Lewandoski v. Vermont State Colleges, AFL-CIO

• Decision Date: 07 February 1983
• Docket Number: AFL-CIO,No. 524-81,524-81
• Court: Vermont Supreme Court
• Parties: , 119 L.R.R.M. (BNA) 2077, 10 Ed. Law Rep. 223 Jan LEWANDOSKI and the Vermont State Colleges Faculty Federation, AFT Local # 3180,v. VERMONT STATE COLLEGES.

Page 1384

457 A.2d 1384

142 Vt. 446, 119 L.R.R.M. (BNA) 2077,

10 Ed. Law Rep. 223

Jan LEWANDOSKI and the Vermont State Colleges Faculty

Federation, AFT Local # 3180, AFL-CIO v. VERMONT STATE COLLEGES.

No. 524-81.

Supreme Court of Vermont.

Feb. 7, 1983.

Michael T. Schein of Hoff, Wilson, Powell & Lang, P.C., Burlington, for plaintiffs-appellants.

Doremus, Congleton, Jenkins & Sutherland, Essex Junction, for defendant-appellee.

Before BILLINGS, HILL, UNDERWOOD and PECK, JJ., and DALEY, J. (Ret.), Specially Assigned.

BILLINGS, Justice.

Grievant Jan Lewandoski was formerly an assistant professor of political science at Johnson State College [hereinafter "Johnson"], one of the defendant Vermont State Colleges. On December 17, 1980, the president of Johnson informed grievant that he had been denied tenure due to his failure to acquire either a terminal degree in his major teaching field, or an approved substitute. Grievant appropriately grieved his tenure denial, and appealed the negative result to the Vermont Labor Relations Board [hereinafter "Board"]. 3 V.S.A. §§ 926, 928. The Board heard evidence over the course of three days, sitting each time with a quorum of two members present. Although none of the three member Board attended more than two sessions, both parties agreed to go forward without objection, on the understanding that all three Board members would read the transcripts of testimony they missed and review the entire record prior to rendering a decision. After such review, the Board upheld the tenure denial, and this appeal followed.

Grievant briefs three arguments for our consideration: (1) that since no single member of the Board attended all three days of hearing, the Board was improperly constituted, thus lacking subject matter jurisdiction and depriving grievant of due process of law; (2) that grievant was caught in a major policy shift with insufficient time to comply, and thus was arbitrarily denied tenure by strict application of new criteria which differed substantially from prior policy; and (3) that even if application of the new policy criteria were proper, the college president arbitrarily refused to consider grievant's "professional experience, attainment, and/or training" as a substitute for his lack of a terminal degree. We will consider each of these arguments in turn.

Grievant first contends that because of the failure of at least one Board member to attend all three hearings, the Board lacked subject matter jurisdiction, and thus was without legal authority to dismiss his claim. In support of this contention, he cites the case of Suitor v. Suitor, 137 Vt. 110, 400 A.2d 999 (1979) (per curiam), and the rule that "[p]ublic administrative bodies have only such adjudicatory jurisdiction as is conferred on them by statute, with nothing presumed in favor of their jurisdiction." Gloss v. Delaware & Hudson R.R., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977) (citing In re Lake Sadawga Dam, 121 Vt. 367, 370, 159 A.2d 337, 339 (1960)).

In the Suitor case we dealt with the validity of a superior court contempt order which had been issued solely by the presiding judge. The assistant judges participated neither in the hearing nor in the decision. Under the statutes controlling at that time, a quorum of two judges was required for superior court actions, 4 V.S.A. § 111(a), unless two of the judges were disqualified. 4 V.S.A. § 112. As there had been no showing that the assistant judges were disqualified, we held that the presiding judge alone did not constitute a statutory court, that the court therefore lacked subject matter jurisdiction over the cause, and thus that the order was without basis in law.

A review of the statutory scheme controlling the composition and authority of the Vermont Labor Relations Board reveals that grievant's reliance on the Suitor case is misplaced, for the Board has complied with its authorizing legislation. Under 3 V.S.A. § 921(a), the Board is composed of three members, and it is vested with authority by 3 V.S.A. § 926 to hear and determine grievances. As no mention is made in Title 3 of the number of Board members constituting a quorum with authority to act, resort must be had to those statutes governing general rules of construction. Becker v. Selectmen of Bennington, 123 Vt. 6, 10, 178 A.2d 399 402 (1962). Section 172 of Title 1 provides that when joint authority is given to three or more persons, the concurrence of a majority of such number shall be sufficient and required for the proper exercise of authority. Nowhere in this statutory scheme is there support for the argument that the two person quorum must actually be composed of the same two persons in proceedings taking place over time.

In the present case, it is uncontested that at each of the three hearings, a quorum of the Board was present. The authority of the Board to conduct the hearings was therefore properly exercised in keeping with 1 V.S.A. § 172 and 3 V.S.A. §§ 921(a), 926. After the hearing, each Board member reviewed the entire record, with special attention to those portions of the transcript containing testimony he had missed. All three members participated in the decision and signed opinions and the resulting order. Thus, even "with nothing presumed in favor of their jurisdiction," Gloss v. Delaware & Hudson R.R., supra, 135 Vt. at 422, 378 A.2d at 509, the Board in this case was statutorily constituted and had the legal power "to deal with the subject matter of this controversy." Suitor v. Suitor, supra, 137 Vt. at 111, 400 A.2d at 100. See also In re Burlington Electric Department, 141 Vt. 540, 450 A.2d 1131 (1982).

However, our holding that there was no jurisdictional defect impairing the Board's authority does not resolve the question of a due process violation, which grievant asserts on the basis of the Board's shifting composition throughout the hearing process. Grievant raised this question, as well as the jurisdictional issue, with the Board below by way of a motion for rehearing. While rejecting the jurisdictional argument, the Board apparently found a due process violation, but further found grievant to have waived the issue:

[W]e do believe there is a due process question here. Grievant has the right to have two of the same members of the Board hear this case throughout. However, Grievant waived this right by agreeing to go forward with the hearings in the absence of the full Board with the understanding that all three Board members would participate in the decision after reviewing the entire record and reading the transcript of the testimony they missed. We believe a due process right can be willingly and knowingly waived, as it was here, and this distinguishes it from a jurisdictional defect.

Grievant contends that since his advocate at the hearing was a union representative, not an attorney, the apparent waiver was ineffective. However, we need not determine the waiver's validity, for we hold that, while such irregularities in Board hearings are not to be encouraged, and while it is obviously preferable that the Board's membership remain consistent throughout the hearings in any one cause, such a constant is not required by the due process clause. Therefore, on the facts of this case there is no due process violation.

The essence of grievant's due process claim is that one who has not "heard" the testimony is precluded from making a fair factual determination, and thus may not constitutionally adjudicate the cause. This is a case of first impression for this Court, and to aid in our determination grievant directs our attention to the following cases from other jurisdictions: Miskovich v. City of Helena, 170 Mont. 138, 551 P.2d 995 (1976); Chanaberry v. Gordy, 200 Tenn. 220, 292 S.W.2d 18 (1956); McAlpine v. Garfield Water Commission, 135 N.J.L. 497, 52 A.2d 759 (1947); Perkins v. School Committee of Quincy, 315 Mass. 47, 51 N.E.2d 978 (1943); Hawkins v. Common Council, 192 Mich. 276, 158 N.W. 953 (1916). Our research indicates that these cases, several of which are factually distinguishable, in any event represent a minority view which we are not inclined to follow.

The source of the rule relied on by grievant, that "the one who decides must hear," is the Supreme Court case of Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936). That case concerned whether transcribed testimony taken by a trial examiner might constitutionally serve as the basis for findings and a rate setting order by the Secretary of Agriculture, who had not actually heard the evidence. Although in that case the Court remanded for a new hearing in compliance with authorizing legislation, it went on to indicate that in many administrative proceedings, decisions could permissibly be based solely on a considered review of the transcribed record and the evidence presented. The Court held that "[e]vidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates.... [T]he officer who makes the determinations must consider and appraise the evidence which justifies them." Id. at 481-82, 56 S.Ct. at 912.

In NLRB v. Stocker Mfg. Co., 185 F.2d 451 (3d Cir.1950), the court relied on Morgan and NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938) (holding the NLRB could act solely upon transcribed records and oral arguments, without the benefit of a report by the trial examiner who heard the testimony). In so doing, the court held that:

The doctrine of these cases clearly permits the Board to make its findings and predicate its orders upon the written record without hearing the witnesses testify or availing itself of findings and recommendations prepared by the officer who heard and observed the witnesses testify. Under the Mackay case, due process permits dispensing with the hearing examiner's report altogether. The Morgan opinion says that the officer who actually decides the controversy may do...