State ex rel. Tuck v. Cole

386 S.E.2d 835, 182 W. Va. 178, 1989 W. Va. LEXIS 231
CourtWest Virginia Supreme Court
DecidedOctober 19, 1989
DocketNo. 18200
StatusPublished
Cited by1 cases

This text of 386 S.E.2d 835 (State ex rel. Tuck v. Cole) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Tuck v. Cole, 386 S.E.2d 835, 182 W. Va. 178, 1989 W. Va. LEXIS 231 (W. Va. 1989).

Opinion

NEELY, Justice:

Howard K. Tuck, Ph.D., the petitioner below, was relieved of his staff position at the West Virginia College of Graduate Studies in 1982. On 23 December 1982, he sought a writ of mandamus against the officers of the College and the state Board of Regents, claiming that he was denied due process of law when the respondents failed to renew his contract and denied him a hearing on the matter. The Circuit Court of Kanawha County found in Dr. Tuck’s favor and, on 3 September 1987, ordered the respondents to pay Dr. Tuck back wages of $116,494.56 and either grant him a hearing or reinstate him. The respondents appeal the order here. We now reverse the Circuit Court’s order and enter judgment for the respondents.

Dr. Tuck holds a Ph.D. in history from the University of Delaware. It is undisputed that he is qualified to teach history at the college level. He taught history at various colleges in other states from 1968 to 1974. On 1 July 1974, he took a position at the West Virginia College of Graduate Studies, in Institute, as Assistant Vice President for Academic Affairs. There was a dispute early on about whether Dr. Tuck was a tenure-track professor, subject to the College’s peer review process. In [179]*1791975, it was settled that Dr. Tuck was an administrator, even though he might teach an occasional course “on a ‘need’ basis.” He was given a “courtesy” title of “Assistant Professor” (later “Associate Professor”).

In November 1975, the College’s committee of Deans considered Dr. Tuck for tenure and rejected him. Dr. Tuck objected to this peer review, stating in a letter of 9 December 1975:

The overwhelming majority of my responsibilities are ... clearly administrative. I, thus, fall under provision 9-E of “Board of Regents Amended Policy Bulletin No. 36” and (as long as my duties remain primarily administrative — as they have this far) do not accrue the service credit that would allow me to ever apply for tenure.

In a 12 December 1975 letter, John Wright, then interim president of the College, agreed with Dr. Tuck, “Your primary responsibilities are administrative rather than faculty and therefore you are not operating under the conditions of Policy Bulletin # 36 [infra ] that refers to faculty appointments. You are not in a probationary status leading to consideration for tenure.” There is no evidence in the record that Dr. Tuck’s teaching responsibilities even increased from 1975 to 1982.

In 1979, Bd. Regents Policy Bulletin No. 36 was amended to allow professional staff other than professors to qualify for tenure.1 In Dr. Tuck’s case, however, there is no evidence in the record that the president of the college ever designated Dr. Tuck as “faculty” in a tenure-track or tenured position in accordance with the 1979 amendment.

From 1976 to 1979, Dr. Tuck held the position of “Assistant to. the President,” and from 1979 to 1982, “Executive Assistant to the President.” Each year, Dr. Tuck negotiated a contract running from 1 July of one year to 30 June of the next. In the spring of 1982, James Rowley, then president of the College, decided that he no longer wished to employ Dr. Tuck as his assistant. Dr. Tuck sought to negotiate for a teaching position as a tenured associate professor of history. College officials initially contemplated offering Dr. Tuck a full faculty position, but later decided against it. Dr. Tuck’s name was at one point submitted to the Board of Regents for tenure in 1982, but later withdrawn without action, for reasons that are beyond the record in this case. William Crockett, acting president, finally offered Dr. Tuck a written contract to continue as an assistant to the president until 30 August 1982. Dr. Tuck returned this contract unsigned with the note, “I am a tenured associate professor with regular faculty rank. Please remit proper contract immediately. HKT.” The college never delivered a contract to Dr. Tuck to serve as a full-time, tenured professor. On 29 September 1982, Dr. Crockett wrote to Dr. Tuck that, because they could not agree on a contract, Dr. Tuck’s employment at the College was ended as of 30 June 1982, the last day of Dr. Tuck’s prior contract. The College did not give Dr. Tuck a hearing or state a reason for not rehiring Dr. Tuck.

Dr. Tuck claims that he was deprived of a property right (employment) without due process of law (a prior hearing), as required by the Fourteenth Amendment to the U.S. Constitution and by Article III, Section 10, of the West Virginia Constitution. The law in this area was set out by the U.S. Supreme Court in a pair of 1972 cases, both involving professors at public colleges. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The issue in both cases was whether the employee had a property right in continued public employment. If there is a property right, the employee must be accorded due process before he can be fired. Sinder-mann, supra. If there is no property right, the employer may refuse to renew [180]*180the employment, without a hearing and without giving any reason. Roth, supra. The principles of Sindermann and Roth have been incorporated in our jurisprudence through such cases as North v. Board of Regents, 160 W.Va. 248, 238 S.E.2d 411 (1977), McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978), and Clarke v. Board of Regents, 166 W.Va. 702, 279 S.E.2d 169 (1981).

In Roth, supra, Mr. Justice Stewart set out the Court’s definition of a protected property interest:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. The entitlement may be grounded in contract, state statutes or regulations, and the like:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. In Roth, the employee was a probationary, tenure-track professor in the University of Wisconsin system. Tenure was granted automatically, according to state statute, after four years of service. Before four years, however, state law gave professors no presumptive right to have their contracts renewed. Thus, the Court held, Roth had no property interest to protect, but a mere subjective expectation.

In the companion case Sindermann, supra, the respondent was a tenth-year professor in the Texas state college system. Odessa College, where he taught, had no formal tenure system.

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Bluebook (online)
386 S.E.2d 835, 182 W. Va. 178, 1989 W. Va. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-tuck-v-cole-wva-1989.