(dissenting).
I dissent on Issue 3 because:
THE TRIAL COURT ERRED IN DETERMINING BEVILLE WAS NOT PREJUDICED BY FAILURES TO FOLLOW TENURE PROCEDURES PURSUANT TO BOR/COHE CONTRACT
After acknowledging that “[i]t is undisputed that certain procedural irregularities occurred concerning the tenure review,” the majority opinion (opinion) concludes, without conducting sufficient analysis under the appropriate standard of review, that no prejudice occurred.
1. Publications
Certain of Beville’s publications were missing from his tenure file during part of the tenure review process. The opinion finds no prejudice to Beville because 1) President McFadden reviewed all of the publications, 2) lower levels in the committee chain, which may not have seen the publications, still recommended tenure, and 3) the publications were replaced in Be-ville’s tenure file prior to the meeting of the Institutional Committee. The opinion's review of the facts neglects several important points. First, although the publications were returned to the file before the Institutional Committee met, five members had reviewed Beville’s file before the publi*15cations were replaced,1 and the publications were replaced only five days before the Committee met. The importance of a review of all the publications by all the committee members is apparent from the Institutional Committee’s report which noted that “[d]iscussion centered primarily on the kind of publications submitted in support of his [Beville’s] candidacy.” Beville’s publications were a main focus of the tenure review. Second, it is acknowledged that the determination to award or deny tenure has a subjective component. By applying relatively objective criteria, each level in the tenure process forms a subjective opinion which results in a recommendation. The solidity and force of that recommendation is affected by the existence of objective facts and information to substantiate the decision. Without evidence that all members of the Institutional Committee reviewed all of the publications prior to the Committee meeting, it is impossible to say that the committee members made rational, informed decisions on the issue of Beville’s publications. Although the opinion holds that no prejudice resulted from this situation because President McFadden saw all the publications and decided to recommend no tenure, it ignores McFadden’s letters to Beville (January 27, 1983 and February 9, 1983) which indicate he was heavily influenced by the Institutional Committee vote.
2. Clarifying Letters
The opinion states that the omitted clarifying letters, requested by the College Committee of the Department Chair and the Departmental Committee, “merely explained and reiterated a previous recommendation.” “Merely” seems an inappropriate word when the apparent conflict between the Departmental Committee’s recommendation and the Chair’s recommendation continued to be of concern through the chain of committees. Dr. Butwell (Vice President and Chair of the Institutional Committee) personally discussed the Department Chair’s adverse recommendation with the Chair. President McFadden deemed this to be appropriate “clarification” (Letter of April 11, 1983, from McFadden to Beville, p. 2). However, Vice President Butwell apparently did not need to have the Departmental Committee’s recommendation clarified. The BOR position is apparently that solicited clarifications are legitimate when they deem them so.
The opinion and the trial court find that the addition of the clarifying letters to the tenure file would have been inappropriate because the BOR/COHE contract places the responsibility for preparing file documentation on the faculty member and the contract is silent about any other person adding material to the file. The opinion interprets the word “recommendation” strictly when applied to the “clarifying letters” but ignores the fact that several of the “recommendations” at other levels provided explanations for the committee or individual decision. Additionally, the opinion and the trial court chose to ignore the memo dealing with tenure review policies, issued by Vice President Butwell on September 29, 1982, which stated that each tenure committee level would forward to the next level their recommendation “with all material used in the review.” In other words, the opinion condones the administration/BOR position that they need not be held to their own written interpretation of the contract procedures.
This record results in the inescapable conclusion that if all materials utilized by the College Committee should have been forwarded, then the failure to do so violated the wording of regulations and the intent of the agreement. If, however, the College Committee was correct in not incorporating the clarifying letters in the forwarded tenure file, then a violation of the contract occurred when similar oral clarifications were introduced and forwarded to other levels in the review process. {See section 4.)
3. Late Date for Meeting
The opinion found no prejudice resulted from the fact that the Institutional Committee met on December 13th, rather than December 10th, in clear violation of the *16BOR/COHE agreement which requires that recommendations of the institutional committee “will be submitted to the President by no later than December 10 of each academic year.” (emphasis added) (§ 11.-10, II8) Section 1.19 states: “ ‘Will’ is a verb having the mandatory sense of ‘shall’ or ‘must’. It is a word of certainty — ” There can be no question that a clear violation of the contract terms occurred. Prejudice to the applicant resulted from this violation because:
1) The violation in section 1 created a problem, and this error compounded the problem;
2) Contracts which contain specific time limitations can be assumed to have such limitations for a purpose. A reading of the designated time sections in this contract make it obvious that the purpose here was to avoid time conflicts with the end of the semester. The end of the semester creates time and attendance problems for faculty and students. These time lines were meant to prevent exactly what happened here: a student committee member was unable to attend a meeting because the late date pushed the meeting time into conflict with end of the term concerns, i.e., final exams.
4. Constructive Plan
The opinion asserts that Beville claims that a constructive (or prescriptive) plan was not conducted as required by the contract. The opinion misstates or misunderstands Beville’s claim. The claim is built on a premise. IfDv. Dahlin (Dep’t Chair) did not support Beville’s tenure because of, in his own words, “deficiencies” in Beville’s performance, then he was required to note these deficiencies in Beville’s evaluations and provide a constructive plan, under the terms of the contract. The contract clearly ties the results of performance evaluations to tenure considerations. BOR/COHE Agreement, § 9.10 states in part: “The purpose of the evaluation will be to: ... (4) Provide information for personnel decisions such as tenure and promotion.” Therefore, because the performance evaluations and the procedures regulating them are incorporated into the tenure process, an applicant is not given a meaningful opportunity to respond to alleged deficiencies in performance where no notice of these deficiencies is' provided. The contract calls for performance evaluations to’ be utilized in tenure considerations. The performance evaluation is designed to notify the teacher and the administration of deficiencies, so that these deficiencies can be corrected. If the teacher/tenure applicant is never notified of any deficiencies he has no notice. When positive performance evaluations have no meaning, because they do not accurately portray the evaluated performance, the teacher/tenure applicant has no opportunity to respond.
The determination here must be resolved by reference to the contract between the disputing parties. The Dep’t Chair alleged deficiencies in Beville’s performance in his clarifying letter and his discussions with Dr. Butwell. While President McFadden asserts there was nothing wrong with these “clarifications” by the Dep’t Chair, the contract does not provide for them and they are contradictory to the mandated inclusion and consideration of prior performance evaluations, all of which were “acceptable to excellent” for a period of six years.2
Section 11.10, U 7 states: “The performance record of a faculty unit member considered for tenure will be based upon the performance evaluations conducted by the administration during all years of service credited toward tenure qualification.” The only fair reading which can be given this section is that the tenure applicant’s performance record is based upon the evaluations and it is improper, violative of the contractual procedures and highly prejudicial for ex parte allegations of deficiencies to be inserted into the process.
5. Prejudice
The Board of Regents has the right and power to hire, fire, promote or dismiss its *17employees. There is no right to tenure3 under the State Constitution, statutes or the negotiated contract. However, under our decision in Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 (1975), SDCL 3-18 is a constitutional, permissible restriction on the exercise of the Board of Regent’s right to control salaries and employment decisions and qualifications. Id., 228 N.W.2d at 628. Therefore, the Board is bound by the contract procedures to which it, in good faith, agreed. See Trimboli v. Board of Ed. of County of Wayne, 163 W.Va. 1, 254 S.E.2d 561 (1979).
The grievant bears the burden of showing that violations of procedural requirements prejudiced those substantial rights which the procedures were designed to protect, and no prejudice results if “substantial compliance” with the procedures results in satisfying the purpose for the procedures. Smith v. State, 389 N.W.2d 808, 810 (N.D.1986).
In order to determine if prejudice occurred what must be done — and what the opinion has failed to do — is to identify the purpose for the procedural requirements, i.e., the interests the procedures were designed to protect. “[T]he interpretation of regulations to ascertain their purpose is a question of law[.]” Smith, supra at 810. “[I]n determining the proper interpretation of a contract the'court must seek to ascertain and give effect to the intention of the parties.” Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985).
The purpose of the contract terms concerning tenure procedure reflect the interests of the two parties. The BOR is interested in providing the state educational institutions with faculty who have demonstrated excellence in performance. (BOR Policy Manual, § 5.3.5 (1981), § 5-3-7(a) (1985)). COHE undoubtedly shares this interest, but, additionally, is interested in providing for an agreement which is beneficial to its members. SDCL 3-18-2 and the BOR/COHE agreement limit the scope of the agreement to rates of pay, wages, hours of employment, and other conditions of employment. Tenure falls within “conditions of employment.” The Board cannot, constitutionally, delegate the power to make tenure decisions, therefore, the Board could only contract with COHE for procedural requirements, i.e., how the decisions will be made. COHE’s interest is in eliminating whim and caprice from the decision-making process and restricting the scope of the tenure review to appropriate subject matter.
Sections 9.10 and 11.10 of the contract tie the written performance evaluations to the tenure process. The contract, however, makes no provision for any other method of evaluating the performance record of the tenure applicant. Even the subjective recommendation of each level is to be based on an assessment of past performance evaluations. The stipulation of the parties is that Dr. Dahlin discussed his allegations of deficiencies in Beville’s performance twice with Dr. Butwell. Dr. Dah-lin also, at the request of the College Committee, wrote a letter discussing deficiencies in Beville’s performance. If these deficiencies existed, then they should have been apparent from the performance evaluations. Beville had no meaningful notice of problems with his performance and no opportunity to respond to these perceptions of deficiencies. Dr. Dahlin was aware that Beville was under a tenure track contract; he had a number of years to provide a constructive plan to assist Beville in correcting any deficiencies. Instead, Dr. Dah-lin did not alert Beville as to any problems in his performance and then acted imper-missibly, along with Dr. Butwell, in going outside the mandated procedures to insert undocumented allegations. It is precisely this type of subjective and capricious action which the mandated procedures were designed to eliminate. Beville’s interest in a fair review of his tenure application was seriously prejudiced by these actions. This violation alone should entitle Beville to a reversal of this decision. The cumulative *18effect of all of these violations clearly requires reversal.
. The record indicates that these committee members were informed of the replacement, but there is no indication that the publications were reviewed.
. The majority of Beville’s performance evaluations rated him “excellent” in all areas.
. It should be noted that the issue is tenure and not dismissal (although under § 11.30 and § 8.60, it appears that denial of tenure to a tenure track faculty member results in "non-renewal”).