AKHTAR v VAN DE WETERING

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No. 81-10 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 M. IQBAL AKHTAR, Plaintiff and Appellant, VS . JOHN E. VAN DE WETERING et al., Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Boschert and Boschert, Billings, Montana Rosemary Boschert argued, Billings, Montana For Respondents: LeRoy H. Schramm argued, Helena, Montana Submitted: Decided: Filed: MAR 3 - 1982 December 1, 1981 3 1982 Mr. Justice John Conway Harrison delivered the Court. M. Iqbal Akhtar initiated the Opinion of this action following denial of his tenure at Eastern Montana College (EMC). He sought reinstatement with tenure and backpay, claiming violations of W i - sections 49-3-101(1)(2) and 49-3-201, .of the Civil Rights Act of 1964, 42 U.S.C. MCA; S2000c; and equal protection rights secured by Article 11, Section 4, of the Constitution of the State of Montana and the Fourteenth Amendment to the United States Constitution. The District Court found the denial of Dr. Akhtar's tenure application resulted from the defendants' exercise of academic judgment and did not discriminate against Dr. Akhtar either individually or as a member of a class. From that decision, Dr. Akhtar appeals. Appellant is an assistant professor in the Department of Economics of EMC, where he has taught since his appointment there in September 1975. of the United Pakistan. States and a He is a naturalized citizen former citizen of Lyallpur, Akhtar received his PhD degree in agricultural economics from Texas A & M University in 1967. Prior to his appointment at EMC appellant taught one year at Middle Stand State University and one semester at Idaho State University. Appellant applied for tenure according to the faculty contract procedure in October 1978. He submitted application to the unit rank and tenure committee. his After consideration, the committee made a positive recommendation to the college rank and tenure committee. On or about January 15, 1979, Robert McRae, Dean of the Liberal Arts School, forwarded an unfavorable recom- mendation regarding the appellant's tenure application to the College Rank and Tenure Committee and a copy of that recommendation to Larry W. Jones, Academic Vice-President. The College Rank and Tenure Committee sent a favorable recommendation regarding appellant's tenure application to the academic vice-president on or about March 1, 1979. The academic vice-president forwarded appellant's application with the academic vice-president's negative recommendation to President John Van de Wetering on or about March 28, 1979. The president informed appellant of his decision not to award tenure on April 17, 1979. On May 1, 1979, the president received a letter from Professor Harry Gaghan, Chairman of the Department of Social Sciences, on behalf of the department, requesting the president to reconsider his decision and protesting the use of the student evaluation instrument. The president requested a reevaluation of appellant's application excluding the student evaluation test from consideration. On May 16, 1979, Dean McRae submitted his reevaluation of appellant's application to Vice-President Jones, indicating Dean McRae's recommendation remained unfavorable. On May 17, 1979, the vice-president submitted his reevaluation to the president which reaffirmed his negative recommendation. The president then reaffirmed his denial of tenure to appellant. Several issues are before this Court: 1. May appellant's claim of denial of due process rights properly be heard on appeal? 2. If so, was appellant denied guaranteed due p r o c e s s when h e was d e n i e d t e n u r e ? 3. in that Was a p p e l l a n t d e n i e d e q u a l p r o t e c t i o n g u a r a n t e e s he was treated differently than other similarly s i t u a t e d c a n d i d a t e s f o r t e n u r e and p r o m o t i o n a t EMC? 4. Did t h e D i s t r i c t C o u r t e r r i n r e f u s i n g t o r e c e i v e i n t o e v i d e n c e and h e a r t e s t i m o n y on p l a i n t i f f I s E x h i b i t No. 2 5 , a r e p o r t from a n a p p e a l s c o m m i t t e e i n t h e t e n u r e m a t t e r o f Dr. J e r o m e H u r l e y ? 5. Did t h e D i s t r i c t C o u r t e r r i n refusing t o allow t h e t e s t i m o n y of Maury Evans r e g a r d i n g u n i o n a c t i v i t i e s o f Dr. A k h t a r and o t h e r f a c u l t y ? 6. Did t h e D i s t r i c t C o u r t e r r i n refusing t o allow t h e r e b u t t a l t e s t i m o n y o f Dr. J a y K i r k p a t r i c k ? R e s p o n d e n t s a r g u e a p p e l l a n t ' s d u e p r o c e s s c l a i m may n o t p r o p e r l y be h e a r d on a p p e a l s i n c e i t was n o t r a i s e d a t tne t r i a l court. time to the An i s s u e which i s p r e s e n t e d f o r t h e f i r s t Supreme c o n s i d e r e d on a p p e a l . Resources ( 1 9 7 9 ) , 666. Court untimely Northern P l a i n s v. - Mont . The q u e s t i o n is before us, , cannot be Board o f N a t u r a l 594 P . 2 d then, and 2 9 7 , 36 S t . R e p . is whether appellant r a i s e d t h e d u e p r o c e s s i s s u e below. A p p e l l a n t ' s c o m p l a i n t a l l e g e s v i o l a t i o n s of s e c t i o n s Title 4 9 - 3 - 1 0 1 ( 1 ) ( 2 ) and 49-3-201, MCA; 5 of t h e C i v i l ,&c/- R i g h t s Act o f 1 9 6 4 ; and t h e e q u a l p r o t e c t i o n g u a r a n t e e s o f t h e F o u r t e e n t h Amendment t o t h e C o n s t i t u t i o n o f t h e United S t a t e s and A r t i c l e 11, S e c t i o n 4 , o f t h e C o n s t i t u t i o n o f t h e S t a t e of Montana. The c o m p l a i n t was n e v e r amended and makes no r e f e r e n c e t o d u e p r o c e s s v i o l a t i o n s . Appellant does, however, refer t o due process exten- s i v e l y i n b o t h h i s t r i a l b r i e f and h i s p r o p o s e d c o n c l u s i o n s of law. Fact And, No. 9: i t s F i n d i n g of t h e D i s t r i c t Court s t a t e s i n "Plaintiff alleges that he was discriminated a g a i n s t i n r e g a r d t o s a i d t e n u r e a p p l i c a t i o n and t h a t he was not accorded accorded the other sufficient same p r o t e c t i o n faculty indication . . ." members of the and d u e p r o c e s s presence t h a t was W e the of find due this a process i s s u e a t t h e t r i a l l e v e l t o c o n s i d e r i t on a p p e a l . A p p e l l a n t c l a i m s h i s d u e p r o c e s s r i g h t s were v i o l a t e d (1) h e was notice and hearing t o t h e d e n i a l of h i s t e n u r e a p p l i c a t i o n , and (2) the because prior decision to founded on deny a not given tenure adequate was arbitrary of appellant's violation and capricious equal and protection rights. The appellant first question a had to property be or is answered liberty interest wnether is which a c c o r d e d d u e p r o c e s s p r o t e c t i o n by t h e F o u r t e e n t h Amendment to t h e United 17, of States Constitution t h e Montana C o n s t i t u t i o n . ( 1 9 7 2 ) , 408 U.S. v. 5 6 4 , 92 S . C t . (1976), Thorson 170 Mont. Yellowstone County ( 1981) , St.Rep. the 686. question Board o f 2701, 5, Mont Regents v. 33 L.Ed.2d 549 P.2d . 11, S e c t i o n 809; , Roth 548; S c h e n d Reiter 627 P.2d whether due process v. 8 4 5 , 38 s u c h an i n t e r e s t i s e s t a b l i s h e d , Only i f of and A r t i c l e may p r o t e c t i o n s have been v i o l a t e d be c o n s i d e r e d . Appellant violates a claims liberty which impairs h i s makes no claim interest denial by of his imposing of false a b o u t him ation grounds or defamatory i n connection his claim on with the tenure request stigma on him employment. He a freedom t o o b t a i n o t h e r publicized but the statements his sole tenure fact being evalu- tenure was denied. In Roth, supra, the United States Supreme Court c o n s i d e r e d t h e c a s e of a n u n t e n u r e d u n i v e r s i t y t e a c h e r h i r e d for a f i x e d one-year term. S t a t e s t a t u t e provided s t a t u s was a v a i l a b l e o n l y a f t e r f o u r y e a r s o f employment. process Nevertheless, rights because Roth c l a i m e d year-to-year denial h e was g i v e n no tenure of h i s due notice or hearing prior t o h i s nonretention. The C o u r t f o u n d Roth had n o t been d e n i e d a liberty i n t e r e s t b e c a u s e t h e s t a t e had n o t imposed any s t i g m a on him w h i c h d e p r i v e d him o f o t h e r employment o p p o r t u n i t i e s n o r had i t impinged h i s "good name, 408 U.S. a t 5 7 3 , 92 S . C t . r e p u t a t i o n , honor o r i n t e g r i t y . " a t 2707, 33 L.Ed.2d a t 559. More r e c e n t l y i n B i s h o p v . Wood ( 1 9 7 6 ) , 426 U . S . 96 S.Ct. 2074, 48 L.Ed.2d p o l i c e m a n was d i s c h a r g e d w i t h o u t He claimed ordinance permanent a due which process limited employees to a 684, permanently employed a pretermination hearing. violation the because grounds inefficiency, or f a i l u r e t o perform d u t i e s . 341, for of a city discharge negligence, of unfitness The C o u r t s a i d t h e f a c t t h a t a n e m p l o y e e ' s d i s c h a r g e made him less a t t r a c t i v e t o other e m p l o y e r s was n o t a l o n e a d e p r i v a t i o n of a l i b e r t y i n t e r e s t . While t h e f a c t a p p e l l a n t d i d not receive tenure at EMC w i l l n o t b e n e f i t him i n h i s p u r s u i t o f o t h e r employment, i t d o e s n o t p l a c e s u c h a s t i g m a on him a s t o d e p r i v e him o f a liberty interest. Appellant a l s o claims a protected property i n t e r e s t . Roth, supra, interest. sets out a guide to determining I n Koth, t h e Court h e l d : ". . . To h a v e a p r o p e r t y i n t e r e s t i n a b e n e f i t , a p e r s o n c l e a r l y m u s t h a v e more t h a n such an a n a b s t r a c t need o r d e s i r e f o r i t . H e must h a v e more t h a n a u n i l a t e r a l e x p e c t a t i o n o f it. He m u s t , i n s t e a d , have a l e g i t i m a t e c l a i m of e n t i t l e m e n t t o it " 408 U.S. a t 5 7 7 , 92 S . C t . a t 2709, 33 L.Ed.2d a t 561. . . . The source of an entitlement i n t e r e s t may be f o u n d establishing i n s t a t e law o r in a property r u l e s and u n d e r - s t a n d i n g s e x i s t i n g b e t w e e n t h e i n d i v i d u a l and h i s e m p l o y e r . K o t h , 408 U . S . a t 5 7 7 , 92 S . C t . a t 2709, 33 L.Ed.2d I n R o t h ' s companion c a s e , P e r r y v . 4 0 8 U.S. 593, 92 S . C t . 2694, 33 L.Ed.2d a t 561. Sindermani ( 1 9 7 2 ) , 570, a teacher had t a u g h t i n t h e Texas s t a t e c o l l e g e system f o r t e n y e a r s under a s e r i e s of one-year disagreements with contracts. college When, policies, following h i s public his contract was not renewed, t h e t e a c h e r b ro u g h t an a c t i o n c l a i m i n g t h e d e c i s i o n infringed his right to freedom p r o c e d u r a l due p r o c e s s . of speech The C o u r t f o u n d t h a t , a formal c o n t r a c t u a l t e n u r e p r o v i s i o n , interest may exist and through a de denied him even w i t h o u t a protected property facto tenure agreement p r o m u l g a t e d by r u l e s and u n d e r s t a n d i n g s o f s t a t e o f f i c i a l s . The C o u r t a l s o n o t e d t h e l i k e l i h o o d o f t h e e x i s t e n c e o f s u c h a de facto agreement is greater s y s t e m e x i s t s . 408 U . S . where a t 6 0 2 , 92 S . C t . no explicit tenure a t 2700, 33 L.Ed.2d a t 580. Appellant argues that, having taught the requisite number of y e a r s and o b t a i n e d t h e a c a d e m i c r a n k of a s s i s t a n t professor, he h a s s a t i s f i e d t h e o b j e c t i v e tenure EMC at and thereby has requirements sufficient for entitlement to t e n u r e t o r e q u i r e due p r o c e s s p r o t e c t i o n s . Appellant (W.Va. 1978), fessor at a 249 relies primarily S.E.2d community 919, college on McLendon i n which sought an a v. Morton assistant writ of pro- mandamus claiming she was denied due process in the college's decision not to grant her tenure. The college's tenure regula- tions required the rank of assistant professor, six years of teaching service and full-time employment status in order to be eligible to apply for tenure. The further criterion for obtaining tenure, according to the regulations, was teaching competence . The West Virginia court consiaered whether the claimed property interest was a unilateral expectation or an entitlement. It noted that existing rules or understandings between the institution and the individual could give rise to a legitimate claim of entitlement and held that satisfaction of the basic eligibility standards to apply for tenure gave a sufficient entitlement to require due process protection. 249 S.E.2d at 925. In adopting its position, the West Virginia court recognized it was establishing a rule more restrictive than that of the United States Supreme Court and that it was guided by its distinctive state constitutional due process provision, 249 S.E.2d at 922. That provision states: "No person shall be deprived of life, liberty or property without due process of law and the judgment of his peers." West Virginia Constitution, Article 111, Section 10. As was established by this Court in Schend v. Thorson, supra, the question is one of whether a right has become vested. Only then is it protected by due process. This Court found there that a probationary police officer had no property right under Montana law and could have none until confirmation of his position as a permanent employee. "The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person nas already acquired in specific benefits." Roth, - 408 U.S. at 576, 92 S.Ct. at 2708, 33 L.Ed.2d at 560. The policies faculty members of Eastern applying for Montana College required tenure to present evidence showing excellence in teaching, research and public service. Given this requirement beyond the quantitative standards required for eligibility, we find that a protected right to tenure did not vest with appellant's eligibility alone. His satisfaction of the quantitative requirements simply entitled him to consideration for tenure but did not, on its own, establish an entitlement sufficient to constitute a protected property interest. Appellant also cites as sources of his claimed property interest the 1975-1977 faculty contract, which was extended through 1978, the codification of rank and tenure matters and the "traditional and promulgated policy of the institution." The faculty contract sets out the rules and criteria for tenure; the codif icat-ion clarifies the contract tenure provisions; and the policy to which appellant refers is the "Final Report on Promotion and Tenure for 1977-78" issued to the faculty by EMC President Van de Wetering. Among other things, the report refers to the primary responsibility of faculty colleagues in the faculty renewal review process. In essence, appellant argues that with the existence of these tenure procedures and policies he acquired a pro- tected property interest in them. Appellant claim: relies on Hillis v. Meister three cases to (.l971), 82 N.M. support this 474, 483 P.2d 1314; Abramson v. Board of Regents University of Hawaii ( 1 9 7 6 ) , 56 Haw. of the 680, 548 P.2d California State ( 1 9 7 8 ) , 148 Cal.Rptr. These instance. an conduct The of College, are not persuasive professor found parties, the and consider in this that E a s t e r n N e w Mexico through provisions whether the contract the of handbook had become p a r t o f t h e i r c o n t r a c t . not al. et supra, interpreted the teaching contract court the and Trustees 1, 2 1 C a l . 3 d 763, 582 P.2d 8 8 . assistant University. and O f s e v i t v . University authorities Hillis, between 253; course the of faculty The c o u r t d i d constituted a property interest. I n Abramson, s u p r a , t h e Supreme C o u r t o f Hawaii f o u n d t h a t t h e p u b l i s h e d t e n u r e p o l i c y of an e d u c a t i o n a l i n s t i t u t i o n m i g h t be i n c o r p o r a t e d i n t o t h e employment c o n t r a c t o f a p r o b a t i o n a r y f a c u l t y member. t e n u r e p r o v i s i o n s of The c o u r t f o u n d , h o w e v e r , t h e t h e f a c u l t y handbook had no f o r c e o f law b e c a u s e t h e r e had been no showing o f the rule-making procedures of the compliance with state's administrative p r o c e d u r e a c t i n e s t a b l i s h i n g t h e p r o v i s i o n s . The c o u r t a l s o f o u n d t h a t none o f t h e w r i t t e n p o l i c i e s of the university p r o v i d e d a s s u r a n c e of c o n t i n u e d employment s o a s t o e s t a b l i s h a protected property i n t e r e s t . The Supreme C o u r t of C a l i f o r n i a , found that a faculty member had been i n Ofsevit, supra, improperly denied r e a p p o i n t m e n t a t S a n F r a n c i s c o S t a t e U n i v e r s i t y on t h e b a s i s of his political Ainendment rights. activities Although in violation of his First t h e c o u r t f o u n d t e a c h e r s were e n t i t l e d t o e n f o r c e m e n t o f t h e r u l e s and r e g u l a t i o n s a d o p t e d by a b o a r d o f e d u c a t i o n b e c a u s e t h e y were i n e f f e c t p a r t o f the teaching contract, i t made no finding of a constitu- t i o n a l l y protected property i n t e r e s t . Through t h e s e c a s e s a p p e l l a n t a r g u e s t h a t r u l e s and regulations higher which have education f a c u l t y member's been are adopted impliedly by institution expressly or an part employment c o n t r a c t a n d , a s such, of of a are the s o u r c e of h i s c l a i m e d p r o p e r t y i n t e r e s t . A s applied t o t h i s case, three questions: a p p e l l a n t ' s argument r a i s e s Were t h e c o d i f i c a t i o n and t h e p r e s i d e n t ' s lrjere t h e c o n t r a c t s t a t e m e n t p a r t of t h e f a c u l t y c o n t r a c t ? procedures followed? I f n o t , does t h e c o n t r a c t e s t a b l i s h a protected property i n t e r e s t ? This Court recently held that an employee handbook d i s t r i b u t e d a f t e r a n employee is h i r e d d o e s n o t become p a r t of t h a t e m p l o y e e ' s employment Montana I n s u r a n c e Co. 39 S t . R e p . been had 16. breached not been (1982), contract. - Mont . -, Gates claimed her because provisions followed. G a t e s v. This L i f e of 638 P.2d 1 0 6 3 , employment c o n t r a c t had of the Court employee handbook found the handbook c o n s t i t u t e d a u n i l a t e r a l s t a t e m e n t of company p o l i c i e s . handbook terms were meeting of t h e minds. n o t p a r t of G a t e s ' not bargained for and there was The no The C o u r t a l s o f o u n d t h e handbook was c o n t r a c t when s h e was h i r e d and d i d n o t c o n s t i t u t e a m o d i f i c a t i o n o f t h e c o n t r a c t b e c a u s e t h e r e was no new and i n d e p e n d e n t c o n s i d e r a t i o n f o r i t s t e r m s . 638 P.2d a t 1 0 6 6 , 39 S t . R e p . The drafted clarify document a t 19. codification by on the Tenure both was Rank the and faculty approved by Gates, which Committee contract the appellant and relies specifically handbook. was to The Coalition/Administration Committee a s n o t i n c o n f l i c t w i t h t h e c o n t r a c t o r handbook. The document also was specified as the operating manual for the Rank and Tenure Committee, limited informational negotiations. use and subject to to reference and future contract Although the codification is by its nature a pseudo-extension of the contract, using the Gates rationale, it is not part of the contract. The faculty contract specifies a procedure for granting tenure which is set out below: "The procedure for granting tenure shall be as follows: "(1) A committee of the appropriate administrative unit, which shall include tenured faculty members, if available, and including the Administrative Unit Head, shall recommend to the Rank and Tenure Committee the names of those eligible members of the unit whom they consider to be qualified for tenure. The recommendation of the appropriate administrative unit committee shall be completed no later than December 1, and by that date the appropriate administrative unit committee shall notify in writing the eligible faculty members who have not been recommended for tenure and the committee shall send a copy of the notice to the President, but the applications of all eligible faculty members shall. be forwarded to the Rank and Tenure Committee. "(2) The College Rank and Tenure Committee shall review all tenure applications received from the units and shall, by March 1, submit its recommendations (positive or negative) to the Academic Vice President. " (3) Those recommendations which are approved by the President shall be submitted to the Board of Regents for final action. Upon Board of Regents approval, the affected faculty members shall be awarded tenure effective with the commencement of the next academic year . "(4) No faculty member shall be awarded tenure solely because the aforesaid procedures were not followed. The President shall have the right to act independently if the committee(s) fail to act within the time limit specified. " The primary breach of procedure claimed by appellant is an unfavorable recommendation which was forwarded by the Dean of the Liberal Arts School to president out of proper sequence. the academic vice- Appellant argues that according to the procedure, the dean's letter should have been forwarded to the College Rank and Tenure Committee and then, together with a11 recommendations, to the academic vice-president. received Instead, the the dean's unfavorable academic vice-president recommendation and, only later, received the committee's favorable review. The sequence to which appellant refers, however, is specified not in the contract document but in the codification. Assuming arguendo that the codification was part of the contract, we still find no breach. provision regarding the deans states: The codification "The Rank and Tenure Committee will then request the respective deans to examine each applicant's package by December 15, and make a written recommendation on each one." Here, the dean made the requested recommendation to the committee and sent a copy of his recommendation to the academic vice-president. The codification did not restrict or preclude the dean's action, and we find no breach of appellant's contract procedure. The president's statement, which appellant contends is a "published policy" and therefore part of his contract, was made May 2 3 , 1977 via a memorandum entitled Final Report of Promotion and Tenure for 1977-78. The report included a statement of the basis upon which the president promotion and acknowledged tenure cases that year. reviewed The president the importance of the recommendation of the candidate's department colleagues in these matters and stated: "It would be inappropriate for me to interfere with that recommendation for other than procedural reasons except under extraordinary circumstances." This statement was made at a time of flux in the bMC administration when the college had no administrative vicepresident and President Van de Wetering administrative step in the process. was the only The statement also was made before the contract codification was completed. The statement was not intended to be or presented as a strict and on-going policy and given the context in which it was made cannot logically be construed as such. Regardless of the title given to the statement, however, we find the president's action not contradictory to it. In fact, the circumstances the president faced here were extraordinary. No reasonable construction of the president's statement could infer an intent to procedur ally ignore the recommendations of members of the administration in all cases. ordinarily President Van de Wetering the tenure applications consistent recommendations. he testified that received had Here, he was faced not only with inconsistent recommendations but also with a tie-vote that necessitated his final determination contradict with the recommendations of two of the four reviewing bodies. Given this situation, the president requested both the dean and the vice-president to reevaluate Dr. Akhtar's applica- tion excluding the student evaluation. Their recommendations remained the same. The president then considered all the information before him and determined that Dr. Akhtar should not receive tenure. We find the president's actions did not contradict his statement nor did contract. they breach appellant's This Regents Court recently - (1981), held, Mont . in Keiser v. Board of , 630 P.2d 1 9 4 , 38 S t . R e p . 6 7 4 , t h a t t h e p r o v i s i o n s o f a t e n u r e d p r o f e s s o r ' s employment c o n t r a c t which s e t o u t s a l a r y and c o n t r a c t t e r m were t e n u r e d along w i t h academic rank. construction of The C o u r t ' s t h e r e was t h e employment c o n t r a c t which g r a n t e d Dr. Keiser "continuous tenure." in part, concern on a t w o - f o l d The C o u r t ' s d e c i s i o n was b a s e d , pu r p o s e of t e n u r e : academic freedom and e c o n o m i c s e c u r i t y . K e i s e r i s n o t , however, a p p l i c a b l e t o t h e c a s e b e f o r e us. There, Dr. Keiser had been granted tenure. Her p r o p e r t y i n t e r e s t i n t h a t t e n u r e c l e a r l y had v e s t e d and t h e q u e s t i o n t o be r e s o l v e d was what t e n u r e c o n s i s t e d o f . the is question an entirely Here different one--whether tenure Eastern a protected r i g h t has vested. Dr. Akhtar applied College according t o the for at formal t e n u r e procedures. procedures provided f o r e v a l u a t i o n of a t t h e t i m e of teaching, vice. Those the tenure applicant a p p l i c a t i o n on t h e b a s i s o f research Montana and p u b l i c s e r v i c e , excellence i n and community ser- The p r o c e d u r e s d i d n o t e s t a b l i s h a l e g a l e x p e c t a n c y i n c o n t i n u e d employment b u t r a t h e r s e t o u t a means by which W f i n d no p r o p e r t y e a d i s c r e t i o n a r y d e c i s i o n would be made. i n t e r e s t r e q u i r i n g due p r o c e s s h e r e . Appellant failure number to adopt seven specifies as appellant's which states error the District proposed conclusion respondents' conduct Court's of law violated A r t i c l e 11, S e c t i o n 4 , o f t h e Montana S t a t e C o n s t i t u t i o n and t h e F o u r t e e n t h Amendment t o t h e United S t a t e s C o n s t i t u t i o n i n t h a t a p p e l l a n t was t r e a t e d d i f f e r e n t l y t h a n o t h e r s i m i - l a r l y s i t u a t e d c a n d i d a t e s f o r t e n u r e and p r o m o t i o n a t EMC. While neither party specifically argues the equal p r o t e c t i o n i s s u e on a p p e a l , i t a p p e a r s t o be merged i n t h e other c o n s i d e r a t i o n s before us. For t h a t reason, we w i l l consider it h e r e . The Board o f R e g e n t s h a s g e n e r a l . c o n t r o l and s u p e r v i s i o n of t h e Montana u n i v e r s i t y s y s t e m i n c l u d i n g a d u t y t o appoint both president and Section 20-25-301(1)(11), vidual institution, faculty institution. an i n d i - i s charged w i t h t h e immediate c o n t r o l and management of t h a t u n i t . MCA each The p r e s i d e n t of MCA. in turn, for S e c t i o n 20-25-305 ( 1), . The t e n u r e s y s t e m i s among t h e p r o c e d u r e s m a i n t a i n e d under t h i s authority. Therefore, a c t i o n s by t h e p r e s i d e n t and t h e Board of R e g e n t s r e g a r d i n g t e n u r e a r e s t a t e a c t i o n s , and a d i s c r i m i n a t o r y a p p l i c a t i o n o f t h e t e n u r e p r o c e s s would result U.S. i n an u n c o n s t i t u t i o n a l Const., Amend. XIV, d e n i a l of equal protection. S e c t i o n 1; Mont. Const., Art. 11, S e c t i o n 4. A p p e l l a n t c l a i m s h e was d i s c r i m i n a t e d a g a i n s t i n t h a t he was treated differently from b e c a u s e a d i f f e r e n t s t a n d a r d of his tenure evaluation other tenure candidates e x c e l l e n c e was a p p l i e d than t o others. In s u p p o r t of to his c l a i m , a p p e l l a n t p o i n t s most s p e c i f i c a l l y t o comparisons o f his and other candidates' publication employment a t E a s t e r n Montana C o l l e g e , lished one article. record. Since h i s appellant had pub- Two c a n d i d a t e s who had p u b l i s h e d no a r t i c l e s w h i l e a t EMC w e r e g r a n t e d t e n u r e . We agree with the F o u r t h C i r c u i t which found that " n o t every d i f f e r e n c e i n promotion t r e a t m e n t - - p a r t i c u l a r l y a d i f f e r e n c e not i n r e s o l v i n g q u e s t i o n s of primary f a c t s but in evaluating facts--rises t o the l e v e l of constitutional d e p r i v a t i o n e i t h e r u n d e r e q u a l p r o t e c t i o n o r due p r o c e s s . " Clark v. Clark, Whiting 1 9 7 9 ) , 607 F.2d (4th Cir. an a s s o c i a t e p r o f e s s o r 634, 638. c l a i m e d he was d e n i e d In equal p r o t e c t i o n b e c a u s e d i f f e r e n t s t a n d a r d s were u s e d i n e v a l u a t i n g h i s p r o m o t i o n q u a l i f i c a t i o n s t h a n were u s e d i n p a s s i n g on p r o m o t i o n s o f o t h e r f a c u l t y members. A t EPIC t h e e v a l u a t i o n o f t e n u r e c a n d i d a t e s was made i n t h r e e b a s i c a r e a s : t e a c h i n g , r e s e a r c h and p u b l i c s e r v i c e , and community s e r v i c e . P u b l i c a t i o n was o n e o f a number o f f a c t o r s considered in the process. Dean tenure McRae candidates research and performance testified using service in each q u a n t i f i a b l e manner. the and for evaluated criteria attempted in B e c a u s e of at to all of teaching, measure least eight a their partially t h e i n e v i t a b i l i t y of t h e dean each candidate m a t e r i a l s s u b m i t t e d t o him. he basic category subjectivity in the process, composite that and some t e s t i f i e d h e made a then reevaluated the He t h e n d e v e l o p e d a r a n k o r d e r o f t h e c a n d i d a t e s i n which Dr. A k h t a r r a n k e d e i g h t h . P r e s i d e n t Van d e W e t e r i n g t e s t i f i e d t h a t t h e t e n u r e evaluations areas of demanded a weighing consideration for all and balancing of the candidates. all the Although t h e r e was s h a r p d i s a g r e e m e n t among a p p e l l a n t ' s c o l l e a g u e s , the f i n a l d e t e r m i n a t i o n was that appellant's professional p e r f o r m a n c e d i d n o t meet t h e o v e r a l l p r o f e s s i o n a l academic s t a n d a r d s needed t o g r a n t t e n u r e . The D i s t r i c t C o u r t c o n c l u d e d t h e d e n i a l o f t e n u r e was n o t a r b i t r a r y b u t was a n e x e r c i s e o f a c a d e m i c j u d g m e n t . It a l s o f o u n d no e v i d e n c e had been p r e s e n t e d which indicated t h e d e n i a l r e s u l t e d from d i s c r i m i n a t i o n o r t h a t t h e p r o c e d u r e s fo l l o we d were i n t e n d e d t o p e n a l i z e a certain class. W agree. e The s t a t e h a s a s t r o n g interest i n maintaining the q u a l i t y and a c a d e m i c f r e e d o m o f i t s h i g h e r e d u c a t i o n s y s t e m . The t e n u r e p r o c e s s s e r v e s t h a t d u a l p u r p o s e , and e v a l u a t i n g a number o f a r e a s of p e r f o r m a n c e p r o v i d e s a b r o a d b a s i s f o r determination. Absent appellant's an a r b i t r a r y or tenure discriminatory treatment of can no d e n i a l of application, we find equal protection. Appellant contends the District Court erred in r e f u s i n g t o r e c e i v e i n t o e v i d e n c e and h e a r t e s t i m o n y on h i s E x h i b i t No. 25, a report from a n a p p e a l s c o m m i t t e e i n t h e t e n u r e m a t t e r of Dr. J e r o m e H u r l e y . The e v i d e n c e was r e f u s e d lack of relevance. W disagree. e by t h e D i s t r i c t C o u r t f o r Appellant argues r e l e v a n t i n t h a t i t would h a v e shown dural error, the prejudice and the the which has "any was " a p a t t e r n of procefactual t a i n t e d [ h i s ] t e n u r e p r o c e s s from t h e b e g i n n i n g Evidence evidence tendency error that ." to make the e x i s t e n c e of any f a c t t h a t i s o f c o n s e q u e n c e t o t h e d e t e r m i n a t i o n of t h e a c t i o n more p r o b a b l e o r l e s s p r o b a b l e t h a n i t would be w i t h o u t t h e e v i d e n c e " Mont .R. Evid is r e l e v a n t . Rule 4 0 1 , . Here, t h e e x i s t e n c e of a p a t t e r n of p r o c e d u r a l e r r o r which a p p e l l a n t c l a i m s would h a v e been shown by t h e e v i d e n c e was n o t a t i s s u e . The a p p e a l s c o m m i t t e e whose r e p o r t t h e a p p e l l a n t o f f e r e d was n o t i n e x i s t e n c e d u r i n g Dr. Akhtar's tenure evaluation. Whether the academic vice-president a c t e d i m p e r m i s s i b l y i n t h e t e n u r e a p p l i c a t i o n p r o c e s s of a different a individual under d i f f e r e n t academic year a different is n o t r e l e v a n t contract in t o his actions i n appellant's tenure evaluation. Appellant refusing union to also allow activities claims the of the District Court erred regarding testimony Dr. of Maury Evans Akhtar and other faculty. in This e v i d e n c e t o o was r e f u s e d by t h e D i s t r i c t C o u r t a s i r r e l e vant. A p p e l l a n t made a n o f f e r o f p r o o f mony of Maury Evans that one member through t h e testiof Eastern Montana C o l l e g e f a c u l t y who a p p l i e d f o r t e n u r e a t t h e same t i m e Dr. A k h t a r d i d was a n a c t i v e member o f t h e AAUP, t h e c o l l e g e ' s f a c u l t y o r g a n i z a t i o n , and i t s n e g o t i a t i n g team; h e r e s i g n e d from the negotiating team shortly before he applied for t e n u r e which h e was g r a n t e d ; D r . A k h t a r , who r e m a i n e d a c t i v e i n h i s u n i o n , was n o t g r a n t e d t e n u r e . Appellant claimed i n t h e o r i g i n a l complaint a v i o l a t i o n of s e c t i o n 49-3-201, promotion of MCA, which r e q u i r e s e v a l u a t i o n and s t a t e and l o c a l g o v e r n m e n t o f f i c i a l s be made "on t h e b a s i s of m e r i t and q u a l i f i c a t i o n s w i t h o u t r e g a r d t o . . . political ideas . . . I' It is a p p a r e n t t h a t c e r t a i n p o l i t i c a l i d e a s c o u l d be i n f e r r e d from u n i o n a c t i v i t y , a n d , therefore, t h e o f f e r e d e v i d e n c e was r e l e v a n t to a fact a t issue. The o f f e r e d t e s t i m o n y , h o w e v e r , would h a v e shown o n l y t h a t Maury Evans resigned from h i s p o s i t i o n on t h e union n e g o t i a t i n g t e a m , n o t from t h e AAUP, p r i o r t o h i s t e n u r e app l i c a t i o n and t h a t h e was g r a n t e d t e n u r e . Had t h e e v i d e n c e b e e n a d m i t t e d , i t would h a v e shown t h a t o n e u n i o n member was g r a n t e d t e n u r e and a n o t h e r was n o t . W affirm the District e Court's ruling. Respondents Court's refusal specify to admit as Dr. cross-error Jay the District Kirkpatrick's testimony r e g a r d i n g a s t a t e m e n t a t t r i b u t e d t o him by Dr. A k h t a r . D u r i n g Dr. A k h t a r ' s d i r e c t e x a m i n a t i o n , t h e f o l l o w i n g exchange took place: "Q. A f t e r you were d e n i e d t e n u r e , d i d J a y K i r k p a t r i c k make any s t a t e m e n t s a s t o r e a s o n s for the denial? "A. Yes Ma'am, a t o n e o c c a s i o n h e s a i d t h a t , oh D r . , h e is a f i n e f e l l o w . I l i k e him very much, b u t h e h a s b e e n a s s o c i a t e d w i t h t h e wrong p e o p l e . A n o t h e r o c c a s i o n , h e s a i d t h a t i f i n p o l i t i c s you a r e c a u g h t on t h e wrong end of t h e f e n c e , t h a t ' s what you g e t , and t h a t ' s e x a c t l y what h e g o t . " No o b j e c t i o n was r a i s e d a t t h a t t i m e t o e i t h e r t h e q u e s t i o n o r t h e answer. L a t e r i n t h e t r i a l K i r k p a t r i c k was c a l l e d by r e s p o n dents in rebuttal t o Akhtar's respondents' counsel testimony. questioned In that context, Kirkpatrick s t a t e m e n t Akhtar a t t r i b u t e d t o Kir k p a t r i c k : h a v i n g a c o n v e r s a t i o n w i t h Mr. A k h t a r ? " objected claiming Kirkpatrick's regarding the "Do you r e c a l l Appellant's counsel testimony was limited to r e b u t t a l and A k h t a r had n o t t e s t i f i e d a b o u t a n y c o n v e r s a t i o n between A k h t a r and K i r k p a t r i c k . the objection, respondents' Following an o v e r r u l i n g o f counsel asked Kirkpatrick w h e t h e r h e had a c o n v e r s a t i o n p e r t a i n i n g t o t h e d e c i s i o n t o deny Akhtar t e n u r e . K i r k p a t r i c k a n s w e r e d t h a t he had s u c h a conversation with a personal veterinarian. At that point f r i e n d of Akhtar the court whether t h e c o n v e r s a t i o n i n v o l v e d Akhtar and a l o c a l asked K i r k p a t r i c k . When K i r k p a t r i c k responded that Akhtar nad not been present, the court sustained appellant's previous objection. The source of this issue is appellant's reference to statements by Kirkpatrick which is set out above. No objection was made to appellant's statement when it was made. this error. Therefore, Court will not determine Green v. Green (1978), 176 Mont. 532, 579 P.2d 1235; Dieruf v. Gollaher (1971), 156 Mont. 440, 481 P.2d 322. Appellant's attribution of statements to Kirkpatrick, in fact, did not indicate to whom they were made. question then becomes whether testimony was properly within Kirkpatrick's the scope of The offered rebuttal. Respondents argue Kirkpatrick would have testified that the context of the statement appellant attributed to him was a discussion of appellant's adherence to tne no-research, no-publication philosophy of a faction of the EMC faculty. In that context, according to respondents, Kirkpatrick would have testified he had discussed his disappointment with appellant's research and publication record. Nhile respondents carefully set out this argument in their brief, they made no such offer to the District Court. in the absence of an offer of proof to the District Court, tnis Court Caplice Co. will not review the (1903), 28 Mont. ruling. Tague v. John 51, 72 P. 297; Trogdon v. Kanson Sheep Co. (1914), 49 Mont. 4, 139 P.% Burlington Northern (1980), - Mont . 792; Runkle v. , 613 P.2d 982, 37 St.Rep. 995. Affirmed. / Justice We concur: '%u*-&.4% n Chief Justice &norable Robert M. Holter, District Judge, sitting in place of Mr. Justice Sheehy / Mr. J u s t i c e Frank B. M o r r i s o n , J r . , d i s s e n t i n g : I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n . I do n o t t a k e i s s u e w i t h t h e f a c t s a s t h e y a r e s e t f o r t h i n t h e majority opinion. However, t h e y need t o b e supplemented. I n addition t o the f a c t s set f o r t h i n the majority o p i n i o n , i t i s i m p o r t a n t t o n o t e t h a t t h e a p p e l l a n t , M. I q b a l A k h t a r , s i g n e d a c o n t r a c t f o r t h e s c h o o l y e a r 1978-79. On May 23, 1977, t h e p r e s i d e n t of E a s t e r n Montana C o l l e g e i s s u e d a memorandum c o n t a i n i n g t e n u r e p o l i c y . T h a t document provided, i n p a r t : "By l o n g t r a d i t i o n , t h e primary r e s p o n s i b i l i t y f o r t e n u r e d e c i s i o n s must r e s t w i t h o n e ' s colleagues i n h i s department f o r they a r e b e s t q u a l i f i e d t o judge t h e p r o b a t i o n a r y f a c u l t y member and t o a s s e s s h i s r o l e i n t h e p l a n s f o r t h e f u t u r e of t h e d e p a r t m e n t . The AAUP 'Redbook' upon which much of t h e C o l l e c t i v e Bargaini n g C o n t r a c t h a s been based s t a t e s c l e a r l y , page n i n e , ' S t a t e m e n t on P r o c e d u r a l S t a n d a r d s i n t h e Renewal o r Non-renewal of F a c u l t y Appointm e n t ' , t h a t ' F a c u l t y s t a t u s and r e l a t e d m a t t e r s a r e primarily a faculty responsibility. Any recommendation r e g a r d i n g r e n e w a l of t e n u r e s h o u l d b e r e a c h e d by t h e a p p r o p r i a t e f a c u l t y group i n a c c o r d a n c e w i t h p r o c e d u r e s approved by t h e f a c u l t y . ' The 'Redbook' f u r t h e r s t a t e s t h a t 'The c o n s c i e n t i o u s judgment of t h e c a n d i d a t e ' s d e p a r t m e n t a l autonomy i n p r o f e s s i o n a l ( p . 1 2 ) I t would judgments i s t o p r e v a i l . ' be i n a p p r o p r i a t e f o r me t o i n t e r f e r e w i t h t h a t recommendation f o r o t h e r t h a n p r o c e d u r a l r e a s o n s e x c e p t under e x t r a o r d i n a r y c i r c u m s t a n ces. - " (Emphasis added.) The a p p e l l a n t was d e n i e d t e n u r e a l t h o u g h h e r e c e i v e d a f a v o r a b l e recommendation from t h e c o l l e g e " r a n k and t e n u r e committee." Under t h e p r e v i o u s l y announced p o l i c y s u c h a c t i o n would o n l y be t a k e n where it a p p e a r e d t o t h e p r e s i d e n t t h a t "extraordinary circumstances" e x i s t e d f o r overriding t h e c o m m i t t e e ' s recommendation. The e f f e c t o f s u c h a n announced p o l i c y was t h e s u b j e c t of d i s c u s s i o n by t h i s C o u r t i n G a t e s v . L i f e of Montana I n s u r a n c e Co. ( 1 9 8 2 ) , 39 St.Rep. of L i v e s t o c k ( 1 9 8 2 ) , 39 St.Rep. 1 6 , and Nye v. Department 49. I n G a t e s , t h e employer had promulgated c e r t a i n p e r s o n n e l p o l i c i e s s u b s e q u e n t t o t h e t i m e t h e employee was h i r e d . The C o u r t h e l d such promulgated p o l i c i e s were n o t p a r t of t h e employment c o n t r a c t , b u t t h e employee was e n t i t l e d t o t h e b e n e f i t of t h o s e p o l i c i e s . The f o l l o w i n g e x c e r p t i s t a k e n from t h e C o u r t ' s o p i n i o n : "The c i r c u m s t a n c e s of t h i s c a s e a r e t h a t t h e employee e n t e r e d i n t o a n employment c o n t r a c t t e r m i n a b l e a t t h e w i l l of e i t h e r p a r t y a t any time. The employer l a t e r promulgated a handbook of p e r s o n n e l p o l i c i e s e s t a b l i s h i n g c e r t a i n procedures with regard t o terminations. The employer need n o t have done s o , b u t presumably sought t o secure an o r d e r l y , cooperative and l o y a l work f o r c e by e s t a b l i s h i n g uniform policies. The employee, h a v i n g f a i t h t h a t s h e would b e t r e a t e d f a i r l y , t h e n developed t h e peace of mind a s s o c i a t e d w i t h j o b s e c u r i t y . I£ th i t s own - -e employer h a s f a i l e d t o f o l l o w - -p o l i c i e s , t h e p e a c e of m i n d o f - employees --its is and a n i s done. - shattered - - injustice -"We h o l d t h a t a c o v e n a n t of good f a i t h and f a i r d e a l i n g was i m p l i e d i n t h e employment contract t o the appellant. There remains a g e n u i n e i s s u e of m a t e r i a l f a c t which p r e c l u d e s a summary judgment, i . e . , whether t h e respondent f a i l e d t o afford appellant t h e process r e q u i r e d and i f s o , whether t h e r e s p o n d e n t t h e r e b y b r e a c h e d t h e c o v e n a n t of good f a i t h G a t e s , 39 St.Rep. a t 20. and f a i r d e a l i n g . " (Emphasis a d d e d . ) The c r u x of Gates i s t h a t , once a n employer h a s announced a p o l i c y , t h e employer must f o l l o w t h e p o l i c y even though i t i s n o t p a r t of t h e employment c o n t r a c t . W h e l d t h a t "good e f a i t h and f a i r d e a l i n g " mandates such a p r o c e s s . I n - a s t a t e employee was promoted and t h e n fired. Nye, One i s s u e on a p p e a l w a s whether a c l a i m f o r "wrongful d i s c h a r g e " could l i e . T h i s C o u r t h e l d t h a t employment p o l i c i e s must b e f o l l o w e d and t h a t f a i l u r e t o do s o may r e n d e r t h e employer l i a b l e f o r t h e t o r t of "wrongful d i s c h a r g e . " i n v o l v e d was s u b j e c t t o " t e r m i n a t i o n a t w i l l . " The employee The f o l l o w i n g e x c e r p t s a r e t a k e n from t h e C o u r t ' s r e c e n t o p i n i o n : "The d e t e r m i n a t i o n of whether t h e c a u s e of a c t i o n a r i s e s rests upon whether a n u n f a i r o r u n j u s t i f i e d t e r m i n a t i o n was i n v i o l a t i o n of p u b l i c p o l i c y . " P o l i c y 3-0130 s t a t e s t h a t 'when p u n i t i v e d i s c i p l i n e i s n e c e s s a r y , j u s t c a u s e , docum e n t a t i o n o f f a c t s and due p r o c e s s a r e r e quired. ' "We f i n d t h a t t h e Department o f L i v e s t o c k f a i l e d t o a p p l y i t s own r e g u l a t i o n s t o M a r g a r e t Nye, and t h e r e f o r e v i o l a t e d p u b l i c policy." Nye, 39 St.Rep. a t 53-54. W e h e l d i n Nye t h a t a n employer, who f a i l s t o f o l l o w - i t s own employment p o l i c i e s , may be l i a b l e f o r w r o n g f u l discharge. Nye, G a t e s and - t a k e n t o g e t h e r , have expanded t h e Montana law p e r t a i n i n g t o employer-employee r e l a t i o n s h i p s . The law e n u n c i a t e d i n t h e s e two c a s e s c o n t r o l s t h e outcome of Akhtar v . E a s t e r n Montana C o l l e g e . The r e c o r d i n t h e c a s e b e f o r e u s i s d e v o i d of e v i d e n c e which c o u l d c o n s t i t u t e " e x t r a o r d i n a r y c i r c u m s t a n c e s . " Under t h e employment p o l i c y a r t i c u l a t e d by t h e c o l l e g e p r e s i d e n t on May 2 3 , 1977, " e x t r a o r d i n a r y c i r c u m s t a n c e s " p r o v i d e t h e o n l y b a s i s f o r o v e r r i d i n g a recommendation of t h e r a n k and t e n u r e committee. Here, t h e recommendation of t h e committee was n o t f o l l o w e d , and no e x t r a o r d i n a r y c i r c u m s t a n c e s were shown . Although t h i s a p p e l l a n t s o u g h t t e n u r e and w a s d e n i e d , t h e r e s u l t of t h e p r o c e s s was t o t e r m i n a t e h i s s e r v i c e s . The c a s e c a n n o t , t h e r e f o r e , be d i s t i n g u i s h e d from Gates and Nye. I would remand t h i s c a s e t o t h e a d m i n i s t r a t i v e l e v e l w i t h i n s t r u c t i o n s t o implement t h e e x i s t i n g c o l l e g e employment p o l i c i e s and make a p p r o p r i a t e I join i n the dissent of

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