Moore v. Utah Technical College
| Decision Date | 21 October 1986 |
| Docket Number | No. 19546,19546 |
| Citation | 727 P.2d 634 |
| Parties | 35 Ed. Law Rep. 803, 1 IER Cases 1534 John MOORE, Plaintiff and Appellant, v. UTAH TECHNICAL COLLEGE, Defendant and Respondent. |
| Court | Utah Supreme Court |
Darrell G. Renstrom, Ogden, for plaintiff and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, Robert L. Gardner, Cedar City, for defendant and respondent.
John Moore initiated this action against Utah Technical College at Provo ("Utah Tech") for allegedly failing to comply with proper termination procedures in violation of Moore's constitutional and contractual rights. Moore appeals a summary judgment of dismissal. We affirm.
In July 1977, Moore was hired by Utah Tech as a probationary instructor for one year. 1 When Moore commenced his employment, the following tenure and retention policy ("1977 policy") was in effect and part of the school's policy and procedure manual:
2.4.0 Tenure
....
All newly appointed probationary staff members must be aware and understand the following 1. The precise terms and conditions of every appointment will be stated in writing and be in the possession of both institution and staff member before the appointment is consummated.
2. If the staff member is not to be continued in service, notice shall be given three months prior to the expiration date of his/her current appointment period, and the staff member shall be accorded due process.
(Emphasis added.)
In May 1978, Utah Tech issued Moore a notice of appointment for the 1978-79 school year. Moore signed the notice the following day and returned the same to Utah Tech.
On January 24, 1979, Utah Tech's president approved changes to Utah Tech's tenure and retention policy contained in the school's policy and procedure manual. These changes were approved by Utah Tech's institutional council on February 7, 1979, to become effective February 16, 1979. The new policy ("1979 policy") provided in pertinent part:
2.15.0 Tenure
....
Tenure is that provision of employment attained by a full-time, professional staff member after completion of a three-year probationary period during which the staff member's performance is found to be such as to make him/her an asset to the institution.... [T]he President of the institution shall have authority to extend the probationary period an additional year. The probationary period shall not be extended for more than two additional years. The staff member shall be so notified in writing.
....
All probationary staff members must be aware and understand the following:
1. The precise terms and conditions of every appointment will be stated in writing (letter of appointment, Policy & Procedures Manual, etc.), and be in the possession of both institution and staff member before the appointment is consummated.
2. If service is not to be continued, notice shall be given three months prior to the expiration date of his/her current appointment period.
In May 1979 and May 1980, Moore accepted one-year probationary appointments with Utah Tech for the 1979-80 and 1980-81 school years. The 1980-81 Notice of Appointment provided that Moore's employment would be continued throughout the term of the appointment "unless released by the President in accordance with institutional regulations, policies and procedures." 2 This notice was also stamped: "For your information, this letter of appointment is for your fourth probationary year toward gaining tenured status." (Emphasis in original.)
In 1980, the Board of Regents instructed the president of Utah Tech to re-evaluate the college's tenure program and conform it to the Regent's policies on that subject. Consequently, on February 20, 1981, Utah Tech's Institutional Council revised its tenure and retention policy including its policy concerning nonretention of nontenured instructors. The following is the pertinent portion of the adopted policy ("1981 policy"):
2.14.9.8 Termination of Nontenured Faculty
This policy does not require proceedings to terminate the employment of a nontenured faculty member at the end of his/her contract period by nonrenewal of his/her appointment, except as hereinafter specified.
... Nevertheless, if a nontenured faculty member alleges that the nonrenewal of his/her contract is based on discriminatory or prejudicial treatment in violation of his/her constitutional rights, he/she shall be accorded the procedural due process provided in this policy. Upon written notice to the President of such an allegation and request for a hearing, the faculty member shall have the burden of introducing valid evidence sufficient to support a decision that the nonrenewal was based on discriminatory, prejudicial facts and reasons. Review on appeal shall be limited to a determination of whether the President has met the nonprejudicial, nondiscriminatory requirement.
A. Advance Notice of Termination.
When the administration wishes to discontinue a nontenured faculty member's appointment ... advance notice will be given in writing by the President as follows: (1) for faculty who have served for more than one academic year, notice will be given not later than December 15 if the appointment expires at the end of that academic year....
(Emphasis added.)
On March 5, 1981, Moore was given a three-month notice of nonrenewal effective June 5, 1981 (the last day of Moore's employment for the academic year). The 1981 policy was transmitted to the Board of Regents who "approved" the same on March 10, 1981. The denial of Moore's request for a hearing under either the 1977 or 1981 policy led to this litigation. Utah Tech does not claim Moore was given the notice for "cause" or was otherwise discharged.
On appeal, Moore claims that the central issue is whether or not he was entitled to a hearing prior to the nonrenewal of his employment contract. The right to such a hearing may be granted by the state or federal constitutions, by statute, by administrative rule, or provided for by contract. Moore believes that because the school decided not to provide such a hearing, he is still a Utah Tech employee; Moore's complaint prays for reinstatement with back salary and he implicitly claims he has a contractual employment right until such time as Utah Tech properly terminates him, or does not rehire him, as the case may be, in accordance with the terms of his contract.
Under the due process clause found in the fourteenth amendment of the United States Constitution, the prerequisites to claiming a right to a pretermination evidentiary hearing are: (1) state action; and (2) a constitutionally protected liberty or property interest. 3 A nontenured instructor whose employment contract is based upon a one-year appointment does not have a constitutionally recognizable property right to be reappointed. 4 Therefore, a hearing prior to the non-renewal of such a contract is constitutionally required only when the decision not to rehire the nontenured instructor deprives him or her of a liberty interest protected by the fourteenth amendment. 5 In Board of Regents v Roth, 6 the United States Supreme Court held that the decision not to rehire a nontenured instructor would not deprive him or her of a liberty interest unless it was in retaliation for the teacher's exercise of his or her constitutional rights. 7
Moore concedes that at the time he received his nonrenewal notice, he was not a tenured instructor at Utah Tech. Moreover, Utah Tech did not discharge Moore for "cause." It simply decided not to rehire him after the 1980-81 school year. Finally, Moore did not allege in his complaint that the decision not to renew his contract was made in retaliation for the exercise of his constitutional rights. In accordance with the principles set forth above, Moore had no constitutional right to a hearing prior to the non-renewal of his contract.
Moore claims that Utah Tech's policy and procedure manual conferred upon him a right to a hearing prior to the nonrenewal of his contract. He relies upon two theories to support his claim of a contractual right to a hearing.
In his first argument Moore claims that the 1977 policy, which, as previously noted, provided that probationary staff members were to be accorded "due process" prior to contract nonrenewal, was "instituted" and "adopted" by the State Board of Regents. He then points out that the 1979 policy, which deleted the reference to "due process," was never submitted to the Board of Regents for approval after being adopted by Utah Tech's president and its institutional council. The contention is that because the 1979 policy was not approved by the Board of Regents, it was of no effect; in Moore's words, "what the Board of Regents gives, cannot be taken away by an institutional council except by approval; and in this case, it is conceded by the defendant/respondent the approval was never obtained by the school." Thus, Moore would have this Court conclude that his termination had to be in compliance with the 1977 policy. In this regard, Moore contends that the "due process" guaranteed under the 1977 policy at a minimum grants him a right to a hearing prior to the nonrenewal of his contract. The problem with this argument is that the record is devoid of evidence to support his claim that the State Board of Regents "instituted" or "adopted" the 1977 policy. Indeed, it appears that no such evidence exists.
Since 1919, the State Board of Education has been also designated the State Board for Vocational Education. 8 In 1947, the legislature clarified the powers of the State Board of Education with respect to Utah Tech. 9 Of particular concern is the scope of these powers from December 1973 through the year 1977. During this period, section 53-16-14 (Repl.Vol. 5B, 1970 ed.) (amended 1978), provided in pertinent part:
Utah Technical College at Provo ... shall be under the management, control and supervision of the state board for vocational education, which board shall prescribe the courses of...
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