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: December 1, 1981
Decided: 3 1982
Filed: MAR 3 - 1982
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
M. Iqbal Akhtar initiated this action following
denial of his tenure at Eastern Montana College (EMC). He
sought reinstatement with tenure and backpay, claiming
violations of sections 49-3-101(1)(2) and 49-3-201, MCA;
W i - .of the Civil Rights Act of 1964, 42 U.S.C. 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 ap-
plication 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 appoint-
ment there in September 1975. He is a naturalized citizen
of the United States and a former citizen of Lyallpur,
Pakistan. 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 his
application to the unit rank and tenure committee. 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 favor-
able 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 reevalu-
ation 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. 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
in that 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. 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
time to the Supreme Court is untimely and cannot be
c o n s i d e r e d on a p p e a l . Northern P l a i n s v. Board o f N a t u r a l
Resources ( 1 9 7 9 ) , - Mont . , 594 P . 2 d 2 9 7 , 36 S t . R e p .
666. The q u e s t i o n before us, then, 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
4 9 - 3 - 1 0 1 ( 1 ) ( 2 ) and 49-3-201, MCA;
Title ,&c/- 5 of t h e C i v i l
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. And, t h e D i s t r i c t Court s t a t e s i n i t s F i n d i n g of
Fact No. 9: "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 the same p r o t e c t i o n and d u e p r o c e s s t h a t was
accorded other faculty members . . ." We find this a
sufficient indication of the presence of the due 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
because (1) h e was not given adequate notice and hearing
prior 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
decision to deny tenure was arbitrary and capricious and
founded on a violation of appellant's equal protection
rights.
The first question to be answered is wnether
appellant had a property or liberty interest which is
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 States Constitution and A r t i c l e 11, S e c t i o n
17, of t h e Montana C o n s t i t u t i o n . Board o f Regents v. Roth
( 1 9 7 2 ) , 408 U.S. 5 6 4 , 92 S . C t . 2701, 33 L.Ed.2d 548; S c h e n d
v. Thorson (1976), 170 Mont. 5, 549 P.2d 809; Reiter v.
Yellowstone County ( 1981) , Mont . , 627 P.2d 8 4 5 , 38
St.Rep. 686. Only i f 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 , may
the question of whether due process 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 claims the denial of his tenure request
violates a liberty interest by imposing a stigma on him
which impairs h i s freedom t o o b t a i n o t h e r employment. He
makes no claim of false or defamatory statements being
publicized a b o u t him i n connection with his tenure evalu-
ation but grounds his claim on the sole fact 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 tenure
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 year-to-year
employment. Nevertheless, Roth c l a i m e d denial of h i s due
process rights because h e was g i v e n no 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, r e p u t a t i o n , honor o r i n t e g r i t y . "
408 U.S. a t 5 7 3 , 92 S . C t . 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 . 341,
96 S.Ct. 2074, 48 L.Ed.2d 684, a permanently employed
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 a pretermination hearing.
He claimed a due process violation because of a city
ordinance which limited the grounds for discharge of
permanent employees to inefficiency, negligence, unfitness
or f a i l u r e t o perform d u t i e s . 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, sets out a guide to determining such an
interest. 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
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 establishing a property
i n t e r e s t may be f o u n d i n s t a t e law o r in 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 a t 561.
I n R o t h ' s companion c a s e , P e r r y v . Sindermani ( 1 9 7 2 ) ,
4 0 8 U.S. 593, 92 S . C t . 2694, 33 L.Ed.2d 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 contracts. When, following h i s public
disagreements with college policies, 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 of speech and denied him
p r o c e d u r a l due p r o c e s s . The C o u r t f o u n d t h a t , even w i t h o u 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 , a protected property
interest may exist through a de 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 where no explicit tenure
s y s t e m e x i s t s . 408 U . S . a t 6 0 2 , 92 S . C t . 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 requirements for
tenure at EMC and thereby has sufficient 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 relies primarily on McLendon v. Morton
(W.Va. 1978), 249 S.E.2d 919, i n which an assistant pro-
fessor at a community college sought a writ of mandamus
claiming she was denied due process in the college's deci-
sion 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 satisfac-
tion of the basic eligibility standards to apply for tenure
gave a sufficient entitlement to require due process protec-
tion. 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 of Eastern Montana College required
faculty members applying for 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 en-
titled 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 relies on three cases to support this
claim: Hillis v. Meister (.l971), 82 N.M. 474, 483 P.2d
1314; Abramson v. Board of Regents University of Hawaii
( 1 9 7 6 ) , 56 Haw. 680, 548 P.2d 253; and O f s e v i t v . Trustees
of the California State University and College, et al.
( 1 9 7 8 ) , 148 Cal.Rptr. 1, 2 1 C a l . 3 d 763, 582 P.2d 8 8 .
These authorities are not persuasive in this
instance. Hillis, supra, interpreted the teaching contract
between an assistant professor and E a s t e r n N e w Mexico
University. The court found that through the course of
conduct of the parties, the provisions of the faculty
handbook had become p a r t o f t h e i r c o n t r a c t . The c o u r t d i d
not consider whether the contract 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. The c o u r t f o u n d , h o w e v e r , t h e
t e n u r e p r o v i s i o n s of 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 compliance with
the rule-making procedures of the 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 , i n Ofsevit, supra,
found that a faculty member had been 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 activities in violation of his First
Ainendment rights. Although 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 which have been adopted by an institution of
higher education are impliedly or expressly part of a
f a c u l t y member's employment c o n t r a c t a n d , a s such, 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, a p p e l l a n t ' s argument r a i s e s
three questions: 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
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 ? lrjere t h e 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 contract. G a t e s v. L i f e of
Montana I n s u r a n c e Co. (1982), - Mont . -, 638 P.2d 1 0 6 3 ,
39 S t . R e p . 16. Gates claimed her employment c o n t r a c t had
been breached because provisions of the employee handbook
had not been followed. This Court 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 . The
handbook terms were not bargained for and there was no
meeting of t h e minds. The C o u r t a l s o f o u n d t h e handbook was
n o t p a r t of G a t e s ' 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 . Gates,
638 P.2d a t 1 0 6 6 , 39 S t . R e p . a t 19.
The codification on which appellant relies was
drafted by the Rank and Tenure Committee specifically to
clarify both the faculty contract and handbook. The
document was approved by 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 to reference and
informational use and subject to future contract
negotiations. 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 grant-
ing tenure which is set out below:
"The procedure for granting tenure shall be
as follows:
"(1) A committee of the appropriate adminis-
trative 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 administra-
tive 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 proce-
dures 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 the academic vice-
president out of proper sequence. 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. Instead, the academic vice-president
received the dean's unfavorable 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 codifi-
cation. Assuming arguendo that the codification was part of
the contract, we still find no breach. The codification
provision regarding the deans states: "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 reviewed
promotion and tenure cases that year. The president
acknowledged 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 vice-
president and President Van de Wetering was the only
administrative step in the process. 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. President Van de Wetering testified that
ordinarily the tenure applications he received had
consistent recommendations. 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 they breach appellant's
contract.
This Court recently held, in Keiser v. Board of
Regents (1981), - Mont . , 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. The C o u r t ' s concern t h e r e was
construction of t h e employment c o n t r a c t which g r a n t e d Dr.
Keiser "continuous tenure." The C o u r t ' s d e c i s i o n was b a s e d ,
in part, on a t w o - f o l 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 . Here
the question is an entirely different one--whether a
protected r i g h t has vested.
Dr. Akhtar applied for tenure at Eastern Montana
College according t o the formal t e n u r e procedures. Those
procedures provided f o r e v a l u a t i o n of the tenure applicant
a t t h e t i m e of a p p l i c a t i o n on t h e b a s i s o f excellence i n
teaching, research and p u b l i c s e r v i c e , and community ser-
vice. 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
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. W f i n d no p r o p e r t y
e
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 specifies as error the District Court's
failure to adopt appellant's proposed conclusion of law
number seven which states respondents' conduct 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 faculty for each institution.
Section 20-25-301(1)(11), MCA. The p r e s i d e n t of an i n d i -
vidual institution, in turn, 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 . S e c t i o n 20-25-305 ( 1),
MCA .
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 i n an u n c o n s t i t u t i o n a l d e n i a l of equal protection.
U.S. Const., Amend. XIV, 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 other tenure candidates
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 e x c e l l e n c e was a p p l i e d to
his tenure evaluation than t o others. In s u p p o r t of 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 record. Since h i s
employment a t E a s t e r n Montana C o l l e g e , appellant had pub-
lished one article. 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. Whiting (4th Cir. 1 9 7 9 ) , 607 F.2d 634, 638. In
Clark, an a s s o c i a t e p r o f e s s o r c l a i m e d he was d e n i e d 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 McRae testified that he evaluated all eight
tenure candidates using the basic criteria of teaching,
research and service and attempted to measure their
performance in each category in at least a partially
q u a n t i f i a b l e manner. B e c a u s e of t h e i n e v i t a b i l i t y of some
subjectivity in the process, t h e dean t e s t i f i e d h e made a
composite for each candidate and then reevaluated the
m a t e r i a l s s u b m i t t e d t o him. 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 demanded a weighing and balancing of all the
areas of consideration for all the candidates. 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 an a r b i t r a r y or discriminatory treatment of
appellant's tenure application, we can find no d e n i a l of
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 . W disagree.
e
The e v i d e n c e 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 f o r
lack of relevance. Appellant argues the evidence was
r e l e v a n t i n t h a t i t would h a v e shown " a p a t t e r n of proce-
dural error, the prejudice and the factual error that
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 which has "any tendency 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 " is r e l e v a n t . Rule 4 0 1 ,
Mont .R. Evid .
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 individual under a different contract in a
d i f f e r e n t academic year is n o t r e l e v a n t t o his actions i n
appellant's tenure evaluation.
Appellant also claims the District Court erred in
refusing to allow the testimony of Maury Evans regarding
union activities of Dr. Akhtar and other faculty. 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 through t h e testi-
mony of Maury Evans that one member of 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, MCA, which r e q u i r e s e v a l u a t i o n and
promotion of 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 ap-
p 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 specify as cross-error the District
Court's refusal to admit Dr. Jay 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 testimony. In that context,
respondents' counsel questioned Kirkpatrick regarding the
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 : "Do you r e c a l l
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 ? " Appellant's counsel
objected claiming Kirkpatrick's 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 . Following an o v e r r u l i n g o f
the objection, respondents' 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 f r i e n d of Akhtar and a l o c a l
veterinarian. At that point the court asked K i r k p a t r i c k
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 . 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. Therefore, this Court will not determine error.
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. The
question then becomes whether Kirkpatrick's offered
testimony was properly within the scope of 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 will not review the ruling. Tague v. John
Caplice Co. (1903), 28 Mont. 51, 72 P. 297; Trogdon v.
Kanson Sheep Co. (1914), 49 Mont. 4, 139 P.% 792; Runkle v.
Burlington Northern (1980), - Mont . , 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 'Red-
book' upon which much of t h e C o l l e c t i v e Bargain-
i 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 Appoint-
m 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
judgments i s t o p r e v a i l . ' ( p . 1 2 ) I t would
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 -
- " (Emphasis added.)
ces.
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. 1 6 , and Nye v. Department
of L i v e s t o c k ( 1 9 8 2 ) , 39 St.Rep. 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 hand-
book 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 presum-
ably 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 .
- -e employer h a s f a i l e d t o f o l l o w - --
I£ th i t s own
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
- shattered - - injustice --
is and a n i s done.
"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 respon-
dent 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
and f a i r d e a l i n g . " G a t e s , 39 St.Rep. a t 20.
(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 . " The employee
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 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 , docu-
m 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. G a t e s and - t a k e n t o g e t h e r , have expanded t h e
Nye,
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