Pennsylvania State University v. Com., Dept. of Labor and Industry, Bureau of Labor Standards
| Decision Date | 27 January 1988 |
| Citation | 113 Pa.Cmwlth. 119,536 A.2d 852 |
| Parties | , 44 Ed. Law Rep. 424 The PENNSYLVANIA STATE UNIVERSITY, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF LABOR STANDARDS, Respondent (Three Cases). |
| Court | Pennsylvania Commonwealth Court |
Wendell V. Courtney, McQuaide, Blasko, Schwartz, Fleming & Faulkner, State College, for petitioner.
John D. Killian, III, Betty F. Perry, Ronda R. Kiser, Killian & Gephart, Harrisburg, for William J. Kienzle, Jr.
Peter C. Layman, Chief Counsel, Richard C. Lengler, Asst. Counsel, Harrisburg, for Dr. Steven Stack, Dept. of Sociology, Anthropology and Social Work, Auburn University, Ala., Dept. of Labor and Industry Bureau of Labor Standards.
Mary Jane Forbes, McNees Wallace & Nurick, Harrisburg, amicus curiae, for Pennsylvania Assoc. of Colleges and Universities.
Before CRUMLISH, Jr., President Judge, and CRAIG, MacPHAIL, DOYLE, BARRY, COLINS and PALLADINO, JJ.
Pennsylvania State University (Petitioner) appeals an order of the Department of Labor and Industry, Bureau of Labor Standards (Bureau) requiring Petitioner to allow Nancy J. Treat, William J. Kienzle, Jr., and Steven Stack (Respondents) to examine certain tenure reports.
Respondents were employed as nontenured professors by Petitioner. 1 According to Petitioner's regulations and procedures, members of its faculty were eligible for tenure after seven years of employment. During the first seven years of employment, each faculty member was subject to periodic review. These reviews were conducted by academic administrators, including Department Heads, Deans, the Executive Vice President, and the President of Petitioner. In addition, other tenured faculty members, serving on peer review committees, submitted written reports on the candidates for tenure. Faculty members serving on the peer review committees did so voluntarily and not as a condition of employment and were advised that the committee proceedings would be confidential.
Respondents were denied tenure and thereafter sought permission from Petitioner to examine the reports prepared in connection with their tenure reviews, including those prepared by the peer review committees. 2 Petitioner denied them access to all tenure reports. Respondents then filed a petition with the Bureau requesting the Bureau to invoke its enforcement powers under Section 1324 of the Personnel Files Act 3 (Act) and to order Petitioner to allow Respondents access to the tenure reports.
Hearings were held on April 11, 1984. The Hearing Examiner determined that the peer review committee reports constituted "performance evaluations" subject to inspection under the Act and that Petitioner was required to permit Respondents to examine all of the tenure reports. In its Final Decisions and Orders of June 26, 1986 and July 16, 1986, the Bureau adopted the findings and conclusions of the Hearing Examiner and affirmed his decision.
On appeal, Petitioner does not contest that portion of the Bureau's decision which allows Respondents to examine the reports prepared by academic administrators. However, Petitioner does argue that the Bureau erred in concluding that Respondents may examine the peer review committee reports. Petitioner contends that the peer review committee reports do not constitute "performance evaluations," but are letters of reference not subject to inspection.
Our scope of review of an administrative agency decision is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.
Section 1322 of the Act requires an employer, at reasonable times and upon the request of an employee, to permit that employee to inspect his personnel files used to determine qualifications for employment, promotion, additional compensation, termination, or disciplinary action. 4 Section 1321 of the Act defines "personnel file" as:
If maintained by the employer, any application for employment, wage or salary information, notices of commendations, warnings or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title dates of changes, retirement record, attendance records, and performance evaluations. The term "personnel file" shall not include ... letters of reference.... (Emphasis added). 43 P.S. § 1321.
Thus, in this case of first impression, the sole question presented for our review is whether the peer review committee reports constitute performance evaluations or letters of reference.
The Act does not otherwise define the above terms. The Bureau addressed the distinction between "performance evaluation" and "letter of reference" in its 1982 decision in Hoagland v. Lehigh University (Hearing Examiner Report of February 22, 1982; Final Decision of Bureau of February 24, 1982). 5 In that case, the Bureau determined that the term "performance evaluation," in common usage, indicates a type of report which an individual is required to complete. In contrast, a "letter of reference" is considered a statement which an individual is requested to prepare on behalf of another. The individual preparing a letter of reference is generally not compelled to do so by a superior or set of procedures and "will usually decline to submit such a letter on behalf of an undeserving individual rather than prepare a disparaging letter." Hoagland, Hearing Examiner Report at 5. In addition, the Bureau in Hoagland found that in order for a document to be considered a "performance evaluation" under the Act, the contents of that document must have been used to determine an employee's qualifications for employment, promotion, additional compensation, termination, or disciplinary action.
With these guidelines in mind, the Bureau in Hoagland concluded that peer review committee reports were performance evaluations where faculty members prepared these reports in connection with tenure evaluations of other professors and were required to serve on these committees as a condition of employment.
Petitioner argues that the decision in Hoagland is inapplicable to the instant case because the faculty members in this case voluntarily served on the peer review committees and were not required to do so as a condition of employment. Petitioner contends that because the faculty members serving on the committees have no supervisory responsibility over the tenure candidates and can only make tenure recommendations, the peer review committee reports constitute letters of reference.
In this case, the Hearing Examiner concluded, and the Bureau affirmed, that internal evaluations of an employee's performance in areas related to employment, prepared by Petitioner's employees and generated by Petitioner, were subject to inspection under the Act. 6 The Hearing Examiner did not distinguish between reports prepared by peers and reports prepared by superiors, but focused upon whether the reports themselves concerned an employee's qualifications for employment, promotion, additional compensation, termination, or disciplinary action.
In order to review Petitioner's contentions as well as the Bureau's decision, we must first examine the tenure procedures followed by Petitioner in denying Respondents tenure. 7 According to Petitioner's regulations (PS- 23), a tenure candidate at Petitioner's University Park Campus is initially reviewed at the Department level. The Department Committee of Promotion and Tenure submits a recommendation to the Department Head. If both the Department Committee and Department Head agree to deny tenure and the Dean of the College concurs, tenure is denied. If either the Department Committee or Department Head vote to award tenure, the College Promotion and Tenure Committee conducts a review of the candidate. Following review and recommendation by the College Committee, the Dean of the College makes a tenure...
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