Board of Trustees of State Colleges v. Sherman

• Decision Date: 03 June 1977
• Docket Number: No. 6,6
• Citation: 373 A.2d 626,280 Md. 373
• Parties: BOARD OF TRUSTEES OF the STATE COLLEGES of Maryland v. Ruth L. SHERMAN.
• Court: Maryland Court of Appeals

Page 373

280 Md. 373

373 A.2d 626

BOARD OF TRUSTEES OF the STATE COLLEGES of Maryland v. Ruth L. SHERMAN.

No. 6.

Court of Appeals of Maryland.

June 3, 1977.

Glenn E. Bushel, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellant.

Robert H. Levan, Hyattsville (Feissner, Garrity, Levan & Schimel, Hyattsville, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

SMITH, Judge.

We shall here hold that appellee, Ruth L. Sherman (Dr. Sherman), did not achieve tenure as a member of the faculty of Bowie State College. She sued the Board of Trustees of the State Colleges of Maryland (the Board) together with certain Bowie officials. The officials were sued individually as well as in their official capacities. The first count of her declaration sought a declaratory judgment. Although a number of items are mentioned, she basically sought a determination that 'she was a tenured faculty member,' and asked for a mandatory injunction directing her reinstatement. The second count was for breach of contract. The third count involved fraud and misrepresentation.

The trial judge granted Dr. Sherman's motion for summary judgment on the issue of tenure and enjoined the Board to reinstate her to her former position. He directed that the case 'be set down for further hearing on the issue of monetary damages . . ..' The Board filed an immediate appeal to the Court of Special Appeals. ¹ We granted the writ of certiorari prior to consideration of the case by that court.

The trial judge based his decision on a conclusion that Dr. Sherman entered the 'tenure track' in 1970 and thus had attained tenure at the time of her dismissal as of June 30, 1974, by a notice given June 6, 1973. This presents the nub of this controversy. It is conceded that although three years service was required to acquire tenure at the time Dr. Sherman was hired, there had been an earlier five year provision at Bowie which possibly contributed to the confusion in this case.

On July 8, 1970, Dr. Sherman executed a form headed 'APPLICATION FOR A NON TEACHING POSITION,' the 'Non' having been inserted by someone above the title to the form. On July 14, 1970, she was hired for the school year beginning September 1, 1970. The contract provided in pertinent part:

'2. General Conditions Governing Academic Freedom and Tenure.

'The FACULTY MEMBER will enjoy the rights and be subject to the provisions of the BOARD'S Regulations and Procedures Governing Academic Freedom and Tenure as the same may be amended from time to time. A current copy of these Regulations and Procedures has been furnished to the FACULTY MEMBER along with this contract and has been read by him prior to his affixing his signature thereto.

'4. Additional Conditions.

'Assignment will be half-time in teaching and half-time in counseling during the academic year and full-time in counseling during the summer, excluding one month of leave.'

The preamble to the 'Regulations and Procedures Governing Academic Freedom and Tenure,' to which reference is made in the contract, provides that '(t)he term 'faculty member' as used in th(o)se Regulations and Procedures shall mean persons appointed to full-time teaching and/or faculty research positions at the State Colleges.' (Emphasis added.) Article Two, Section One of those regulations provides in pertinent part:

'The Board recognizes that financial security is necessary to enable faculty members to render maximum service to the institutions where they are appointed. To establish such security, faculty members appointed for the academic year commencing September 1970 and thereafter shall attain permanent tenure at the college to which they are appointed in accordance with the following regulations:

1. The initial appointment shall be of a probationary nature, and shall be for a period extending to the end of the first academic year. Such probationary appointment shall be automatically renewable for additional periods of one full academic year each, unless the college president shall give written notice of the nonrenewal of appointment for any succeeding academic year as follows:

a. Not later than March 1 during the initial period of probationary appointment . . ..

b. Not later than December 15 during the second year of probationary appointment.

c. Thereafter, not later than at least twelve (12) months prior to the expiration of an appointment.

4. In the case of an associate professor and a full professor, the total number of their annual probationary appointments (including the initial appointment even if less than one year) shall not exceed three at that institution.

6. In every case, upon completion of the maximum number of probationary appointments, the faculty member shall attain permanent tenure. The Board may, in exceptional cases, decrease the length of the probationary period or, with the consent of the faculty member concerned, increase the length of the probationary period.'

On March 3, 1971, Dr. Sherman addressed a letter to the president of Bowie in which she said she 'would like to make formal application for the position as a professor in the graduate school program for the academic year 1971-1972.' She added that if she were 'accepted for such a position, (she) would relinquish (her) function as Director of the Counseling Center.' This was followed on April 15, 1971, by what was styled 'Addendum to Faculty Contract' between Dr. Sherman and the college by which she was hired as a professor for the 'ten-month period, effective September 1, 1971.' The addendum indicated that her 'tenure status' would be '(p)robationary.' It was on a prepared form which had 'June 30, 1974,' inserted after the statement, 'Current regulations require that you be notified concerning the termination of your probationary period by . . ..' The similar date of 'July 1, 1972,' was inserted on the addendum dated April 11, 1972, in which her salary was agreed upon for the school year beginning September 1, 1972. The latter form had on it, 'A condition of offering this addendum is that you submit a statement waiving rights to tenure before July 1, 1975.' This was done under date of April 24, 1972. The April 11, 1972, addendum was accompanied by a letter from the college president saying in pertinent part:

'Technically, you were employed at Bowie State College under the old system that required five years of service before attaining tenure; however, a new contract was issued to you which specified a period of three years of service as a requirement for attaining tenure.

'I am prepared to extend your contract for another year only if it does not lead to tenure. If you accept these conditions, please submit to me by May 1 a written statement waiving rights to tenure before June 30, 1975.'

On April 16, 1973, the last addendum was executed. It pertained to employment for the college year beginning September 1, 1973. It, too, referred to her having probationary tenure status and said that regulations required that she be notified concerning the termination of her probationary period before June 30, 1974.

On June 6, 1973, the president of Bowie advised Dr. Sherman that it was his 'unpleasant duty to inform (her) that (her) contract as a faculty member at Bowie State College' would be terminated 'at the end of the (then) coming academic year, after which it w(ould) not be renewed.' He added, 'This means that you will no longer be employed to Bowie State College after June 30, 1974.' The die was...