This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2562

Calvin Kobluk,

Relator,

vs.

C. Eugene Allen,

Respondent.

Filed July 22, 1997

Reversed and remanded

Harten, Judge

University of Minnesota

Robert J. Hennessey, Charles J. Lloyd, Reuben A. Mjaanes, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Relator)

Mark B. Rotenberg, General Counsel, Tracy M. Smith, Lorie S. Gildea, Associates General Counsel, University of Minnesota, 325 Morrill Hall, 100 Church Street, S.E., Minneapolis, MN 55455 (for Respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Relator Calvin Kobluk challenges University of Minnesota President Nils Hasselmo's decision rejecting a University Senate Judicial Committee's recommendation that Kobluk's tenure file be reviewed for a third time. Because we find that Hasselmo violated procedural tenure regulations in denying Kobluk tenure, we reverse and remand.

D E C I S I O N

1. Standard of Review

Kobluk appeals by writ of certiorari pursuant to Minn. Stat. § 606.01-.06 (1996). Our review is limited to:

[A]n inspection of the record of the administrative tribunal, and this court is confined to questions affecting the regularity of the proceedings and, as to the merits of the controversy, whether the determination was arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it.

Chronopoulos v. University of Minn., 520 N.W.2d 437, 441 (Minn. App. 1994) (citing Ganguli v. University of Minn., 512 N.W.2d 918, 921 (Minn. App. 1994)), review denied (Minn. Oct. 27, 1994).

2. Kobluk Tenure Proceedings

The University of Minnesota holds a constitutional grant of power. Minn. Const. art. XIII, § 3. The Regulations Concerning Faculty Tenure collectively constitute a contract between the university and its faculty. Univ. Minn. Tenure Regs. § 2.1. Kobluk alleges several violations of this contract that he claims result in the arbitrary denial of tenure to him.

Kobluk alleges that Hasselmo violated section 15.5 of the tenure regulations by rejecting the recommendations of two Judicial Committee panels chaired by Wells and Imholte (respectively, Wells panel and Imholte panel) without providing important substantive reasons for his doing so. Section 15.5 of the tenure regulations state:

The President may impose action less favorable to the faculty member only for important substantive reasons, which must be stated in writing, with specific detailed reference to the report of the Judicial Committee, the evidence presented, and the policies involved.

Univ. Minn. Tenure Regs. § 15.5.

Initially, Hasselmo concurred with the Wells panel recommendation that investigation reports on Kobluk be removed from Kobluk's tenure file because the reports were highly prejudicial and resulted from a poorly conducted investigation. Hasselmo, however, ultimately rejected the Wells panel's recommendations and included the reports in Kobluk's file prior to it being sent to Provost Allen for re-review.

Kobluk contends that Hasselmo's decision to reject the Wells panel's recommendation and include the investigation reports in his tenure file was arbitrary and unreasonable. In a letter regarding this decision, Hasselmo stated that Allen was to review Kobluk's file on the basis of Kobluk's "academic and scholarly qualifications," and Hasselmo included the investigation reports to provide Allen with the "necessary procedural background, and to prevent any possible misunderstanding." Kobluk alleges that this explanation does not constitute an "important substantive reason" under section 15.5. On review, academic judgments are afforded great latitude, because scholarship decisions require expert evaluations not readily adapted to the procedural tools of judicial decision-making. Zahavy v. University of Minn., 544 N.W.2d 32, 36 (Minn. App. 1996), review denied, (Minn. May 9, 1996). We are not in a position to say that Hasselmo's reasons for including the investigation reports were not "important" or "substantive." Accordingly, we find no abuse of discretion by Hasselmo in ultimately deciding to include the investigation reports in Kobluk's file.

The second issue is whether Hasselmo violated the regulation by conferring about Kobluk's tenure with Dean Thawley and Professor Fetrow and failing to notify Kobluk of the communication. Section 15.5 of the tenure regulations states

In determining what action to take, the President may consult privately with any administrators, including attorneys, who have had no previous responsibility for the decision at issue in the case and have not participated in the presentation of the matter to the Judicial Committee. The President may not discuss the case with any administrator who was responsible for the decision at issue in the case or who participated in the presentation of the matter to the Senate Judicial Committee. Such administrators may communicate with the President in writing, but only if the full text of the communications is given to the faculty member and the faculty member is given a reasonable opportunity to respond to it.

(Emphasis added.)

Here, letters in the record embody Fetrow/Hasselmo and Thawley/Hasselmo correspondence during the time immediately following publication of the Wells panel's recommendations and Hasselmo's assignment of the case to Allen for re-review. The three also met in August 1995, together with Provost Brody, to further discuss the matter. Kobluk was not copied on any of the letters; nor was he informed of the meeting or provided with the full text of the communications.

We conclude that this action by Hasselmo violated section 15.5. All of these persons were administrators who had to some extent "previous responsibility for the decision at issue." Id. Moreover, Hasselmo tacitly admitted that the correspondence violated the regulation; he wrote to Fetrow and asked him to stop corresponding with him about Kobluk for fear of exposing the university to liability.

Finally, Kobluk claims that Hasselmo's decision to reject the Imholte panel's recommendation for a third review (but instead affirming Allen's recommendation to deny tenure to Kobluk) was not supported by important substantive reasons. The Imholte panel found that Allen's review of the investigation reports and his reference in the tenure denial letter to Kobluk's admitted propositioning of a female student was evidence of Allen considering "immaterial or improper factors." The Imholte panel found that Allen's review violated Univ. Minn. Tenure Regs. § 7.7(e) and (f) which provide:

The Judicial Committee will not base its ruling on the merits of the decision itself, but will review allegations that the decision was based in significant degree upon any of the following:

(e) Demonstrable material prejudicial mistakes of fact concerning the faculty member's work or conduct;

(f) Other immaterial or improper factors causing substantial prejudice.

(Emphasis added.)

In his findings, Hasselmo stated that he found no violation by Allen of sections 7.7 (e) and (f) of the tenure regulations. Hasselmo stated that he found Allen's review appropriate. He added that he believed Allen needed the complete file for greater understanding of the case and found that Allen's reference to the possible sexual impropriety involving the young student was within the parameters of Allen's review. Hasselmo found the information regarding the female student to be relevant and not "immaterial" or "non-academic." We conclude that Hasselmo provided clear and reasoned findings justifying his rejection of the Imholte panel's recommendations; thus, we find no violation by Hasselmo as to this claim.

In summary, we conclude that Kobluk's claims fail as to the inclusion of investigative reports in his file and the rejection of the Imholte panel recommendation. But having concluded that Hasselmo violated section 15.5 by communicating improperly with Thawley and Fetrow regarding the inclusion of investigation reports in Kobluk's tenure file without notifying Kobluk, we are obliged to reverse and remand.

3. Relator's Motion to Amend Appendix

The university alleges that certain documents Kobluk included in his appendix were not part of the record below and may not be considered by this court.

It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.

Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (citations omitted). These documents, with the exception of the faculty correspondence, were not part of the record. The correspondence of Brody, Thawley, Fetrow, and Hasselmo is part of the record and copies are included in the file. We decline to expand the record, however, to include documents sought to be introduced at the appellate level and therefore deny relator's motion to amend the appendix to his brief.

Reversed and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.