Marder v. Board of Regents

• Decision Date: 29 November 2005
• Docket Number: No. 2003AP2755.,2003AP2755.
• Citation: 2005 WI 159,706 N.W.2d 110
• Parties: John MARDER, Plaintiff-Appellant-Cross-Respondent-Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Supreme Court

706 N.W.2d 110

2005 WI 159

John MARDER, Plaintiff-Appellant-Cross-Respondent-Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Respondent-Cross-Appellant.

No. 2003AP2755.

Supreme Court of Wisconsin.

Argued September 27, 2005.

Decided November 29, 2005.

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For the plaintiff-appellant-cross-respondent-petitioner there were briefs by Aaron N. Halstead and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Aaron N. Halstead.

For the defendant-respondent-cross-appellant the cause was argued by Jennifer Sloan Lattis, Assistant Attorney General, with whom on the brief was Peggy A. Lautenschlager, Attorney General.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This is the review of a decision from the court of appeals reversing the order of the circuit court for Douglas County, Robert E. Eaton, Judge, that reversed the decision of the Board of Regents of the University of Wisconsin System (Board) to terminate John Marder, a tenured faculty member at the University of Wisconsin-Superior (UW-Superior).

¶ 2 Marder does not assert that there was insufficient evidence presented to the Board to terminate him for just cause. Instead, he argues that: (1) the Board failed to accord him a fair hearing under the contested case procedures of ch. 227, which prohibits ex parte communications with the decision-maker on the merits of the case and provides specific remedies when such communication occurs; and (2) the Board was a biased decision-maker, thereby denying him due process of law, because of three alleged ex parte communications: (a) between the chancellor of UW-Superior and Regent Toby Marcovich; (b) between counsel advising the chancellor and counsel advising the Board; and (c) between the chancellor and the Board just before the Board voted to terminate him.

¶ 3 We conclude that the proper pre-termination procedure for a tenured faculty member of the University of Wisconsin System is set out in Wis. Stat. § 36.13(5) (2003-04)¹ and Wis. Admin. Code § UWS 4 (Apr., 2001),² which the Board correctly employed, and that there has been no showing that Marder's rights were compromised by alleged ex parte communications between the chancellor and Regent Marcovich or between the University of Wisconsin System counsel who advised the chancellor and the Board. However, based on the record before us, we cannot determine whether in the communication between the chancellor and the Board, which occurred immediately before the Board voted to terminate Marder, the chancellor presented new facts to the Board upon which its decision to terminate Marder was based. Therefore, we remand to the circuit court for the limited purpose of making that determination. We leave to the circuit court's discretion the decision of whether discovery is needed to determine whether the chancellor presented any new facts upon which Marder's termination was based. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 4 Marder was first employed by the UW-Superior in 1987; he was a tenured professor in the Department of Communicating Arts. In 1999, UW-Superior Chancellor Julius Erlenbach served Marder with a Statement of Charges that included 18 separate charges against him that the chancellor said "evince a pattern of behavior that is inconsistent with the expectations this university has of tenured faculty members and which further violate standards of professional conduct, thus constituting just cause to dismiss you from your tenured faculty position at UW-Superior." The chancellor advised Marder that he had the right to request a hearing on the chancellor's decision to terminate his employment.

¶ 5 The Statement of Charges that led to the chancellor's decision to dismiss Marder included the following: (1) Marder shared a hotel room with a particular female UW-Superior student and drank too much alcohol which caused him to "black-out" so that he was unable to remember if he had engaged in sexual misconduct; (2) Marder shared hotel rooms and traveled with a different female UW-Superior student who complained to the Affirmative Action Committee that Marder engaged in inappropriate sexual conduct, causing the Committee to find that he had engaged in improper behavior with the student; (3) Marder manipulated student evaluations by playing a tape recording relating to his removal as advisor to the student newspaper for his editing class during the final five or six minutes of class in the middle of the semester, and then distributed course evaluations, for the students to complete, even though evaluations were not to be done until the end of the semester; (4) Marder continued to complain because one of his colleagues had married a departmental secretary, causing considerable conflict with her and requiring corrective action by the Provost; (5) Marder repeatedly engaged in harassing and disruptive behavior toward his faculty colleagues and departmental staff, which became so unpleasant that the Provost moved Marder's office out of the Communicating Arts building and adjusted his workload; (6) Marder was the custodian of the accounts for the student newspaper when various irregularities in its accounts occurred; (7) Marder sent a letter to the Wisconsin Attorney General containing misrepresentations of fact about his departmental chair; and (8) Marder sent a letter to the UW-Superior auditor that contained confidential and inaccurate information about a colleague, in an effort to draw the auditor into an intra-departmental conflict.

¶ 6 Marder requested a hearing on his termination, pursuant to Wis. Admin. Code § UWS 4.04.³ In January of 2000, pursuant to § UWS 4.03,⁴ a Committee of Faculty Terminations (CFT), comprised of four tenured faculty members at UW-Superior, held two days of hearings and rejected the chancellor's recommendation to terminate Marder. However, the CFT found that there had been "a near total breakdown in collegiality in the Department of Communicating Arts," and that Marder "engaged in a course of conduct that is simply unacceptable on this or any other university campus." The committee did not recommend that Marder be dismissed, but did recommend that he be transferred to another department and that he be forced to undergo professional counseling.

¶ 7 During the CFT hearing, attorneys from the Office of the General Counsel of the University of Wisconsin System (General Counsel's Office), including Patricia Brady (Brady) and Anne Bilder (Bilder), served as legal counsel to the chancellor. They were under the supervision of Attorney Elizabeth Rindskopf Parker, who was at the same time acting as legal counsel to the Board.

¶ 8 After the CFT issued its decision, the chancellor persisted in his intention to terminate Marder, and pursuant to Wis. Admin. Code § UWS 4.07(1),⁵ he recommended to Katherine Lyall, President of the University of Wisconsin System, that Marder be dismissed. In that recommendation, the chancellor reported that Marder had been the subject of a number of formal and informal complaints by students, faculty, staff and the chair of his department at UW-Superior, involving matters of alleged sexual misconduct with students, alleged inappropriate conduct as an instructor and troubled relationships with fellow faculty members. In the same recommendation, the chancellor also noted that, in accordance with § UWS 4.07(1), he had reviewed the record of the CFT hearing and the CFT report rejecting his recommendation to terminate Marder, that the CFT's report contained errors of law and fact, that the CFT's recommendations were unrealistic⁶ and that Marder should be dismissed.

¶ 9 The chancellor explained that the record of the hearing disclosed serious instances of misconduct, and that after hearing these facts, he could not accept the CFT's conclusion that termination should not occur. He asserted that Marder's dismissal was necessary to maintain faculty morale and the integrity of the University, and he requested that President Lyall forward his recommendation to the Board for further consideration.

¶ 10 President Lyall referred the chancellor's request to the Personnel Matters Review Committee (PMRC) of the Board for review. Attorneys Brady and Bilder continued to provide counsel to the chancellor during the proceedings before the PMRC.

¶ 11 On March 8, 2001, the PMRC recommended to the Board that the dismissal proceedings against Marder be discontinued, but that Marder be placed on notice that his past behavior could be used against him if he were involved in a subsequent disciplinary proceeding. The Board did not accept this recommendation and returned the matter to the PMRC for hearing.

¶ 12 The PMRC held a hearing at which it invited argument from Marder and the chancellor. It again recommended that Marder not be terminated, but it failed to include within its recommendation proposed findings of fact and conclusions of law. Therefore, the Board returned the case to the PMRC for preparations of proposed findings and conclusions.

¶ 13 On June 8, 2001, the Board held a meeting in Milwaukee at which Marder's termination was discussed. The chancellor flew from Superior to Milwaukee for that meeting with Regent Marcovich. At the meeting, the chancellor addressed the Board in closed session about his decision to terminate Marder. Attorneys from the General Counsel's Office, including those who advised the chancellor and those who advised the Board, were present. Marder and his attorney were not allowed to be present. Directly following the closed session, the Board voted 11 to 3 in open session to accept the chancellor's recommendation to terminate Marder.

¶ 14 The Finding of Fact, Conclusions of Law and Order of the Board from the termination proceedings included the following:

(2) A female UW-Superior student accused Professor Marder of inappropriate conduct during a school-related trip to New York City in March 1995. He admitted...