No. 80-249
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
MARJORIE B. KEISER,
Petitioner and Appellant,
STATE BOARD OF REGENTS OF
HIGHER EDUCATION and WILLIAM TIETZ,
Respondents.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin.
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Gregory 0 . Morgan argued, Bozeman, Montana
For Respondents:
Roger N. Flair argued, Bozeman, Montana
-
Submitted: February 20, 1981
Decided: May 1, 1981
Filed: - 1 1981
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Marjorie B. Keiser, petitioner, sued the respondents in
District Court, Eighteenth Judicial District, Gallatin
County, for mandamus and declaratory judgment. She contended
that the "continuous tenure" term of her last contract as
Director of the School of Home Economics at Montana State
University entitled her to receive the salary and the terms
of that last contract, though she was no longer employed as
the Director. After a nonjury trial, her petition for
mandamus and declaratory judgment was denied. She has
timely appealed.
The issue for us to decide is what the term "continuous
tenure" meant in the contracts between these parties.
Under a contract dated January 15, 1968, Marjorie
started her employment with the Montana State University, as
a "Professor and Director" of the School of Home Economics.
Her appointment was for the remainder of the academic year
(January 15, 1968 to June 30, 1968). Her tenure status
described on the contract was "annual" and her salary was
fixed at $18,000 for the academic year.
On April 8, 1968, she signed a contract of employment
for the 1968-1969 academic year (September 1, 1968 to June
30, 1969) as "Director, School of Home Economics". She was
assigned the rank of "Professor" and her tenure status was
described as "annual" with a salary of $18,000.
On April 14, 1969, Marjorie again signed the contract
of employment for the 1969-70 academic year (September 1,
1969 to June 30, 1970) as "Director, School of Home Economics"
at Montana State University. Her rank was that of "Professor"
and her tenure status was "annual", with a salary of $18,600.
During the 1969-70 academic year, while Marjorie was on
academic year appointment, she was recommended for "continuous
tenure" with a rank of a full "Profes~or.~
On April 14, 1970, she signed a contract of employment
for the 1970-71 academic year (September 1, 1970 to June
30, 1971) as "Director" of the School of Home Economics at
Montana State University; again she held the rank of "Professor",
and her tenure status was described as "permanent" with a
salary of $19,700.
On July 13, 1971, she signed a further contract of
employment for the 1971-72 academic year (September 1, 1971
to June 30, 1972) as "Director, School of Home Economics" at
Montana State University. Her contract stated she held the
rank of Professor, that her tenure status was "permanent"
and that her salary was $19,800.
On April 11, 1972, petitioner entered into a contract
for employment for the 1972-73 academic year (September 1,
1972 to June 30, 1973) as "Director" of the School of Home
Economics at the university; her contract gave her the rank
of full "Professor", her tenure status was "permanent" and
her salary was $20,450.
On April 24, 1973, she entered into a contract for
employment for the 1973-74 academic year (September 1, 1973
to June 30, 1974) as "School Director" of the School of Home
Economics at the university; her contract stated that she
possessed the rank of "Professor", that her tenure status
was "permanent" and her salary was $21,465.
On May 20, 1974, Marjorie again contracted for employment
year
during the 1974-75 academic X~eptember1, 1974 to June 30,
1975) as "School Director" of the School of Home Economics
at Montana State University. Again, the contract stated
that she held the rank of "Professor" and her tenure status
was "permanent" with a salary of $23,533.
Each year of her employment as Director of the School
of Home Economics, petitioner had been making status reports
to her supervising dean. The administrative load of the
school, particularly as it related to her, was a continuing
subject of those status reports. Particularly on December
16, 1974, she reported that the increasing demands of admini-
strative responsibility and the heavy teaching loads imposed
on others in her school had been a burden and it had been
impossible to get the help of any of the others to carry out
some administrative responsibility. She pointed out that
the ten-month academic term (AY) did not give her the flexibility
needed nor sufficient time for both research and her administrative
duties. She suggested that she ought to be given a twelve-
month contract (FY) and an assistant director to aid in the
administrative duties. Probably as a result, petitioner was
given a contract of employment for FY 1975-76 (extending from
July 1, 1975 to June 30, 1976). She was again denominated
the "School Director" of the School of Home Economics. Her
contract stated she held the rank of "Professor" and that
her tenure status was "continuous", with a salary of $27,500,
of which $2,000 was noted to be "for directorship."
On June 7, 1976, she again contracted with Montana
State University for employment for FY 1976-77 (July 1, 1976
to June 30, 1977) as "School Director" of the School of Home
Economics. Again her contract gave her the rank of "Professor"
and her tenure status was "continuous"; her salary was
$28,850 of which $2,000 was "for directorship."
On July 11, 1977, petitioner entered into her last
contract of employment as a director, for FY 1977-78 ( ~ u l y
1, 1977 to June 30, 1978) of the School of Home ~conomics,
Her contract stated that she held the rank of "~rofessor",
that her tenure status was "continuous" and that her salary
was $30,000. It was noted that she was "on assignment to
USDA from 9/1/77 through 6/1/78 with full costs to be reimbursed
by USDA." No allocation of salary for directorship appears
in the July 11, 1977 contract.
In 1978, Dr. William J. Tietz, as president of Montana
State University, reorganized the administrative hierarchy
in such manner that the directorship of home economics was
no longer open to petitioner. In consequence, on May 30,
1978, she was offered a contract of employment for AY 1978-
79 (September 1, 1978 to June 30, 1979) as "Professor of
Home Economics"; her offered contract said that she held
the rank of "Professor of Home Economics", that her tenure
status was "continuous" and her salary would be $25,000 for
the academic year. On June 19, 1978, petitioner signed the
contract "under protest", stating that the contract offered
was a violation of her rights as a tenured faculty member
with a salary of $30,000 for FY 1978-79.
Petitioner's subsequent contracts have been for the
ensuing academic year and have likewise been signed under
protest by her under her continuing contention that she was
tenured as a faculty member for a salary of $30,000 since
June 30, 1978.
It is suitable now to set out the contract upon which
petitioner bases her claim of tenure:
"MONTANA UNIVERSITY SYSTEM
Helena, Montana
PROFESSIONAL EMPLOYMENT CONTRACT
Date July 11, 1977
THE BOARD OF REGENTS OF HIGHER EDUCATION OF
THE STATE OF MONTANA, on behalf of the named
institution, hereby enters into a contract of
employment with the employee hereinafter
named, such contract to be by and between the
institution and the individual and subject to
the following stated terms and conditions, and
in the case of tenurable professionals, subject
also to the rules and regulations of the Board
of Regents of Higher Education governing tenure
and termination.
Institution Montana State University
Name Marjorie B. Keiser
Title School Director
Academic Rank Professor
Department School of Home Economics
Tenure: Probationary Appointment
Continuous Tenure X
Non-Tenurable
Term of Contract: Academic Year
From To
Fiscal Year X
From July 1, 1977
To June 30, 1978
Other
Annual Salary $30,00O(FY)*
Payable in 12 installments
Special Conditions * - On assignment to
USDA from 9/1/77-6/1/78 with full cost
to be reimbursed by USDA.
/s/ W G Walter /s/ Lawrence H. Pettit
President Commissioner of Higher
Education
This contract, when used for tenurable professionals,
is made subject to the rules and regulations of the
Board of Regents of Higher Education governing tenure
and termination of employment. A copy of these rules
is attached and made a part hereof. Your acceptance
of this contract constitutes an acknowledgment and
acceptance of all provisions of these rules.
Date Aug. 12, 1977 /s/ Marjorie Keiser
Signature of Employee
To be valid this acceptance of employment
must be returned with the proper signature
to the president of the above institution
within twenty-one (21) days of the date of
notice of professional employment. "
Attached to that contract as an integral part is the
following:
"Board of Regents of Higher Education Rules for
Tenure and Termination
. . .
TERMINATION OF APPOINTMENTS:
9. Terminations - - Cause. . .
Not for
(b) Financial exigency - discontinuance of
or
program or department. In a termination o f
appointment based upon bona fide financial
exigency, or bona fide discontinuance of a
program or department of instruction, the dis-
missal procedures established in Section ll(a)
shall apply.
In every case of termination related to financial
exigency or bona fide discontinuation of a program
or department of instruction, a member of the
professional staff will be given notice of termina-
tion as soon as practible, but in no case less
notice than specified in Section 3 above. In the
event that such notice is not given, the professional
staff member shall be entitled to severance salary
for the period of required notice, dating from the
time written notice was given.
Before terminating an appointment because of
financial exigency or discontinuance of a program
or department of instruction, the institution will
make every effort to place the affected member of
the professional staff in another academic position
for which he is qualified in the institution. If
an appointment is terminated before the end of the
period of appointment because of financial exigency,
or bona fide discontinuance of a program or depart-
ment of instruction, the released professional
staff member's position will not be filled by a
replacement within a period of two years, unless
the released member has been offered reappointment
and a reasonable time within which to either accept
or decline."
The District Court found, among other things, that
department heads, directors, deans and vice presidents at
Montana State University, as well as the president, have an
opportunity to acquire tenure status - academic positions
to
to which they have "retreat rights." Essentially, these
rights give to the possessor thereof the right to be offered
employment on the academic (instructional-research) staff
upon resignation or removal (except for cause) from their
respective administrative positions. The court further
found that neither the Board of Regents nor the University
provided or intended that administrators exercising "retreat
rights" would have the right to demand that they continually
receive their administrative salaries or be employed for the
FY term of their administrative positions. The court also
found that throughout petitioner's employment, she understood
that her primary responsibilities were administrative and
not professorial, that the conversion of her contract from
AY to FY status with its corresponding increase in salary
was directly related to her employment as Director of the
School of Home Economics and not as a Professor, and that
the conversion of her employment contract to an FY status
was based upon her request because of her burdensome admini-
strative duties. The District Court therefore concluded
that her tenure rights did not give her a right to be employed
for the FY term nor for the salary for which she was employed
under her 1977-78 employment contract, as Director of the
School of Home Economics. On that basis, the court dismissed
the petition for mandamus and denied declaratory judgment,
and granted the respondents the right to recover their costs
in defending the action.
In addition to what we have set forth above respecting
the contract for 1977-78, that contract and each other
contract included the following paragraph 5 under "CONDITIONS
OF EMPLOYMENT" :
"5. Continuous Tenure Appointments. The
appointment of a member of the professional
staff beginning his or her eighth year or
its equivalent of full-time service constitutes
an award of continuous tenure status. .. The
appointment of a member of the professional staff
beginning his or her fifth year or its equivalent
of full-time service at the institution in the
rank of associate professor or of professor
constitutes an award of continuous tenure status.
"Once the professional staff member qualifies for
and is granted tenure, his professional faculty
contract of employment, and his tenure, shall be
with the appropriate institution within the Montana
University System and not with the Montana University
System.I'
The contract further provides in paragraph 8, "Termina-
tions", that a termination of faculty member with continuous
tenure may be "effected" by the institution "either for
adequate cause, or not for cause as defined below". Terminations
"not for cause" include retirement by virtue of age or
termination by virtue of financial exigency or discontinuance
of a program or department.
The term~"continuoustenure" is not defined in the
1977-78 contract, nor in any of petitioner's employment
contracts, although the meaning of that term is the kernel
of this case. All of her employment contracts since 1970
have denoted her tenure status as "continuous" or "permanent".
It was incumbent upon the District Court, and now upon us,
to determine what the parties meant in the use of "continuous
tenure" as applied to the petitioner.
When the terms of the agreement have been reduced to
writing by the parties, it is to be considered as containing
all the contractual terms. Section 28-2-905(1), MCA. If
there is an extrinsic ambiguity in the terms, resort may be
had to other evidence. Section 28-2-905(2), MCA. An
ambiguity exists when the contract taken as a whole in its
wording or phraseology is reasonably subject to two different
interpretations. S-W Co. v. Schwenk (1977), 173 Mont. 481,
568 P.2d 145, also printed in 176 Mont. 546. In the construction
of contracts, courts may look not only to the language
employed but to the subject matter and the surrounding
circumstances, and may avail themselves of the same light
which the parties possess when the contract is made. Kintner
v. Harr (1965), 146 Mont. 461, 408 P.2d 487.
The D i s t r i c t C o u r t concluded t h a t t h e 1977-78 employ-
ment c o n t r a c t d i d n o t g i v e p e t i t i o n e r t e n u r e a s t o s a l a r y
o r as t o t h e F t e r m .
Y Those c o n c l u s i o n s w e r e d e r i v e d from
evidence o u t s i d e t h e c o n t r a c t , because nothing i n t h e l a s t
1977-78 employment c o n t r a c t r e f l e c t s a n y t h i n g b u t t h a t
p e t i t i o n e r ' s t e n u r e , w i t h rank of p r o f e s s o r , i s f o r a s a l a r y
o f $30,000 and a F t e r m .
Y Unlike i t s predecessor F c o n t r a c t s ,
Y
no a l l o c a t i o n of s a l a r y a p p e a r s i n t h e 1977-78 c o n t r a c t f o r
her administrative duties. To d e t e r m i n e whether t h e D i s t r i c t
C o u r t w a s e n t i t l e d t o t h o s e c o n c l u s i o n s , w e must o u r s e l v e s
l o o k t o t h e s u b j e c t m a t t e r , t h a t i s t h e meaning o f c o n t i n u o u s
t e n u r e , and t h e s u r r o u n d i n g c i r c u m s t a n c e s , i n t h e " s a n e l i g h t
which t h e p a r t i e s p o s s e s s e d when t h e c o n t r a c t w a s made."
K i n t n e r v. H a r r , s u p r a .
There i s no c o n s t i t u t i o n a l o r s t a t u t o r y r i g h t t o t e n u r e
f o r p r o f e s s i o n a l s i n t h e u n i v e r s i t y system i n Montana. Tenure
r i g h t s , i f t h e y e x i s t , must b e found i n t h e c o n t r a c t s of
employment between t h e u n i v e r s i t y system and t h e p r o f e s s i o n a l .
The e v i d e n c e h e r e i s , a g r e e d t o by b o t h p a r t i e s , t h a t a t
Montana S t a t e U n i v e r s i t y , e a c h p r o f e s s i o n a l c o n t r a c t i s
individually negotiated. Since t h e c o n t r a c t s a r e individually
negotiated, r e s o r t t o o t h e r c o n t r a c t s of o t h e r p r o f e s s i o n a l s
f o r evidence of t h e i r t e r m s g i v e s us l i t t l e guidance a s t o
what Montana S t a t e U n i v e r s i t y and t h e p e t i t i o n e r meant when
t h e y n e g o t i a t e d and e x e c u t e d t h e 1977-78 employment c o n t r a c t .
Tenure, i n i t s o r d i n a r y meaning, i s t h e f a c t , manner,
o r means o f h o l d i n g p o s s e s s i o n o r c o n t r o l o f t h a t which i s
296 I11.App. 310,
o n e ' s own. P e o p l e v . McCahey ( 1 9 3 8 ) , / 1 5 N.E.2d 988, 993.
A common c h a r a c t e r i s t i c of a l l employment t e n u r e a g r e e m e n t s
i s t h a t t h e i n s t i t u t i o n makes a g e n e r a l commitment f o r employ-
ment which i s g e n e r a l l y e x p e c t e d t o c o n t i n u e , w i t h t h e
employee's consent, until his death or retirement. Hennessey
v. National Collegiate Athletic Ass'n. (5th Cir. 1977), 564
F.2d 1136, 1142. Tenure is the status which protects a
professional from dismissal, except for incompetence or
serious misconduct. Collins v. Parsons College (Iowa 1973),
203 N.W.2d 594. Academia and both parties here seem to
agree that:
"Tenure is a means to certain ends; specifically:
(a) Freedom of teaching and research and of
extramural activities, and (b) A sufficient
degree of economic security to make the profession
attractive to men and women of ability. Freedom
and economic security, hence tenure, are indis-
pensable to the success of an institution in
fulfilling its obligations to its students and to
society." American Association of University
Professors and the American Association of Colleges,
Statement of Principles - Academic Freedom and
on
Tenure (1940) .
If then academic freedom and economic security are the
goals of tenure, we determine that the parties had these
goals in mind when the 1977-78 employment contract was
executed. The three essential ingredients of that employment
contract which were subject to tenure are: (1) The professional
rank, (2) the salary, and, (3) the number of months contracted
(the FY term).
Here the respondents carztend that only the professional
rank of professor was tenured, and that even as to that,
petitioner was guaranteed only due process in holding that
rank in subsequent years. Although the 1977-78 employment
contract contains nothing with respect to an allocation of
salary for her administrative duties, the respondents here
unliaterally assigned a reduction of her salary to represent
that component when they offered petitioner the 1978-79 AY
contract. If "continuous tenure" allows that, then tenure
means little or nothing and the goal of economic security,
as important as the goal of academic freedom, no longer exists.
We are aided in our determination in this case that
tenure included both salary and the FY term by the fact
that respondents drew the contracts and had it completely
within their power to describe the tenure rights otherwise.
We see no harm to the university system from such a con-
struction of this contract. Since each professional contract
is individually negotiated, nothing prevents the institutions
now or in the future from negotiating the ingredients of
tenure as to form and extent. In the negotiating process,
the professional rank will draw the least argument. That
would ordinarily be the first step taken. With regard to
salary and AY or FY terms, the institutions can set forth
particularly what is tenured and what is not. In the
petitioner's case, the terms of the 1977-78 employment contract
are better construed in favor of the professional, since it
was within the power of the institution to specify on the
contract any deviation from continuous tenure of her full
salary or the full fiscal year term.
We see no hardship in requiring the institution to
hire the petitioner for the full FY term. She was employed
by the institution during the summer of the 1978-79 year,
for which she was paid $5,431 by the institution.
Having so determined the ingredients of petitioner's
tenured status, we must reverse the District Court decision
here. We remand the cause to the District Court with
directions to grant the writ of mandamus for which she
prayed, and to fix and determine the damages, if any, to which
she is entitled. In that connection, her tenured status
would entitle her to such increments as would ordinarily
accrue following the 1977-78 year to professors of her
rank and status in the institution. She is further entitled
to her costs in prosecuting this action.
------
Justice
We Concur:
Mr. J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g :
I would a f f i r m t h e c o m p l e t e and t h o r o u g h f i n d i n g s o f
f a c t and conclusions of l a w and j u d g m e n t of the District
Court i n t h i s matter. W a r e not considering a question of
e
tenure . Both p a r t i e s a d m i t t h a t t h e t e n u r e q u e s t i o n is
part of Dr. Keiser's contract with the University. The
q u e s t i o n is w h e t h e r a p p e l l a n t is e n t i t l e d t o t h e s a l a r y o f
a n a d m i n i s t r a t i v e p o s i t i o n which s h e no l o n g e r h o l d s .
When t h e l a n g u a g e o f a p p e l l a n t ' s 1977-1978 employment
contract is examined, there is no question that the
U n i v e r s i t y had a r i g h t t o r e f u s e t o r e e m p l o y Dr. K e i s e r i n a
d i r e c t o r ' s job, t o refuse t o give her a d i r e c t o r ' s s a l a r y ,
or to hire her for a director's term. The rules and
regulations of the Montana Board of Regents of Higher
Education have been carefully examined, and I find no
s u b s t a n t i a l e v i d e n c e upon w h i c h t h e m a j o r i t y c a n r e s t its
opinion. M r e v i e w h a s n o t r e v e a l e d a n y a u t h o r i t y on w h i c h
y
Dr. Keiser c o u l d r e l y t o r e t a i n h e r p r e s e n t s a l a r y ; n o r c a n
I f i n d c a s e l a w on a n y known s t a t u t o r y t e n u r e w i t h i n t h i s
S t a t e o r o t h e r w i s e which would s u p p o r t e i t h e r t h e s a l a r y o r
t h e t e r m o f Dr. K e i s e r ' s c o n t r a c t .
A s e a r c h of t h e t r e a t i s e s involved i n t h i s s u b j e c t
matter fails to reveal any authority indicating that a
concept of nonstatutory tenure provides a guarantee of a
p a r t i c u l a r s a l a r y o r a term of c o n t r a c t . On t h e c o n t r a r y ,
the persuasive authorities indicate a general consensus
among t h e s c h o l a r s and a c a d e m i c i a n s t h a t w h i l e t h e r e i s no
p r e c i s e , universally-accepted d e f i n i t i o n of t h e n o n s t a t u t o r y
tenure concept, the rights accorded by the latter are
essentially procedural, i .e., tenure assures against a
refusal t o reappoint the faculty unless and u n t i l certain
"due p r o c e s s " p r o c e d u r e s a r e a d h e r e d t o . See Statement of
P r i n c i p l e s on Academic Freedom a n d T e n u r e , American
Association of University Professors and t h e American
Association of Colleges (1940); L e g a l Handbook f o r
E d u c a t o r s , P. H o l l a n d e r , 1 3 2 Westview P r e s s ( 1 9 7 8 ) .
Dr. Keiser failed to prove that she placed any
r e l i a n c e on any g e n e r a l l y p r o m u l g a t e d o r a c c e p t e d c o n c e p t o f
t e n u r e which s u p p o r t s h e r p o s i t i o n t h a t h e r " t e n u r e r i g h t s "
give her the r i g h t of receiving t h e d i r e c t o r ' s s a l a r y or t o
be employed f o r t h e d i r e c t o r ' s t e r m i n v i e w o f t h e f a c t t h a t
s h e no l o n g e r was employed a s t h e d i r e c t o r o f t h e s c h o o l o f
home e c o n o m i c s . Concerning t h e q u e s t i o n of her s a l a r i e d
rights in an already recognized tenured position as a
professor, there is ample authority that supports the
f i n d i n g s o f f a c t and c o n c l u s i o n s o f l a w and judgment o f t h e
D i s t r i c t Court.
The case of Barnes v. Washington State Community
College D i s t . No. 20 ( 1 9 7 5 ) , 85 Wash.2d 9 0 , 529 P.2d 1102,
f u l l y a d d r e s s e s t h e q u e s t i o n of t h e i n t e r p r e t a t i o n and t h e
application of nonstatutory tenure in the State of
Washing t o n . There the Supreme Court refused to extend
tenured r i g h t s t o departmental chairmen and, i n so doing,
h e l d t h a t s u c h a r e f u s a l was " c o n s i s t e n t w i t h t h e a c c e p t e d
purposes of tenure." The q u e s t i o n o f t h e meaning and t h e
p u r p o s e of t e n u r e b r o u g h t t h i s r e s p o n s e :
". . . The i n t e r p r e t a t i o n we h a v e g i v e n them
[ t h e t e a c h e r t e n u r e s t a t u t e s ] is t h e m o s t
reasonable t o us i n l i g h t of t h e i r language
and a p p a r e n t p u r p o s e . Most i m p o r t a n t l y , t h i s
interpretation is consistent with the
a c c e p t e d p u r p o s e o f t e n u r e , which i s t h e
primary concern of t h e s e s t a t u t e s . The m o s t
a u t h o r i t a t i v e s o u r c e r e g a r d i n g t h e meaning
and the purpose of tenure is the American
Association of University Professors. In
1940, the Association issued a Statement of
Principles on Academic Freedom and Tenure
which made clear that the purpose of tenure
is to protect the faculty member in the
classroom and in scholarly research. As
quoted in C. Byse & L. Joughin, Tenure in
American Higher Education: Plans, Practices,
and the Law (1959) at pages 172 and 173:
"'Institutions of higher education are
conducted for the common good and not to
further the interest of either the individual
teacher or the institution as a whole. The
common good depends upon the free search for
truth and its free exposition.
"'Academic freedom is essential to those
purposes and applies to both teaching and
research. Freedom in research is fundamental
to the advancement of the truth. Academic
freedom in its teaching aspect is fundamental
for the protection of the rights of the
teacher in teaching and of the student to
freedom in learning. It carries with it
duties correlative with rights.'
"These purposes would not be served by
extending tenure to department heads in their
positions as such, and administrative
considerations militate against such an
extension. In a statement adopted in 1966,
the American Association of University
Professors said:
"'The chairman or head of a department, who
serves as the chief representative of his
department within an institution, should be
selected either by departmental election or
by appointment following consultation with
the members of the department and of related
departments; appointments should normally be
in conformity with department members'
judgment. The chairman or department head
should not have tenure in his office; his
tenure as a faculty member is a matter of
separate right. AAUP, Policy Documents and
Reports 38 (1973). ' " Barnes v. Washington
State Community College Dist. No. 20, supra,
529 P.2d at 1104.
This rationale was adopted in a recent Florida Court
of Appeals decision involving a departmental chairman of the
University of Miami. Kirsner v. University of Miami
(Fla.App. 1978), 362 So.2d 449, cert. denied, 367 So.2d
1124. This case i s s u b s t a n t i a l l y on all fours with the
present case. In Kirsner a tenured f a c u l t y member o f the
U n i v e r s i t y of Miami b r o u g h t a d e c l a r a t o r y judgment action
against the University, seeking a declaration that the
l a t t e r was o b l i g a t e d t o p a y him t h e same s a l a r y h e r e c e i v e d
a s a department chairman, notwithstanding t h e f a c t t h a t he
no longer held that position. Ruling in favor of the
University, t h e F l o r i d a C o u r t o f A p p e a l s a f f irmed and c i t e d
w i t h a p p r o v a l t h e F l o r i d a D i s t r i c t C o u r t ' s c o n c l u s i o n of law
which h e l d i n p a r t :
"3. The f a c t t h a t P l a i n t i f f h a s t e n u r e a s a
member o f t h e U n i v e r s i t y ' s f a c u l t y d o e s n o t
a f f e c t t h e U n i v e r s i t y ' s r i g h t t o reduce t h a t
p o r t i o n o f h i s s a l a r y p a i d t o him f o r
performing the d u t i e s of a Department
Chairman s i n c e t h e t e n u r e d o e s n o t a p p l y t o
a d m i n i s t r a t i v e d u t i e s and p o s i t i o n s . "
The r a t i o n a l e o f t h e W a s h i n g t o n and F l o r i d a c o u r t s i n
d e n y i n g f a c u l t y t e n u r e t o an a d m i n i s t r a t i v e p o s i t i o n o r t o
i t s s a l a r y h a s b e e n r e c e n t l y r e c o g n i z e d by t h i s C o u r t i n a
c a s e i n v o l v i n g a "manager o f s e r v i c e s . " S i b e r t v . Community
C o l l e g e o f F l a t h e a d County ( 1 9 7 8 ) , - Mont. -, 587 P.2d
26, 35 S t . R e p . 1780. Admittedly, t h a t case d e a l t with the
interpretation and application of statutory language
( s e c t i o n 20-4-203, e t seq. MCA) which covered teacher
tenure; however, the reasoning articulated therein is
i n s t r u c t i v e and a p p l i c a b l e t o t h e c a s e a t b a r .
F a c u l t y t e n u r e a t Montana S t a t e U n i v e r s i t y i s n o t a n
inherent employment right, nor is it o n e which has been
c r e a t e d o r d e f i n e d by s t a t u t e . I t i s a r i g h t which r e s u l t s ,
i f a t a l l , from a n e x p r e s s g r a n t (via regulation, contract
or otherwise) of the governing body of the Montana
u n i v e r s i t y s y s t e m , which i s t h e Board o f R e g e n t s o f H i g h e r
Education. T h a t Board o f R e g e n t s r e c e i v e s i t s p o w e r s f r o m
t h e Montana C o n s t i t u t i o n . Therefore, w e must l o o k t o t h e
a c t i o n s and the enactments of t h i s g o v e r n i n g body o f the
university system t o f i n d if s u c h a g r a n t h a s b e e n made,
and, assuming i t h a s , t o t h e l a n g u a g e and/or circumstances
of the grant to determine the nature and extent of the
r i g h t s t h a t have been a c c o r d e d .
The Board o f R e g e n t s o f H i g h e r E d u c a t i o n , u n d e r A r t .
X, Sec. 9 , 1972 Mont. C o n s t . , is t h e g o v e r n i n g body o f t h e
u n i v e r s i t y system. A s such, it is v e s t e d w i t h " f u l l power,
responsibility, and a u t h o r i t y t o s u p e r v i s e , c o o r d i n a t e ,
manage and control the Montana university system. . ."
P u r s u a n t t o t h i s power and a u t h o r i t y , t h e Board o f R e g e n t s
h a s provided f o r t h e g r a n t i n g of " t e n u r e " t o academic, i . e . ,
instructional and research faculty at Montana State
University under c e r t a i n circumstances. The p r o c e d u r e by
which "tenure" is granted, and the rights accorded
thereunder, a r e s e t f o r t h i n t h e Board o f R e g e n t s o f H i g h e r
Education Rules for Tenure and T e r m i n a t i o n . These r u l e s
a p p e a r i n t o t o on Dr. K e i s e r ' s 1977-1978 employment c o n t r a c t
a n d , a d d i t i o n a l l y , were p r i n t e d i n t h e f a c u l t y handbook f o r
Montana S t a t e U n i v e r s i t y and c o n s i d e r e d by t h e t r i a l j u d g e
i n h i s f i n d i n g s o f f a c t and c o n c l u s i o n s o f law.
Paragraph 7, "Transfer of Titles," of the contract
tenure r u l e s provides:
" T r a n s f e r of T i t l e s . The o f f i c e s and t i t l e s
of deans, a s s i s t a n t deans, d i r e c t o r s , heads
of departments, and chairmen may be
transferred by the president of- t h e
i n s t i t u t i o n , i n h i s d i s c r e t i o n , from one
member o f t h e p r o f e s s i o n a l s t a f f t o a n o t h e r
a s t h e i n t e r e s t s o f t h e i n s t i t u t i o n may
require." (Emphasis added.)
T h e r e i s no q u e s t i o n t h a t D r . K e i s e r h e l d t h e o f f i c e
of the Director of School of Home Economics a t the
"discretion" of the president of the Montana State
University. She, like other administrators, did not and
could not acquire tenure t o t h e p o s i t i o n , salary, contract
term o r any o t h e r p r i v i l e g e o f t h a t o f f i c e .
By her contract, when Dr. Keiser ceased being
employed a s a d i r e c t o r , w i t h t h e d i r e c t o r ' s s a l a r y and t e r m ,
s h e o n c e a g a i n became a t e n u r e d p r o f e s s o r entitled t o the
s a l a r y accompanying t h a t p o s i t i o n .
F o r t h e a b o v e r e a s o n s I would a f f i r m t h e o p i n i o n o f
t h e D i s t r i c t Court.