Johnson v. Board of Regents of University of Wis. Sys.

• Decision Date: 13 June 1974
• Docket Number: No. 74-C-142.,74-C-142.
• Citation: 377 F. Supp. 227
• Parties: Glenn Douglas JOHNSON et al., Plaintiffs, v. The BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

377 F. Supp. 227

Glenn Douglas JOHNSON et al., Plaintiffs, v. The BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM et al., Defendants.

No. 74-C-142.

United States District Court, W. D. Wisconsin.

June 13, 1974.

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Michael S. Weiden of Lawton & Cates, Madison, Wis., for plaintiffs.

Le Roy L. Dalton, Asst. Atty. Gen. of Wis., Robert W. Warren, Atty. Gen. of Wis., Madison, Wis., for defendants.

JAMES E. DOYLE, District Judge.

Plaintiffs allege that they are tenured members of the faculties of several campuses of the University of Wisconsin, a state institution, and that as a result of action taken by the defendant state officials, plaintiffs will no longer be employed in their positions on and after July 1, 1974. They bring this action pursuant to 42 U.S.C. § 1983 and 28 U. S.C. § 1343(3), contending among other things that the defendants have denied the plaintiffs that minimal procedural due process which is guaranteed them by the Fourteenth Amendment. It is upon this contention alone that plaintiffs rely in their motion for a preliminary injunction to require defendants to continue the plaintiffs in their present employment unless and until minimal procedural due process is afforded them. It is to this motion that the present opinion and order are directed.

Jurisdiction is present.

I have examined all of the pleadings, affidavits, appendices and the entire record. Time has not permitted me to make factual findings in as much detail as I would wish, but I believe that those I am about to make are adequate to permit action on the pending motion. Accordingly, for the purpose of deciding the motion for a preliminary injunction, and for no other purpose, I find as fact those matters set forth in the following section of this opinion entitled "Facts."

Facts

The 1973-1975 University System biennial budget approved by state government confronted units of the System with serious budget contraction. The principal ingredients of this problem were: (a) a flat requirement that there be a 2.5% reduction in the base budget of the System for 1973-1974, and another 2.5% reduction for 1974-1975; and (b) reduced enrollments on several campuses of the University of Wisconsin which, under state law, required a further reduction in funds available to those campuses. By December, 1972, a number of knowledgeable University System officials, whose responsibility was to deal with budgetary matters, had concluded that there would be insufficient funds available to continue to pay the salaries of all tenured members of faculty and staff in all departments of all campuses. Some of these System officials sought and obtained from state government an additional, and transitional, one million dollar appropriation for the principal purpose of paying the salaries for 1973-1974 of those tenured members of faculty and staff whose salaries could not otherwise have been paid during that year and whose salaries could not be paid thereafter. This was done in order to permit one year's notice to such persons.

The reduction in funds was allocated by the Central Administration of the System to the respective campuses on the basis of: (a) the required percentage reduction in the base budget of each campus; (b) the reduction required, campus by campus, by decreased enrollments, campus by campus.

The chancellor of each campus was assigned the responsibility to decide how to give effect to the reduction in funds for that campus. Each chancellor proceeded, in the spring of 1973, to make this decision. As a result of the respective decisions by the respective chancellors, each of the plaintiffs received a written notice on about May 15, 1973, from the chancellor of his or her campus stating that his or her position could not be funded effective June 30, 1974 (in at least one case, the effective date was a few weeks earlier than June 30, 1974).

At the time such notices were received, each of the plaintiffs was a "tenured" member of the faculty of his or her campus. The campuses of the plaintiffs included Oshkosh, Whitewater, Stevens Point, Platteville, Stout, and Eau Claire. As a tenured faculty member, each plaintiff's employment status was and is governed by Section 37.31, Wis. Stat., which provides in part that the "employment shall be permanent, during efficiency and good behavior. . . ." and that the employment "may not be terminated involuntarily, except for cause upon written charges." It has not been alleged that, at any time pertinent to this lawsuit, any of the plaintiffs was inefficient, or the behavior of any of the plaintiffs was other than good.

At all times from about May 15, 1973, to the present, efforts have been made by some or all of the defendants to provide employment within the System for the plaintiffs for the period following June 30, 1974. In some cases, these efforts have been successful. (On the present record, I am unable to make a finding as to which of the 38 plaintiffs have been assisted in this way, and which have not, although it appears that at least six have been so assisted.) However, a substantial number of the plaintiffs have not been offered other employment within the System.¹

Initially, the defendant Regents and members of Central Administration described as "termination" the anticipated action with respect to some members of the tenured faculty and staff (that is, the kind of action which was then actually taken in the case of these plaintiffs). However, as of May 11, 1973, it was decided by the Regents that this type of action was to be referred to as "lay-off." The reasons given to the Regents and accepted by them for this change in terminology were: that the applicable state statutes did not specify fiscal exigency as a basis for termination of tenured faculty; that the persons affected would continue as tenured faculty members (but without pay and without duties); that the persons affected would be entitled to "first refusal" for reinstatement to their positions if funds again became available within two years; that efforts to find other employment for them within the System were being made and would continue to be made; and that the term "lay-off" better avoids an implication that any act or omission of the person caused the University's action. (The term "lay-off" will be used hereinafter in this opinion and order, but I imply no opinion whether the action taken concerning these plaintiffs was a "termination," within the meaning of the Wisconsin statutes and regulations.)

With respect to tenured faculty whose employment is "terminated involuntarily," statutes and regulations of the state prescribe certain procedures as to written charges, hearings, and decision-making. With respect to "lay-offs," no procedural arrangements existed as of about May 15, 1973. Certain procedural arrangements governing the lay-offs were approved by the Regents on June 1, 1973, and the several chancellors of the campuses were informed of these arrangements on about June 13, 1973. These procedural arrangements were referred to as an "interim procedure for tenured faculty lay-off reconsideration." Plaintiffs were advised by the defendants that the interim "reconsideration" procedures, and only those procedures, were available to them. Thereafter, during the remainder of 1973 and into early 1974, such "reconsideration" procedures were engaged in. The plaintiffs have exhausted diligently the procedures made available to them by the defendants.

As prescribed by the Regents, the reconsideration procedures included the following elements:

The Regents' written description of the reconsideration procedure was to be delivered to the faculty persons affected. If requested then to do so by the faculty person, the chancellor was to have the appropriate department chairman or dean of college provide the faculty person a written explanation of the reason or reasons for the lay-off. The faculty person might then request in writing a reconsideration proceeding to review the decision to lay-off. The request for reconsideration was to be limited to:

"(a) whether there is sufficient evidence to support the decision to lay-off, and/or

"(b) whether there have been material deviations from the procedures established by the President and Chancellor relating to determination of fiscal and programmatic needs of the University."

With advice from the faculty governing body, each chancellor was to appoint a committee, to include at least five tenured faculty persons, to conduct the reconsideration proceedings. No person who took part in the original decision to lay-off a particular faculty person could sit during that faculty person's reconsideration proceeding. Presentations were to be limited to questions (a) and (b), above. Unless the faculty person waived the time requirement, a reconsideration proceeding was to be conducted within 30 days from the request for one, but in any event within 90 days. Thereafter, the committee was to report its findings and recommendations to the chancellor, and within 10 days thereafter the chancellor was to inform the faculty person of the chancellor's decision in writing. The decision of the chancellor was to be final.

Central Administration was directed by the Regents to issue guidelines to the chancellors making more specific the reconsideration procedures, and it did so on June 13. These guidelines from Central Administration recommended that:

The written explanation to be provided, when requested, should be sufficient to indicate to the affected faculty person that financial and programmatic needs had dictated staff reductions; what general policy considerations had entered into the decision; and how the particular faculty person or the particular faculty position had been chosen for lay-off.

If the affected faculty person then were to request a reconsideration proceeding, the faculty person should be afforded access to the university

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