Beville v. University of South Dakota/South Dakota Bd. of Regents, 15635

• Court: Supreme Court of South Dakota
• Writing for the Court: DOBBERPUHL; WUEST; SABERS; DOBBERPUHL, Circuit Judge, sitting for MILLER; SABERS
• Citation: 45 Ed.LawRep. 260,420 N.W.2d 9
• Parties: 45 Ed. Law Rep. 260 In the Matter of the Grievance of Dr. Mitchel J. BEVILLE, Grievant and Appellant, v. UNIVERSITY OF SOUTH DAKOTA/SOUTH DAKOTA BOARD OF REGENTS, Respondent and Appellee.
• Docket Number: No. 15635,15635
• Decision Date: 10 February 1988

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420 N.W.2d 9 45 Ed. Law Rep. 260 In the Matter of the Grievance of Dr. Mitchel J. BEVILLE,
Grievant and Appellant,
v.
UNIVERSITY OF SOUTH DAKOTA/SOUTH DAKOTA BOARD OF REGENTS,
Respondent and Appellee. No. 15635. Supreme Court of South Dakota. Argued Oct. 7, 1987.
Decided Feb. 10, 1988.

Celia Miner of Brady, Kabeiseman, Reade & Johnson, Yankton, Wickens, Herzer & Panza, David J. Figuli, Greeley, Colo., for grievant and appellant.

Robert B. Frieberg of Frieberg, Peterson & Travis, Beresford, for respondent and appellee.

DOBBERPUHL, Circuit Judge.

PRELIMINARY STATEMENT

Grievant Dr. Mitchel J. Beville (Beville) appeals the denial of his tenure review grievance by the circuit court, previously denied by the Department of Labor. On appeal, Beville does not ask this court whether tenure should have been awarded, but whether the required procedures were fairly and equitably applied to him during the tenure application process. Beville also contends that SDCL 1-26 is applicable to the grievance procedure of his employment contract, and that additional evidence should have been admitted by the trial court. We affirm.

FACTS AND PROCEDURE

Beville was employed at the University of South Dakota in the fall of 1977 as an Associate Professor of Political Science and a Director of the Government Research Bureau. Beville was a member of the Counsel of Higher Education (COHE) bargaining unit and was employed pursuant to the master contract between the Board of Regents (BOR) and the COHE. This contract provides procedures and criteria to be followed in the tenure review process. Beville was eligible for tenure in the 1982-83 academic year, and he initiated such tenure proceedings at that time.

Beville prepared his tenure file which included a personal vitae, student evaluations, supervising faculty evaluations, evidence of academic and non-academic activities, and other appropriate information. As per the BOR/COHE contract, the following committees were to review his tenure application, tenure file, and make a recommendation regarding the award of tenure: the Departmental Committee; the Departmental Chair; the College Committee

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; the Dean of the College; the Institutional Committee, and the Vice President for Academic Affairs. After each committee or individual completes the process, the President of the University evaluates all the information and makes his recommendation to the Board of Regents.

The recommendations taken by the respective committees and individuals regarding Beville's tenure application consisted of the following:

(a) Departmental Committee unanimously recommended tenure;

(b) Departmental Chair recommended against tenure;

(c) Committee of the College of Arts and Science unanimously recommended tenure;

(d) Dean of the College of Arts and Sciences recommended tenure;

(e) Institutional Committee was divided. Four members were in favor, four members opposed, one member abstained, and one member was absent;

(f) Vice President for Academic Affairs recommended against tenure;

(g) The University President, Dr. Joseph McFadden, (President McFadden) recommended against tenure to the Board of Regents;

(h) The Board of Regents denied tenure.

It is undisputed that certain procedural irregularities occurred concerning the tenure review. First, some of Beville's publications were temporarily separated from his file while committees and individuals were conducting the review. Second, certain letters requested and used by the Committee of the College of Arts and Sciences in their deliberations were not included in the tenure file. Third, the date of the Institutional Committee meeting was three days later than that established by university procedures.

After tenure was denied by the Regents, Beville filed a grievance under the applicable provisions of the BOR/COHE agreement (Article 6.70-6.73). Beville included the aforementioned procedural irregularities and claimed they prejudiced his tenure determination. Step Three of the grievance procedure in the agreement provided for a neutral fact finder to hear a grievance by a disappointed tenure applicant. This hearing allows the parties to obtain witnesses and present evidence. More specifically, Step Three states that the hearing will not be conducted under strict rules of legal evidence and is not a contested case. A Step Three hearing was held which resulted in a finding of recommendation for Beville.

Pursuant to the agreement, the Board reevaluated the application, and in making its final decision, rejected the fact finder's recommendations and issued its own statement of reasons for the rejection.

Beville next filed a notice of appeal with the Department of Labor pursuant to SDCL 3-18-15.2. A hearing was held, and the Department held that the Regents did not violate, misinterpret, or inequitably apply certain provisions of the negotiated agreement between the COHE and the Regents concerning Beville's tenure. On appeal to the circuit court, the Department's decision was affirmed. The circuit court also held that SDCL 1-26 was not applicable to Step 3 of the grievance procedure provided for in the contract. A motion for additional evidence was also denied by the trial court. Beville appeals from that decision.

STANDARD OF REVIEW

The standard of review for administrative appeals (SDCL 1-26) has recently been clarified in Permann v. S.D. Dept. of Labor, 411 N.W.2d 113 (S.D.1987). Initially, we must determine whether the holding involves a finding of fact or conclusion of law. Schramm v. State Board of Dentistry, 414 N.W.2d 31 (S.D.1987). This distinction must be made to determine "the proper standard of review; that is, clearly erroneous as opposed to mistake of law." Schramm, supra; Permann, supra. Questions of law such as statutory interpretation of SDCL 1-26 are reviewed by this court de novo. Schramm, supra. No deference is given to the conclusions of law by the trial court or the agency. However, as to questions of fact, SDCL 1-26-36 provides

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that great deference shall be given to agency findings. Thus, the decision of the administrative agency must be upheld unless, in light of the entire record, this decision is clearly erroneous or unless the court is left with a definite and firm conviction that a mistake has been made. Schramm, supra; Barkdull v. Homestake Mining Co., 411 N.W.2d 408 (S.D.1987); Permann, supra. State Division of Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42 (S.D.1984); Dakota Harvestore v. S.D. Department of Revenue, 331 N.W.2d 828 (S.D.1983). Because the issues of appeal involve both questions of fact and law, they will be reviewed separately under the appropriate standard of review.

I. TRIAL COURT PROPERLY HELD THAT SDCL 1-26 IS NOT APPLICABLE TO THE BOR/COHE STEP THREE GRIEVANCE PROCEDURE

There is no dispute that the BOR did not comply with procedures set out in SDCL 1-26-24 ¹ or 1-26-25 ² concerning Step Three of the grievance procedure. We hold that these statutory provisions are not applicable to the Step Three grievance procedure because the contract specifically and lawfully excludes those statutory provisions. SDCL 3-18-15.1 allows the Board to establish their own grievance procedures. Grievance, as defined by SDCL 3-18-1.1, includes a complaint by a public employee based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements or contract of any board as they apply to the conditions of employment. Beville alleges procedural irregularities violated the BOR/COHE agreement concerning his employment, a type of grievance provided for in SDCL 3-18-1.1; thus grievance procedures contracted for between the BOR and COHE should apply. After the grievance procedure is exhausted, 3-18-15.2 allows appeals to be made to the Department of Labor. It is at this stage that 1-26 provisions apply, and not any sooner.

There is no due process or public policy violation by allowing the parties to contract the resolution of disputes by establishing a grievance procedure. Beville had a procedure to follow, and it was conducted fairly. He is not left without a remedy. SDCL 1-26 provisions are available if and when he appeals to the Department of Labor, so those contested case provisions were not wrongfully withheld from him.

Beville cites South Dakota Board of Regents v. Meierhenry, 351 N.W.2d 450 (S.D.1984) for the proposition that 1-26 applies at an earlier stage. Beville's interpretation is misplaced. Meierhenry allows the Department of Labor to hear professional employee grievances. Meierhenry does not prohibit or restrict the board and its faculty union from contracting for additional protection and procedures. Neither does Meierhenry require that 1-26 govern contract grievance procedures. As long as fair and adequate grievance procedures are established by collective bargaining, and the grievant is not without a remedy, this court will not replace negotiated terms, particularly when a statute expressly allows and encourages parties to provide grievance procedures without the mandates of SDCL 1-26.

II. THE TRIAL COURT CORRECTLY DENIED THE MOTION FOR ADDITIONAL EVIDENCE

The trial court denied Beville's motion for additional evidence because it found

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that he failed to make an adequate showing that this evidence was material and that there were good reasons for failure to present such additional evidence as required by SDCL 1-26-34. The additional evidence Beville seeks to introduce in the record has not been presented to this court in any manner but as a summary in appellant's brief. It is therefore difficult to review the trial court's decision without such evidence. No necessary offer of proof was made. State v. Sieler, 397 N.W.2d 89 (S.D.1986).

The motion for additional evidence under SDCL 1-26-34 is discretionary with the court. State, Division of Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42 (S.D.1984). We must therefore determine...