may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
C. Eugene Allen,
Filed December 15, 1998
University of Minnesota
Mark B. Rotenberg, General Counsel, Lorie S. Gildea, Associate General Counsel, University of Minnesota, 325 Morrill Hall, 100 Church Street S.E., Minneapolis, MN 55455 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.
University of Minnesota President Mark Yudof denied tenure to relator Calvin Kobluk. On review, relator contends that President Yudof improperly acted on issues that had not been adjudicated by a University Senate Judicial Committee, improperly premised his decision on non-academic materials, and unlawfully consulted with the University General Counsel. Relator also contends that he was improperly denied university review of an administrative denial of an earlier tenure application, and that he is entitled to continued employment benefits because the university failed to comply with its own rule on notice and termination. Having reviewed the record, we affirm.
Relator was employed by the University of Minnesota as an assistant professor in the College of Veterinary Medicine. He applied for tenure in 1992 and 1993 and was denied each time. The current appeal is the latest stage of a prolonged series of proceedings arising out of the 1993 application.
President Yudof's independent review and decision to deny relator tenure follows our review and remand of an earlier decision made by former University President Nils Hasselmo. Kobluk v. Allen, No. C8-96-2562, 1997 WL 406643 (Minn. App. July 22, 1997) (Kobluk I) (holding that Hasselmo violated procedural tenure regulations by improperly communicating with certain University officials about the inclusion of investigation reports in relator's tenure file without notifying relator, but finding no abuse of discretion by Hasselmo in ultimately deciding to include the investigation reports in relator's file).
1. Standard of Review
On relator's writ of certiorari, we are to inspect the record to determine the regularity of proceedings, and, as to the merits, judge only 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 Minnesota, 520 N.W.2d 437, 441 (Minn. App. 1994) (citing Ganguli v. University of Minnesota, 512 N.W.2d 918, 921 (Minn. App. 1994)), review denied (Minn. Oct. 27, 1994).
2. Denial of the 1993 Tenure Application
The University Regulations Concerning Faculty Tenure (Regulations) constitute a contract between the university and its faculty. Univ. Minn. Tenure Regs. § 2.1. When the University fails to follow its own regulations, the resulting decision may be arbitrary. Ganguli, 512 N.W.2d at 923 (holding that a decision to deny tenure made without Regulation-mandated findings was arbitrary). Relator alleges several violations of this contract that he claims render his denial of tenure arbitrary.
A. Lack of Senate Judicial Committee Fact Finding
Relator alleges that President Yudof exceeded his jurisdiction in making his decision based in part on material that no Senate Judicial Committee (SJC) had declared to be valid, thus violating Regulations sections 15.4 (stating that the SJC makes findings, conclusions, and a recommendation for disposition) and 15.5 (permitting President to request SJC additions or clarifications). The judicial committees that reviewed relator's file prior to President Yudof's decision complied with section 15.4 and President Yudof asked for no further findings. President Yudof acted on findings that the committee had not verified, but neither section 15.4 nor any other regulation or case requires that an SJC address every issue on which the president might rely. Relator was the beneficiary of extensive fact-finding and review, and his claim for more SJC findings is groundless.
B. The President's Use of "Non-Academic" Material
Relator contends that President Yudof, by basing his decision in part on investigative reports into relator's behavior, improperly relied upon unimportant, non-academic materials in making his decision. Regulations section 15.5 states that the president may (as he did here) take action less favorable to the faculty member than that recommended by the SJC only for "important substantive reasons." Academic decisions are afforded great latitude, because decisions about a person's scholarship 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).
In this case, the investigative reports dealt with allegations that relator made sexual advances to a student he was advising and made improper use of University property. Relator characterizes these issues as "non-academic" and thus not material to the granting of tenure. President Yudof characterizes the issues as a reflection of relator's "very poor judgment as a teacher and academic advisor." Given the deference due the president in academic matters and the clear relation between these allegations and a professor's responsibilities, we find relator's contention groundless. This conclusion coincides with Kobluk I, where this court found that President Hasselmo had not abused his discretion by deciding to include the investigation reports in Kobluk's file. Kobluk I, 1997 WL 406603, at *1. Relator's claim regarding improper use of non-academic materials fails.
C. University General Counsel's Involvement
Relator alleges that President Yudof's consultation with Mark Rotenberg, the University General Counsel, violated both the tenure code and relator's right to due process. Relator also alleges that the involvement of other attorneys from the Office of General Counsel rendered Yudof's decision improper. Because the record makes clear that President Yudof spoke with Rotenberg, but shows no evidence that he spoke with other attorneys from the Office of General Counsel, we limit our discussion to Rotenberg's involvement. Relator alleges that President Yudof's consultation with Mark Rotenberg, the University General Counsel, violated both the tenure code and relator's right to due process. Relator also alleges that the involvement of other attorneys from the Office of General Counsel rendered Yudof's decision improper. Because the record makes clear that President Yudof spoke with Rotenberg, but shows no evidence that he spoke with other attorneys from the Office of General Counsel, we limit our discussion to Rotenberg's involvement.
Regulations section 1.1 guarantees due process for faculty members. Section 15.5 permits the president to consult with 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." Relator argues that because President Yudof spoke with Rotenberg, and because Rotenberg had acted as an attorney adverse to relator in the past, relator's right to due process was violated. See Schmidt v. Independent Sch. Dist. No. 1, 349 N.W.2d 563, 568 (Minn. App. 1984) (stating that the influence afforded counsel performing prosecutorial, judicial, and fact-finding roles is so potentially extensive that it taints a teacher's right to be heard in a meaningful, impartial manner). Regulations section 1.1 guarantees due process for faculty members. Section 15.5 permits the president to consult with 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. Relator argues that because President Yudof spoke with Rotenberg, and because Rotenberg had acted as an attorney adverse to relator in the past, relator's right to due process was violated. See Schmidt v. Independent Sch. Dist. No. 1, 349 N.W.2d 563, 568 (Minn. App. 1984) (stating that the influence afforded counsel performing prosecutorial, judicial, and fact-finding roles is so potentially extensive that it taints a teacher's right to be heard in a meaningful, impartial manner).
Rotenberg was involved in earlier disputes between relator and the University and supervises the Office of General Counsel. But he did not personally participate in the presentation of the present matter to the SJC, and nothing in the record indicates he had any responsibility for deciding whether relator received tenure. In contrast, the Kobluk I court found President Hasselmo violated section 15.5 because he communicated with relator's supervisors. Kobluk I, 1997 WL 406643, at *2. These supervisors directly recommended whether relator did or did not get tenure and thus had "previous responsibility for decision at issue." Id.
It is impractical and a misreading of section 15.5 to argue that the president cannot discuss legal and procedural issues with the general counsel. While the regulation is clearly designed to prevent presidential contact and communication with an attorney involved in presenting a matter to the SJC, it is clearly not designed to prohibit presidential contact with attorney/employees not directly involved in the presentation. The record does not suggest that Mark Rotenberg's involvement prejudiced relator's right to be heard in a meaningful, impartial matter.
3. Denial of the 1992 Tenure Application
Relator alleges that President Yudof's decision is improper because it fails to address relator's 1992 tenure application. Relator claims having recently discovered that his initial tenure rejection in 1992 was a "sham," and that it should have been reviewed by an SJC or President Yudof pursuant to Regulations section 15. Section 15.1 permits a faculty member to seek SJC review of adverse decisions. Section 15.2 requires that a written request for review be filed within 30 days of receiving written notice of a challenged decision, subject to extension for reasons the committee finds compelling.
Relator requested review of his 1992 tenure denial in July 1997, more than five years after he received written notice of the denial. Moreover, after the SJC received relator's untimely request, it voted to dismiss, stating that any further review would not be purposeful. Section 15.5 does not obligate the president to ask for further findings on this or other topics. The Regulations provide no grounds for relator's claim for review of the 1992 decision.
4. Notice of Termination
Relator argues that his contractual rights were violated because he has never received timely notice of his "terminal year," as required by Regulations section 6. When a party fails to raise an issue below, he is normally precluded from raising the issue for the first time on appeal. Zahavy, 544 N.W.2d at 38 n.3. This court's review is limited to an inspection of the record of the administrative tribunal. Chronopoulos, 520 N.W.2d at 441.
Relator did not raise the issue of timely notice of his terminal year before President Yudof. He claimed the benefit of an SJC recommendation on salary for the 1995-96 school year, but this claim involved only that period and it was evidently a mere call for equitable relief, not based on the Regulations.
Relator claims that the issues of tenure, salary, and terminal year are "intertwined" to such an extent that review of his terminal year is allowable. But these numerous employment topics are based on different facts and different legal theories, and the fact that some claims were properly before President Yudof does not open the door for review of all the claims. Because relator failed to raise the issue of his terminal year below, we will not consider it on appeal.
Moreover, this facet of relator's claim is untimely under both Minnesota law and the Regulations Concerning Faculty Tenure. He filed for his first writ of certiorari in 1996, long after the 1994 notice of termination. Minnesota Statute § 606.01 (1996) provides that a writ of certiorari must be issued within 60 days after the challenging party receives notice of the disputed action. Relator made no request for an SJC review of the "terminal year" issue within the 30-day period provided under Regulations section 15.2. His claim regarding improper notice of his terminal year fails.
We deny relator's motion to supplement the record with documents that were not submitted for consideration by President Yudof. See Minn. R. Civ. App. P. 110.01 (confining record to matters filed below); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (prohibiting consideration of matters not produced below).
 President Hasselmo communicated with relator's department chair and the dean of his college.