King v. Board of Regents, Claremore Junior College

• Decision Date: 14 October 1975
• Docket Number: No. 47191,47191
• Citation: 541 P.2d 836
• Parties: Warren J. KING et al., Appellants, v. BOARD OF REGENTS, CLAREMORE JUNIOR COLLEGE and Richard H. Mosier, et al., Appellees.
• Court: Oklahoma Supreme Court

Page 836

541 P.2d 836

Warren J. KING et al., Appellants, v. BOARD OF REGENTS, CLAREMORE JUNIOR COLLEGE and Richard H Mosier, et al., Appellees.

No. 47191.

Supreme Court of Oklahoma.

Oct. 14, 1975.

Jesse D. Swift, Tom Lucas, Swift & Phillips, Sand Springs, for appellants.

Larry Derryberry, Atty. Gen., Joe C. Lockhart, Asst. Atty. Gen., Oklahoma City, for appellees.

BERRY, Justice:

Plaintiffs brought class action requesting declaratory judgment that termination of their employment was null and void. The trial court granted relief to one plaintiff. Plaintiffs appeal.

Prior to June 30, 1972, plaintiffs were employed as instructors at Claremore Junior College (formerly Oklahoma Military Academy). The school exists pursuant to 70 O.S.1971 §§ 3801--3806. Section 3802 creates a Board of Regents, and § 3806 grants the Board supervision, management, and control of the school, including authority to establish and maintain plans for tenure of employees.

During February, 1972, the Board appointed Dr. Richard Mosier to become President of the school effective July 1, 1972. It authorized him to use title President-Elect during interim, and hired him as consultant to make recommendations concerning retention of faculty for 1972--1973 academic year. A member of the Board testified Dr. Mosier was not authorized to hire and fire, but could have understood he had such authority.

On March 27, 1972, the Board rescinded existing tenure policy (the 1970 Tenure Policy) effective July 1, 1972. On August 16, 1972, it adopted a Faculty Security Policy to be effective as of July 1, 1972.

During April, 1972, Dr. Mosier wrote letters to 12 of the school's 33 faculty members including plaintiffs herein, notifying them that their contracts would not be renewed for 1972--1973 academic year. Four of the 12 had previously acquired tenure pursuant to the 1970 Tenure Policy, and 8 were 'non-tenured' instructors.

The letters stated various reasons for non-retention, including references to 'limited resources', 'best interests of the total institution,' and ability to retain 'another better qualified person for the position.'

On May 4, 1972, the Board voted to accept Dr. Mosier's recommendation with respect to non-tenured instructors.

The present action was filed on May 9, 1972. On August 23, 1973, the trial court rendered judgment finding non-tenured instructors were hired on annual contract basis with no vested right to re-employment, and therefore their rights were not violated when the school failed to renew their contracts.

On appeal the non-tenured instructors contend:

'The non-tenured professors should likewise have received their day in Court with a declaration of their rights to minimal due process and they should have been afforded a proper notice in writing stating cause from the Board of Regents on or before April 10, of the academic year as a bare minimum.'

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, the United States Supreme Court considered a similar contention. The Court recognized procedural due process only requires notice of reasons, and opportunity for hearing, to be furnished non-tenured instructor when decision not to rehire him deprives him of an interest in liberty or property protected by the 14th Amendment, U.S.Const.

The court held decision not to rehire non-tenured instructor would not deprive him of an interest in liberty unless it was in retaliation for instructor's exercise of constitutional rights, or the state in declining re-employment either (1) imposed a stigma or disability upon him which foreclosed his ability to take advantage of other employment opportunities, or, (2) make a charge against him which might seriously damage his standings and associations in his community, for instance, charges of dishonesty or immorality. See also Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

In the present case there was no evidence indicating non-tenured instructors were denied re-employment in retaliation for exercise of constitutional rights; that charges were made against them which might seriously damage their standing and association in the community; or that refusal to re-employ imposed a stigma, or other disability which foreclosed their freedom to take advantage of other employment opportunities. We conclude the Board's decision not to re-employ the non-tenured instructors did not deprive them of their liberty.

In Board of Regents v. Roth, supra, the Supreme Court stated that to have a property interest in a governmental benefit (here re-employment) one must 'have a legitimate claim of entitlement to it.'

The court further stated:

'Property interests * * * are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules and understandings that secure certain benefits and that support claims of entitlement to those benefits.'

The 1970 tenure policy remained effective until July, 1972. It contained the following provision concerning non-tenured instructors:

'During his first four years * * * the professor shall be in probationary status and subject to release at the end of any semester of his probationary period. Dismissal may be appealed to the President * * * who will request the Academic Council to review the case and make a recommendation. The President will then notify the dismissed professor in writing of his decision, which shall be considered final.'

Plaintiffs' argument is apparently that school had adopted policy requiring notice of non-renewal to be given prior to April 10; they were not given notice of non-renewal prior to that date; and they therefore had right to employment for 1972--1973 school year.

In Papadopoulos v. Oregon State Board of Higher Ed., 14 Or.App. 130, 511 P.2d 854, the court considered a regulation requiring notice of non-renewal to be given before specified date and stated:

'The effect of this regulation is to entitle the * * * employees to continued employment unless and until they receive timely notice of termination in accordance with the requirements of the regulation.'

See also Zimmerman v. Minot State College, N.D., 198 N.W.2d 108; Pima College v. Sinclair, 17 Ariz.App. 213, 496 P.2d 639; Loebeck v. Idaho State Bd. of Ed., 96 Idaho 459, 530 P.2d 1149.

Assuming the principle expressed in those cases is correct, the issue presented in present case is whether there were rules and understandings promulgated and fostered by state officials which entitled non-tenured instructors to notice of non-renewal prior to April 10.

Plaintiffs cite no applicable statutes requiring notice of non-renewal to be given before April 10, and there was no evidence the Board had adopted any rule, regulation, or policy requiring such notice. Neither the Faculty Handbook in effect at the time, nor prior contracts executed by the non-tenured instructors, provided for such notice.

Plaintiffs apparently contend the school had informally adopted such a policy.

There was evidence new instructors were told the school followed notice standards adopted by the American Association of University Professors. These standards provide non-tenured instructors will be notified of non-renewal before March 15 during first year of employment, before December 15 during second year, and 12 months in advance during subsequent years.

Mr. Thorpe, who was Dean of the college from 1969 until 1972, testified that in 1970 the school adopted the AAUP notice standards 'in practice.' He furnished copies of the standards to new faculty members but did not advise them such standards were a matter of legal right, or that their contracts would be renewed if notice provisions were not complied with.

He also testified the school once maintained a high school...