sciences recommended tenure;

(e) Institutional Committee was divided. Four members were in favor, four members opposed, one member abstained, and one member was absent;

(f) Vice President for Academic Affairs recommended against tenure;

(g) The University President, Dr. Joseph McFadden, (President McFadden) recommended against tenure to the Board of Regents;

(h) The Board of Regents denied tenure.

It is undisputed that certain procedural irregularities occurred concerning the tenure review. First, some of Beville’s publications were temporarily separated from his file while committees and individuals were conducting the review. Second, certain letters requested and used by the Committee of the College of Arts and Sciences in their deliberations were not included in the tenure file. Third, the date of the Institutional Committee meeting was three days later than that established by university procedures.

After tenure was denied by the Regents, Beville filed a grievance under the applicable provisions of the BOR/COHE agreement (Article 6.70-6.73). Beville included the aforementioned procedural irregularities and claimed they prejudiced his tenure determination. Step Three of the grievance procedure in the agreement provided for a neutral fact finder to hear a grievance by a disappointed tenure applicant. This hearing allows the parties to obtain witnesses and present evidence. More specifically, Step Three states that the hearing will not be conducted under strict rules of legal evidence and is not a contested case. A Step Three hearing was held which resulted in a finding of recommendation for Beville.

Pursuant to the agreement, the Board reevaluated the application, and in making its final decision, rejected the fact finder’s recommendations and issued its own statement of reasons for the rejection.

Beville next filed a notice of appeal with the Department of Labor pursuant to SDCL 3-18-15.2. A hearing was held, and the Department held that the Regents did not violate, misinterpret, or inequitably apply certain provisions of the negotiated agreement between the COHE and the Regents concerning Beville’s tenure. On appeal to the circuit court, the Department’s decision was affirmed. The circuit court also held that SDCL 1-26 was not applicable to Step 3 of the grievance procedure provided for in the contract. A motion for additional evidence was also denied by the trial court. Beville appeals from that decision.

STANDARD OF REVIEW

The standard of review for administrative appeals (SDCL 1-26) has recently been clarified in Permann v. S.D. Dept. of Labor, 411 N.W.2d 113 (S.D.1987). Initially, we must determine whether the holding involves a finding of fact or conclusion of law. Schramm v. State Board of Dentistry, 414 N.W.2d 31 (S.D.1987). This distinction must be made to determine “the proper standard of review; that is, clearly erroneous as opposed to mistake of law.” Schramm, supra; Permann, supra. Questions of law such as statutory interpretation of SDCL 1-26 are reviewed by this court de novo. Schramm, supra. No deference is given to the conclusions of law by the trial court or the agency. However, as to questions of fact, SDCL 1-26-36 provides that great deference shall be given to agency findings. Thus, the decision of the administrative agency must be upheld unless, in light of the entire record, this decision is clearly erroneous or unless the court is left with a definite and firm conviction that a mistake has been made. Schramm, supra; Barkdull v. Homestake Mining Co., 411 N.W.2d 408 (S.D.1987); Permann, supra. State Division of Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42 (S.D.1984); Dakota Harvestore v. S.D. Department of Revenue, 331 N.W.2d 828 (S.D.1983). Because the issues of appeal involve both questions of fact and law, they will be reviewed separately under the appropriate standard of review.

I. TRIAL COURT PROPERLY HELD THAT SDCL 1-26 IS NOT APPLICABLE TO THE BOR/COHE STEP THREE GRIEVANCE PROCEDURE

There is no dispute that the BOR did not comply with procedures set out in SDCL 1-26-24¹ or 1-26-25² concerning Step Three of the grievance procedure. We hold that these statutory provisions are not applicable to the Step Three grievance procedure because the contract specifically and lawfully excludes those statutory provisions. SDCL 3-18-15.1 allows the Board to establish their own grievance procedures. Grievance, as defined by SDCL 3-18-1.1, includes a complaint by a public employee based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements or contract of any board as they apply to the conditions of employment. Beville alleges procedural irregularities violated the BOR/COHE agreement concerning his employment, a type of grievance provided for in SDCL 3-18-1.1; thus grievance procedures contracted for between the BOR and COHE should apply. After the grievance procedure is exhausted, 3-18-15.2 allows appeals to be made to the Department of Labor. It is at this stage that 1-26 provisions apply, and not any sooner.

There is no due process or public policy violation by allowing the parties to contract the resolution of disputes by establishing a grievance procedure. Beville had a procedure to follow, and it was conducted fairly. He is not left without a remedy. SDCL 1-26 provisions are available if and when he appeals to the Department of Labor, so those contested case provisions were not wrongfully withheld from him.

Beville cites South Dakota Board of Regents v. Meierhenry, 351 N.W.2d 450 (S.D.1984) for the proposition that 1-26 applies at an earlier stage. Beville’s interpretation is misplaced. Meierhenry allows the Department of Labor to hear professional employee grievances. Meierhenry does not prohibit or restrict the board and its faculty union from contracting for additional protection and procedures. Neither does Meierhenry require that 1-26 govern contract grievance procedures. As long as fair and adequate grievance procedures are established by collective bargaining, and the grievant is not without a remedy,- this court will not replace negotiated terms, particularly when a statute expressly allows and encourages parties to provide grievance procedures without the mandates of SDCL 1-26.

II. THE TRIAL COURT CORRECTLY DENIED THE MOTION FOR ADDITIONAL EVIDENCE

The trial court denied Beville’s motion for additional evidence because it found that he failed to make an adequate showing that this evidence was material and that there were good reasons for failure to present such additional evidence as required by SDCL 1-26-34. The additional evidence Beville seeks to introduce in the record has not been presented to this court in any manner but as a summary in appellant’s brief. It is therefore difficult to review the trial court’s decision without such evidence. No necessary offer of proof was made. State v. Sieler, 397 N.W.2d 89 (S.D.1986).

The motion for additional evidence under SDCL 1-26-34 is discretionary with the court. State, Division of Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42 (S.D.1984). We must therefore determine whether the trial court abused its discretion in denying such motion. We agree with the trial court that both materiality and good reason for failure to present such evidence are necessary to grant a motion for additional evidence. We agree with the trial judge that Beville merely concluded and did not make an adequate showing of materiality and good reason for failure to present such evidence. The trial judge did not abuse his discretion in denying such motion.

III. TRIAL COURT PROPERLY DETERMINED THAT BEVILLE WAS NOT PREJUDICED BY ANY FAILURE TO FOLLOW PRE- • SCRIBED GRIEVANCE PROCEDURES PURSUANT TO BOR/COHE CONTRACT

Beville argues that procedural irregularities resulting in a faculty tenure determination violated the BOR/COHE agreement. We disagree. The burden in on Beville to show that such violations prejudiced his substantial rights. Ashland v. South Dakota Dept. of Labor, 321 N.W.2d 103, 105 (S.D.1982). We hold that the trial court was not clearly erroneous in finding that these procedural irregularities did not prejudice Beville.

First, Beville argues that certain publications were missing from his tenure file during the time of his review. It is undisputed that these publications were returned to the file before the Institutional Committee met on December 13. The Committee merely makes a recommendation to President McFadden, who did review all the publications. He also met twice with the Institutional Committee before his final decision was made concerning Beville’s tenure. At the lower levels of committees, tenure was recommended even though these publications may have been missing. Therefore, no prejudice resulted, and the trial court was not clearly erroneous in finding no prejudice.

Second, Beville claims prejudicial error and a violation of due process by the consideration of two clarifying letters that were not added to his tenure file by the Institutional Committee. We agree with the trial court that no prejudice resulted from this omission. These clarifying letters were requested by the College Committee when the lower committee and chair disagreed on tenure recommendation. These letters did not add anything to the file, they merely explained and reiterated a previous recommendation.

We further note that these letters were properly and appropriately excluded from the tenure file. The contract does not allow the committees to add anything other than their recommendations to the file. It is the tenure applicant’s responsibility to place materials in his file. While it is apparent that Beville would not have known to add these letters to his file, it is to his advantage not to allow materials to be added without his knowledge. Such added material without the knowledge by the applicant could be prejudicial.

Third, Beville argues that he was prejudiced because the Institutional Committee met on December 13 rather than December 10, claiming that a student member would have voted for him on the 10th and a tenure recommendation would have then been advanced.

This assertion is speculative and presumptuous. There is no way to determine how the board would have voted on the earlier date. Other members may have been absent, or those favoring Beville may have voted against him. Even if a recommendation for tenure had been awarded, there is no evidence that President McFadden, the final and crucial recommendation maker, would have acted differently. It’s arguable that the extra three days helped Beville, as members had additional time to review his file and application. President McFadden also met with the Committee a second time, when the student member was present to voice her opinion, and he made the same decision. President McFadden conducted a full and fair examination of the application. The trial court was not clearly erroneous in finding no prejudice existed on this issue.

Finally, Beville claims that a prescriptive plan was not conducted as required by the employment agreement. A prescriptive plan is used to aid teachers performing deficiently. There is evidence that Beville’s teaching was adequate, thus a prescriptive plan as defined under the contract would be unnecessary. The contract does not require the use of prescriptive plans for tenure reviews. Article 11.10 of the contract refers to the use of evaluations, not prescriptive plans, for tenure evaluations. There is no common law or contractual right to have deficiencies which could result in a denial of tenure evaluated and monitored through use of a prescriptive plan.

Beville would lead us to believe that objectivity is prevalent in tenure awards, and while we agree that the contract should be followed concerning tenure, tenure is still a subjective process. The contract does not eliminate the subjective element of tenure review; it merely offers guidelines. Tenure is more than teaching — it also includes research and service.

While this court does not condone the procedural irregularities that occurred in Beville’s tenure review, we believe the review process was fair and afforded Beville his due process rights.³ We will not second guess the experienced, professional judgment of the University and Board of Regents when the applicable procedures were substantially complied with and substantial interests of the parties were satisfied. Smith v. State of North Dakota, 389 N.W.2d 808 (N.D.1986); Piacitelli v. Southern Utah State College, 636 P.2d 1063 (Utah 1981). The review need not be perfect, but fairly and fully conducted to protect an individual’s source of livelihood — employment.

WUEST, C.J., and MORGAN and HENDERSON, JJ., concur. SABERS, J., dissents. DOBBERPUHL, Circuit Judge, sitting for MILLER, J., disqualified.

1 . 1-26-24 provides: When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a tentative or proposed decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The tentative or proposed decision shall contain a statement of the reasons therefor and findings of fact on each issue and conclusions of law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.

2 . 1-26-25 provides the type of form, contents and notice of decisions, orders and findings necessary in contested cases.

3 . Recently, this court has not hesitated to overturn hearing procedures that were so fundamentally flawed that due process was violated. See Schramm, supra.