485 F.2d 334 (10th Cir. 1973), 72-1244, Smith v. Losee

Docket Nº:72-1244.
Citation:485 F.2d 334
Party Name:Melvin T. SMITH, Appellee, v. Ferron C. LOSEE et al., Appellants.
Case Date:August 22, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 334

485 F.2d 334 (10th Cir. 1973)

Melvin T. SMITH, Appellee,


Ferron C. LOSEE et al., Appellants.

No. 72-1244.

United States Court of Appeals, Tenth Circuit.

Aug. 22, 1973

Argued and Submitted May 23, 1973.

Page 335

Harley W. Gustin, Sp. Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., H. Wright Volker and Paul E. Reimann, Asst. Attys. Gen., with him on the brief), for appellants.

Bryce E. Roe, Salt Lake City, Utah, for appellee.

Before LEWIS, Chief Judge, and HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges, sitting en banc.

Page 336

SETH, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Utah, Central Division, awarding damages to the appellee in an action under 42 U.S.C. § 1983. The suit was based on plaintiff's dismissal as an associate professor from a Utah state junior college.

Plaintiff-appellee, Melvin T. Smith, was an associate professor at Dixie Junior College, St. George, Utah. At all times material the college was subject to the management and control of the Utah State Board of Education. Defendant Losee was the President of the college; defendant Barnum was Dean of Academic affairs, and defendant Peterson was Dean of Applied Arts. The other defendants were members of the Board of Education (hereinafter the Board).

Smith was hired in September 1965 as an associate professor of history and held that position until his dismissal on May 31, 1969. He appears to have been very well qualified for his teaching duties at the college. No issue is raised as to the performance of his classroom duties or as to his scholarship.

In February 1968, near the end of Smith's third year at the college, his department head recommended that he be granted tenure, citing his "outstanding" teaching performance, "dedication to professionalism, " and "excellent" dedication to the college and service to the community. Thereafter, the Faculty Personnel Committee, in accordance with the college's "Policy on Faculty Tenure and Promotions, " and in accordance with the college's practice, considered the recommendation and voted, three to two, that Smith receive tenure; the two dissenting members, Barnum and Peterson, believed that Smith should be "placed on one year's probation, " and reevaluated the following year. President Losee wrote to Smith and told him that he was recommending to the Board of Education that Smith be placed on another year's probation before tenure would be granted, citing the committee's report which "indicates one or two instances which seem to lack professionalism." No conditions to this probationary status were set out.

From a reading of the record, it appears that following receipt of the letter Smith met with Losee to discuss the matter. Losee cited Smith's "anti-administration" attitude, the "Dixie Leavitt matter, " the "Phyllis Bell matter, " and that Smith had told students that the administration was misusing student funds, in support of Smith's lack of professionalism. As to the latter assertion, Smith has repeatedly denied telling the students this, and the record shows absolutely no evidence or testimony to the contrary. On May 8, 1968, Smith met with the Personnel Committee in Losee's presence and inquired about the statements that he was alleged to have made. No proof was made as to these alleged statements. Losee reread the committee's original recommendation and, in the presence of Losee and Smith, the committee reaffirmed its original recommendation. The vote was again three to two with Barnum and Peterson in the minority. Losee refused to reconsider his position. He therefore "recommended" to the Board of Education that Smith be placed on probationary status for the following academic year. The Board concurred. Although the Board did have the power to overrule the president's "recommendation, " the Board's chairman stated that its policy was to have sustained the president in any event.

It is important to a full examination of this controversy that a rather detailed examination be made of the grounds upon which the president Losee refused to "recommend" tenure for Smith, notwithstanding the Personnel Committee's favorable recommendation. As noted above, Losee cited four "instances" of Smith's lack of "professionalism." Smith's purported "anti-administration" attitude appears very difficult to objectively assess. However, the "Dixie Leavitt matter" concerned Smith's activity as a sponsor for the college's Young Democrats. The Young

Page 337

Democrats, in a 1966 state senate election contest between Dixie Leavitt and his opponent, circulated a flier, under the name of their organization, in which Leavitt's voting record was challenged. Subsequently, Losee told Smith, in a rather informal conversation, that he had had complaints about this activity from a number of townspeople, that he thought Smith was the author of the flier, and that he was misusing the name of Dixie College.

The "Phyllis Bell matter" involved a typing instructor of that name. Smith, as a member of the executive committee of the Faculty Association, had been approached by another typing instructor concerning Phyllis Bell's competence and performance as a typing instructor. Smith presented this to Barnum, the Academic Dean, which Peterson, then Dean of the Applied Arts division of the college, considered to be an interference in an area in which Smith had no jurisdiction.

As for the alleged statements of Smith relating to the college administration's misuse of funds, nothing in the record, apart from the vaguest form of inferential conjecture, supports this allegation.

As to the 1968 denial of permanent status, the trial court found that:

"Losee, Barnum and Peterson, without justifiable cause, rejected the recommendations [of the Personnel Committee] and recommended to [the Board] that permanent status be denied [Smith]. This recommendation was acquiesced in and accepted by the defendant members of the State Board of Education without their having given [Smith] an opportunity to be heard."

Smith continued in his duties as an associate professor of history at the college, under a one year contract and on "probation, " as he had for the preceding three years, for the 1968-69 academic year.

In February 1969, the Personnel Committee again met to consider, among other things, Smith's permanent status at the college. Barnum had then become acting head of the department of social sciences under which Smith served. His recommendation to the Personnel Committee referred to the 1968 action and noted that he had never observed Smith's teaching but was influenced by "comments of students and the observations of faculty members." Smith's capabilities as a teacher were never in question. The focus of Barnum's "recommendation" was Smith's "antiadministration demonstrations and allegations." He recommended that Smith be denied tenure.

The Personnel Committee voted four to one not only to deny Smith tenure but also to not renew his contract for the next academic year. The only issue during the committee's discussion was whether Smith had "changed his attitude" since the 1968 action. No witnesses were interviewed, Smith was not given any opportunity to address the committee on his own behalf, nor was the committee given any additional information concerning Smith's conduct during the preceding year.

By letter dated February 25, 1969, Losee informed Smith of the committee's recommendation and that he, in turn, accepting the recommendation, would not recommend that Smith be reappointed to the college's faculty.

Pursuant to the college's "Policy on Faculty Tenure and Promotion, " Barnum, on March 12, 1969, wrote to Smith "explaining" the committee's action. This explanation cited Smith's lack of a positive attitude toward the college's administration as evidence of his lack of "professionalism." As further evidence of his lack of professionalism, Barnum's letter reiterated the "Dixie Leavitt matter" which was raised in the 1968 committee meeting and mentioned Smith's "influencing academic instructors against personnel in the vocational-technical division of the College, . . . using instruction time to report certain personal views to students, " and that Smith had "led out in creating a schism

Page 338

in the faculty by unduly influencing several faculty members." No specific instances of these alleged activities were ever presented, either to Smith, to the members of the Personnel Committee, to Losee, to the Board of Education, or to the District Court in its hearing.

In this regard, Losee, in his recommendation to the Board of Education that Smith be denied tenure and that he not be given another teaching contract at the college, detailed certain instances of Smith's activities in support of his position. These included Smith's use of his position as advisor to the Young Democrats "to make a personal attack on Senator Leavitt, " and the use of a college publication in the attack, as well as matters arising from Smith's position on the Faculty Association. Losee concluded his recommendation to the Board of Education with a quotation from the Board's tenure policy to the effect that a teacher of Smith's status could be "terminated at the will of the President of the institution." On March 14, 1969, the Board of Education approved Losee's recommendation that Smith be denied tenure and dismissed from the college's faculty.

Smith applied to "sixty or seventy" other colleges for employment but never received an offer. He finally obtained employment at the Utah Historical Society, of which he is now the director.

There are three main issues raised on appeal:

(1) Was Smith refused tenure and future employment for having exercised his First Amendment rights of free speech?

(2) Was Smith denied procedural due process in that he had a right to and was not given a hearing and a written statement...

To continue reading