{concurring). I concur in the judgment and in that portion of the majority opinion which holds that Coe was not entitled to a contested case hearing before the board of regents. However, I agree with the board that Wis. Adm. Code, sec. UWS 3.06(l)(b), does not restrict the chancellor, under the direction of the board, from applying to the decision whether to recommend tenure "governance" criteria which are not enumerated in sec. UWS 3.06(l)(b).
The administrative regulation establishes "qualification” criteria by which a candidate for tenure is evaluated. Under this rule, decisions regarding tenure require an evaluation of (1) teaching, (2) research, (3) professional service, (4) public service, and (5) contribution to the institution. Wis. Adm. Code, sec. UWS *2753.06(l)(b). Coe contends that these criteria are exclusive. Thus, she contends she is entitled to tenure regardless of the fact that her department is already overtenured.
I agree with the majority that interpreting the administrative rule as granting automatic tenure regardless of institutional need yields an unreasonable result. My disagreement with the majority is that I do not believe that the chancellor’s authority to deny tenure must be found in Wis. Adm. Code, sec. UWS 3.06(l)(b). I believe the chancellor’s authority exists under sec. 36.09(3), Stats., which provides that the chancellors are the executive heads of their respective faculties and institutions and are vested with the responsibility to administer board policies.
Under sec. 36.09(l)(a), Stats., the board of regents has primary responsibility for governance of the university system, including planning for the future needs of the state for university education. Subject to the responsibilities and powers of the board, the president and the chancellor, the faculty of each institution is vested with responsibility for the immediate governance of such institution and shall actively participate in institutional policy development. Sec. 36.09(4).
Pursuant to its authority, the board of regents in 1974 adopted a resolution which read in part:
[That the system administration and the institutions be directed to] continue and accelerate long-range planning which takes into account the demographic data of the 1980’s and 1990’s in such a way as to assure that their personnel commitments and decisions in the intervening years protect against those conditions which lead to fiscal emergency declarations.
*276In 1979 the faculty senate approved a "Tenure Management Policy” to assist the departments and the administration in the assessment of need. Because Coe’s department was overtenured, the dean recommended that Coe be denied tenure. The vice chancellor concurred and the chancellor accepted the recommendation.
Because I believe that the decision not to recommend tenure for Coe was made on the basis of a permissible goverance consideration — tenure density — I agree that the judgment of the trial court should be affirmed. I do not agree with the majority, however, that we should rest our affirmance upon an interpretation of Wis. Adm. Code, sec. UWS 3.06.