Mills v. WESTERN WASHINGTON UNIVERSITY

246 P.3d 1254
Washington Supreme Court·Decided February 3, 2011·No. 83597-7·Published·Cited by 2 cases

Opinion

246 P.3d 1254 (2011)

Perry MILLS, Respondent,
v.
WESTERN WASHINGTON UNIVERSITY, Petitioner.

No. 83597-7.

Supreme Court of Washington, En Banc.

Argued October 28, 2010.
Decided February 3, 2011.

*1255 James Elliot Lobsenz, Carney Badley Spellman, Seattle, WA, for Petitioner.

Wendy Karen Bohlke, Attorney at Law, Bellingham, WA, Derek Edwards, Office of the Attorney General, Seattle, WA, for Respondent.

Katherine George, Harrison Benis & Spence, LLP, Seattle, WA, amicus counsel for Allied Newspapers of Washington.

ALEXANDER, J.

¶ 1 We granted Western Washington University's (University) petition to review a decision of the Court of Appeals in which that court reversed the superior court's denial of Perry Mills's request for relief from an order of the University's Board of Trustees suspending Mills for two academic quarters. The basis of the court's decision was that the University violated the Administrative Procedure Act (APA), chapter 34.05 RCW, by closing Mills's disciplinary hearing to the public. We reverse the Court of Appeals.

I

¶ 2 Perry Mills has been a professor at Western Washington University for more than 20 years.[1] In 1994, the University granted Mills tenure as an associate professor in its Theatre Arts Department. In 1998, Mills's application for a promotion to full professor was denied based on the recommendation *1256 of Thomas Ward, the chair of the Theatre Arts Department. In his recommendation against promotion, Ward noted that Mills often berated and demeaned students and colleagues and had "an extremely high student complaint rate." Clerk's Papers at 1461. Two years later, Mills received a letter from the new department chair, Mark Kuntz, admonishing Mills for making "off-color remarks" about colleagues, women, gay students, and minorities. Id. Kuntz reminded Mills that he was bound by the faculty code of ethics and concluded by saying, "`Your behavior must change.'" Id.

¶ 3 In September 2001, members of the theatre arts faculty and staff addressed a letter to Bertil van Boer, the dean of the College of Fine and Performing Arts, expressing their "`real and tangible fear' occasioned by Mills's carrying of a registered firearm and a large knife on campus and in the classroom, together with his belligerent rants about killing people who offended him." Id. at 1455. Following receipt of the letter, Dean van Boer advised Mills not to carry weapons on campus. At the same time, Kuntz sent Mills what Kuntz described as the "`third in a series of memos ... concerning your behavior,'" stating, "`Your behavior scares people. You know it. Your repeated need to express your desire to `kill' people is not appropriate, and will stop ... [.] Your lack of sensitivity or care about the needs of students, staff, and colleagues must stop.'" Id. at 1461.

¶ 4 Mills's inappropriate behavior did not stop. In the fall of 2001, Mills told a female professor in the Theatre Arts Department that "she had better keep her legs closed, because she could not be expected to teach students the same way she got her doctorate." Id. at 1445. Mills continued verbally abusing this professor over the next two years, calling her a "`bimbo'" and a "`slut'" to her face and to his students in her absence. Id. After the University granted tenure to this professor, she reported Mills's conduct to Dean Carol Edwards. Mills called another professor "`just a stupid faggot.'" Id. at 1446. When that professor informed Mills that he would not tolerate his offensive language, Mills began referring to him as "`Precious'" in a lilting manner that mocked the professor's sexual orientation. Id.

¶ 5 Mills also disparaged members of the staff, telling the department's administrative assistant, "`You're just a stupid bitch. You're just white trailer trash.'" Id. at 1447. On another occasion, Mills screamed at a library assistant who had failed to return a film to the library, "`You bitch, you screwed up,'" and then asked, "`Is she retarded?'" Id. at 1457. In addition, Mills verbally abused students in his classroom, especially female students, calling them "`shit for brains,' `blondies,'" and "`f ... ing lazy girl[s].'" Id. at 1456. He told one student that she was "`a 400-pound canary who warbles nothingness' and `makes him sick.'" Id. In 2004, the dean of the College of Fine and Performing Arts, Carol Edwards, received a complaint from a student who had just returned to class after undergoing treatment for cancer. The student, who had lost her hair due to chemotherapy, expressed her reticence about presenting her play for review by the class. Mills told her that not offering her work for review would be just the same as dying from cancer.

¶ 6 After receiving complaints about the above-mentioned conduct, the University provost suspended Mills with pay in October 2004 pending an investigation. The provost subsequently issued a formal statement of charges against Mills. The University then convened a hearing panel of five faculty members selected from the Faculty Senate's Standing Committee on Grievances and Sanctions. Former superior court judge Robert Alsdorf, who was appointed to serve as a nonvoting presiding officer, indicated that "the default setting would be that the hearing would be private." Id. at 324. As support for this decision, he cited section XVII.2.d of the University's Faculty Handbook, which provided, "The hearing will be private unless the Hearing Panel, in consultation with the Provost and only with the agreement of the faculty member, decides that the hearing should be public." Id. at 207, 323-24. Mills, who was represented by counsel, argued that the hearing should be open to the public. The panel decided to *1257 close the hearing and asked a newspaper reporter in attendance to depart.

¶ 7 At the conclusion of the hearing, the panel recommended that Mills be suspended without pay for two academic quarters. Mills appealed the decision to the University's Board of Trustees, which affirmed the panel's recommendation. It concluded, among other things, that the hearing was properly closed pursuant to section XVII.2.d of the University's Faculty Handbook, which the board regarded as a "provision of law" for purposes of RCW 34.05.449(5).

¶ 8 Mills sought judicial review in the Whatcom County Superior Court pursuant to the APA. See RCW 34.05.570. The superior court denied relief. Mills then appealed directly to this court, but we transferred the case to the Court of Appeals. At that court, Mills argued variously that the University had breached the terms of his employment contract, that the Faculty Code of Ethics was unconstitutionally vague, that his freedom of speech had been abridged, and that the closure of his disciplinary hearing had been unlawful. Mills v. W. Wash. Univ., 150 Wash.App. 260, 264, 208 P.3d 13 (2009). Although the Court of Appeals rejected Mills's contract and constitutional claims, it held that the University violated the APA by closing Mills's hearing to the public. It, therefore, reversed the University's disciplinary order and remanded for a new hearing.

¶ 9 Mills and the University both petitioned this court for review.

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