NO. 81-57.
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1981
JAMES J A Y LELAND,
P l a i n t i f f and A p p e l l a n t ,
-vs-
STANLEY J . H Y O D e t a l . ,
E W O ,
Defendants and Respondents.
Appeal from: District Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e , The H o n o r a b l e
C h a r l e s Luedke, J u d g e p r e s i d i n g .
C o u n s e l o f Record :
For Appellant:
S t e p h e n s & C o l e , B i l l i n g s , Montana
For Respondents:
LeRoy H. Schramm, Montana U n i v e r s i t y System,
H e l e n a , Montana
S u b m i t t e d on B r i e f s : September 25, 1981
Decided: A p r i l 1 5 , 1982
Filed: APR 15 1982
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Leland, a non-tenured college professor at Eastern
Montana College (EMC), appeals the Yellowstone County District
Court's judgment that his due process rights were not
violated by EMC's refusal to provide him with a formal
hearing before terminating his employment.
Leland contends that the judgment should be reversed
because the trial court failed to consider that EMC's president
verbally supplemented the printed terms of Leland's employ-
ment contract, and because the trial court found that he
had failed to accept the contract that was offered him. We
affirm the trial court's judgment on all the issues.
Leland was hired at EMC in 1966 as a Philosophy and
Humanities professor, From 1968 until 1970, he took a leave
of absence without pay in order to work on his doctorate
degree. He returned to EMC, and although he had not yet
attained his doctorate degree, he was promoted to Assistant
Professor in 1970.
On February 13, 1973, Leland applied to EMC's Rank and
Tenure Committee for promotion to Associate Professor, which
would entitle him to tenure. He was informed, however, that
although he was eligible for this promotion, the committee
would not recommend it because it had been made aware that he was
to be recommended for a "terminal contract" at the ~ p r i l
1973 meeting of the Board of Regents. A "terminal contract"
is one in which the professor is hired to teach for another
school year, and is then terminated. In effect, it provides
the professor with more than 12 months notice of his non-
retention.
On February 14, 1973, defendant Moulton, Leland's
supervisor and Chairman of the Division of Humanities,
notified Leland that he (Moulton) had recommended to
defendant Rodney, Dean of the College of Liberal Arts, that
Leland not be reappointed as an Assistant Professor, but
that he be offered the "terminal contract" for the 1973-74
school year. The next day, Dean Rodney informed Leland that
he supported Chairman Moulton's recommendation because
Leland allegedly had been making unacceptable advances
toward female students, had been conducting classes while
under the influence of alcohol, and had taken one of his
classes to the Student Union. Leland did not attempt to
explain or refute these accusations, but requested a formal
hearing, which Dean Rodney refused. Defendant Heywood,
President of EMC, then informed Leland that he also would
recommend the "terminal contract."
Leland then wrote Professor Fargo, President of EMC's
Faculty Senate, requesting a hearing and a written statement
of the allegations of misconduct behind his termination. On
March 1, 1973, he also sent notice of these requests to
President Heywood, but on March 5, 1973, received President
Heywood's reply that he would nonetheless recommend the
"terminal contract."
Professor Fargo presented these requests to the Faculty
Senate on March 6, 1973. The next day, Leland wrote a
letter to State Representative Lloyd Lockrem criticizing the
funding of a proposed science building at EMC and the number
of EMC's administrative personnel, stating that EMC's priority
should be to retain its present faculty and to encourage
research. On March 20, 1973, President Heywood wrote Leland
and criticized him for writing to Lockrem without first
proceeding through the appropriate channels at EMC.
President Heywood also sent the Board of Regents a copy of
h el and's letter along with the recommendation that Leland
receive only a "terminal contract."
On April 11, 1973, Leland was notified that the Board
of Regents had approved the offer of a "terminal contract"
to Leland. Leland then requested, but was denied, a formal
hearing by the Board of Regents. Leland received the
"terminal contract" in the mail under the usual hiring
procedure in which he was to sign it and return it within 21
days if he accepted the employment. On April 27, 1973,
Leland's attorney requested that the Board of Regents extend
the time in which Leland could accept the contract, pending
the outcome of his dispute over being denied a hearing.
Leland alleges that he requested this time extension because
the Board of Regents has granted such an extension under
similar circumstances in the past. The Board of Regents,
however, demanded that Leland immediately sign and return
the contract, or it would consider the contract as voided
and terminate his employment on June 30, 1973. Later,
Leland was told that the Board of Regents, at its May 21,
1973 meeting, had terminated his employment effective June
30, 1973, because the "terminal contract" had not been
signed and returned. Leland continued on as Assistant
Professor for the rest of the 1972-73 school term while
seeking assistance from the EMC Chapter of the American
Association of University Professors (AAUP).
Leland argues that from the date of his termination on
June 30, 1973, through June 20, 1980, he made $19,881.41,
and claims that had he not been wrongfully terminated, he
would have earned a total of $92,495 as an Assistant Professor
during those years, and as much as $96,728 if he had been
promoted to an Associate Professor by 1973. He therefore
claims a loss in earnings between $72,613.59 and $76,846.59.
He also argues that the terms of his employment contracts
from 1972 through 1974 include certain AAUP standards
allegedly adopted by EMC, but not printed on those employ-
ment contracts.
He commenced this action seeking (1) his reinstatement
at EMC with the rank of Associate Professor; (2) his lost
salary; and (3) $10,000 exemplary damages. After a nonjury
trial on March 26 and 27, 1980, the District Court concluded
that Leland did not have tenure and therefore was not entitled
to a hearing or a statement of reasons concerning his non-
reappointment beyond the 1973-74 school year. We agree.
Leland contends that the District Court should have
found that he accepted EMC's offer of employment for the
1973-74 school term while merely questioning the legality of
its termination provision and that under the policies in
effect at EMC at the time, EMC was obligated to renew his
appointment as Assistant Professor. He also contends that
the District Court should not have concluded that he would
have been offered the terminal contract even if he had not
sent the letter to Representative Lockrem.
We reject Leland's contention that there was insufficient
evidence for the District Court to conclude that he failed
to accept the terminal contract which had been offered
him.
On April 9, 1973, Leland was offered the "terminal
contract" for the 1973-74 school year which indicated that
he had 21 days to accept the offer. Paragraph 5 of the
contract makes it clear that nontenured faculty have no
expectation of the right to renew their contract. Leland
never signed or returned the contract for 1973-74, but
explained that his refusal to sign it was based on his
objection to its terminal nature. In other words, he
refused EMC's offer and made a counteroffer: "Give me a
contract without the terminal provision." EMC was, of
course, under no obligation to offer a nontenured employee
an unconditional contract. However, EMC did not silently
allow the offer to lapse after the 21 day period. Rather on
May 7, 1973, the offer for a terminal 1973-74 contract was
repeated in the letter to Leland's attorney. When the
contract remained unsigned, EMC let his 1972-73 contract
expire at its normal date.
Leland cannot fairly contend that, on the basis of the
Board of Regents' May 7, 1973 letter, he believed that the
Board of Regents had waived the 21-day time limit for
accepting the contract. That letter unequivocally stated:
". .. Our record indicates Mr. Leland has had
his proposed contract since April 12, 1973.
Under the contract agreement this would have
qiven him until Monday, April 25, 1973 to return
- must request -- contract be signed
it. We - that the
and submitted - -
to the President of ~ a s t e z
Montana
College immediately upon receiptof -
- this letter,
or - -
- we will consider -- Leland has voided
that Mr.
--
his contract - - employment with the Montana
and his
University System will cease as of the expiration
-----
of - present contract, which - - -30, -
- his is June 1973."
(Emphasis added. )
Nor can the April 27, 1973 letter from Leland's attorney be
said to clearly show that he accepted the offered employ-
ment, while merely questioning the legality of the contract
terminal nature. That letter stated:
- 6-
". . . We have determined that there are basic
requirements that must be met after a certain
period of time relating to tenure of university
professors. As a consequence, we wish to respect-
fully advise you that the terminal contract which
you have provided Professor Leland is improper and
that Professor Leland is entitled to the benefits
of tenure, We wish to make a formal demand upon
you to submit a proper contract based upon Professor
Leland's continuous service for the university
system.
"It is our further intention by this letter to
notify you of our intention to extend the time
in which the contract by its terms is to be returned,
pending a final disposition of this matter.
We also reject Leland's argument that the District Court
should have found that there were existing rules and under-
standings in effect at EMC in 1972 which supplemented the
tenure regulations on the reverse side of EMC's Faculty
Employment Contracts. The only evidence Leland offered in
support of these alleged supplemental rules and understandings
was that President Heywood made certain statements regarding
his concepts of tenure policies in his Address to the
Faculty at the beginning of the 1972-73 school year, which
was four months after Leland had signed and returned his
1972-73 employment contract. These comments, however,
cannot be said to clearly establish a tenure policy that any
of the faculty could rely upon. Heywood stated:
". . . There has been no serious dislocation of
people as the administration took a serious but
humane approach to our fiscal problems. I under-
take to continue this policy and to protect to
the limit of my ability those who have been on the
faculty long enough to have acquired tenure according
to the AAUP."
This comment only displays President Heywood's intent to
request that the Board of Regents change the existing tenure
system to the system advocated by the AAUP (where tenure is
automatic after seven years of teaching at that institution).
Further, college administrators in this state have no
authority to contract with faculty members on terms different
than those approved by the Board of Regents. Brown v. State
Board of Education (1963), 142 Mont. 547, 385 P.2d 643.
Leland has not established with any credible proof that the
written tenure provisions of his contract were supplemented
by any oral representations of EMC's administration, and
therefore, we need not discuss Leland's claim that these
representations gave him a property interest in his re-
employment and a liberty interest in his good name, reputation,
and honor.
Leland has attempted to show that he was "dismissed for
cause" because he accepted the contract offered to him for
1973-74 and because he was entitled to tenure based upon
President Heywood's oral representations. This claim must
also fail because we have already ruled that Leland did not
accept the offered contract and that he was not entitled to
rely on President Heywood's comments.
In Board of Regents v. Roth (1972), 408 U.S. 564, 567,
92 S.Ct. 2701, 2704, 33 L.Ed.2d 548, 555, the Supreme Court
recognized and described the distinctions between a dis-
missal for cause and nonretention:
"The procedural protection afforded a Wisconsin
State University teacher before he is separated
from the University corresponds to his job security.
As a matter of statutory law, a tenured teacher cannot
be 'discharged except for cause upon written charges'
and pursuant to certain procedures. A nontenured
teacher, similarly, is protected to some extent
during his one-year term. Rules promulgated by the
Board of Regents provide that a nontenured teacher
'dismissed' before the end of the year may have some
opportunity for review of the 'dismissal.' But the
Rules provide no real protection for a nontenured
teacher who simply is not re-employed for the next
year. He must be informed by February 1 'concerning
retention or non-retention for the ensuing year.'
But 'no reason for non-retention need be given. No
review or appeal is provided in such case.'" (Emphasis
in original; footnotes omitted.)
Montana's educational laws and contracts mirror those of
Wisconsin. The evidence shows that the plaintiff was not
removed for cause. Simply, he was a non-tenured teacher who
was not retained.
Finally, we also reject Leland's contention that his
employment was terminated because he exercised his con-
stitutional right to free speech by writing a letter to
Representative Lockrem. Leland's letter to Representative
Lockrem was sent 3 1/2 months after Chairman Moulton first
recommended to Dean Rodney that Leland not be reappointed,
and two days after President Heywood wrote Leland that he
did not intend to retain him. Both Chairman Moulton and
President Heywood testified that Leland's letter to Repre-
sentative Lockrem played no role in their decisions, and
Leland himself testified that he did not believe that this
letter had anything to do with his nonretention.
The judgment of the District Court is affirmed.
We Concur: