Papadopoulos v. Oregon State Bd. of Higher Educ.

• Decision Date: 27 June 1973
• Citation: 97 Adv.Sh. 669,14 Or.App. 130,511 P.2d 854
• Parties: Michael PAPADOPOULOS, Appellant-Cross-Respondent, v. OREGON STATE BOARD OF HIGHER EDUCATION, Respondent-Cross-Appellant.
• Court: Oregon Court of Appeals

Page 854

511 P.2d 854

14 Or.App. 130

Michael PAPADOPOULOS, Appellant-Cross-Respondent, v. OREGON STATE BOARD OF HIGHER EDUCATION, Respondent-Cross-Appellant.

Court of Appeals of Oregon.

Submitted on Record and Briefs March 5, 1973.

Decided June 27, 1973.

Michael Papadopoulos, pro se.

Lee Johnson, Atty. Gen., John W. Osburn, Sol. Gen., and Al J. Laue, Asst. Atty. Gen., Salem, for respondent-cross-appellant.

Herbert W. Titus, Cooperating Atty., Eugene, American Civil Liberties Union of Oregon Inc., amicus curiae.

Hans A. Linde, Eugene, Interinstitutional Faculty Senate, Oregon State System of Higher Education, amicus curiae.

Donald W. Brodie, Cooperating Atty., Eugene, and Stephen R. Goldstein, Philadelphia, Pa., for American Association of University Professors, amicus curiae.

Before SCHWAB, C.J., and FOLEY an FORT. JJ.

SCHWAB, Chief Judge.

Petitioner was employed as a Professor of Mathematics at Oregon State University from September 1967 to June 1970. In 1969 the respondent State Board of Higher Education or its subordinate officials at Oregon State decided to deny petitioner tenure and to terminate his employment. By way of this judicial review proceeding pursuant to the Administrative Procedures Act, ORS ch. 183, petitioner challenges those decisions. The circuit court upheld the Board and both petitioner and the Board appeal.

Literally dozens of issues have been briefed at length by petitioner and three amici supporting his position. The issues all relate to the substantive and procedural statutory and constitutional rights of public employes. For example, petitioner contends he was discharged because he engaged in First Amendment-protected activity or, alternatively, that his discharge was arbitrary; that he was entitled to a pretermination hearing on the reasons for his discharge; that the hearing he was accorded by the Board by order of the circuit court did not comply with the Administrative Procedures Act; and that the Board's discharge decision is not supported by substantial evidence. The Board, by its cross-appeal, contends the circuit court erred in ordering that petitioner be accorded a hearing on the reasons for his discharge. In our view the dispositive issue is whether petitioner was entitled to a hearing before being discharged effective June 1970. ¹

I

This record reveals, at the least, confusion on the part of the State Board of Higher Education and its subordinate officials at Oregon State University. To document this observation, we set out the facts in detail.

One source of confusion is the Board's regulations. See, Parts II and IV, infra. These regulations provide that academic personnel, like petitioner, are employed with 'yearly tenure' or 'indefinite tenure.' For the three years petitioner taught at Oregon State, he had only yearly tenure.

Petitioner assumed his duties as a Professor of Mathematics in the Department of Mathematics of the School of Science at Oregon State in the late summer of 1967. When he was offered this position by the Chairman of the Mathematics Department, before accepting it, petitioner inquired about the Oregon State tenure system. This was of some significance to petitioner, since another university had offered him a professorship with immediate tenure. The Chairman advised petitioner that under the Board's regulations it was not possible to be granted what those requlations term indefinite tenure when first hired. However, at the administrative hearing in this case several professors testified that they had been granted indefinite tenure at Oregon State when first hired.

In any event, correctly or incorrectly petitioner was informed it was not possible that he be granted indefinite tenure immediately. The Chairman did at least imply, and petitioner was led to believe, that the granting of indefinite tenure would be little more than a formality in his case.

Relying in part on these representations, and in part on the intent of the Mathematics Department to expand its programs in applied mathematics--petitioner's area of specialization--petitioner turned down other job prospects and accepted the offer from Oregon State. In fact, during the conversations that culminated in his employment at Oregon State, it was agreed that petitioner would devote a substantial amount of time to building the Department's applied mathematics curriculum. All indications are that petitioner diligently and effectively did so.

In December of 1968, after petitioner had been at Oregon State about 1 1/2 years, the Mathematics Department began processing a recommendation that petitioner be granted indefinite tenure. A four-member departmental committee unanimously recommended indefinite tenure for petitioner. The tenured faculty of the Department voted 20--1 in favor of indefinite tenure for petitioner. The Chairman of the Department added his own personal favorable recommendation.

The material generated in the Mathematics Department passed up the chain of command to John Ward, Dean of the School of Science. There had been previous instances in which Dean Ward displayed some displeasure toward petitioner. Between 1967--68, petitioner's first year at Oregon State, and 1968--69 most faculty members in the Mathematics Department received at least cost-of-living salary raises; through Dean Ward's efforts, petitioner did not receive any salary increase. Also, witnesses at the administrative hearing attributed to Dean Ward some highly defamatory statements about petitioner. ²

Dean Ward consulted with his informal six-member Advisory Committee on all recommendations for indefinite tenure. When petitioner's case was discussed, some question was raised about petitioner's progress on a monograph he was writing. Dean Ward then asked the Chairman of the Mathematics Department for an answer to this question. The Chairman responded by letter:

'* * * Professor Papadopoulos is working on a research monograph on the topic of the theory of distributions as it pertains to the study of hyperbolic partial differential equations with particular applications to diffraction problems. I know enough of this topic to recognize that this would fill a significant gap in research literature. I have heard Professor Papadopoulos deliver a one-hour colloquium on some aspects of these questions; my impression from his sketch was that he had some very interesting contributions completed and also there remained much work to be done before he could achieve the degree of completeness demanded by a monograph. He estimates that he has about 1/3 of a completed first draft and, of course, notes and sketches of later parts.'

Dean Ward did not tell his Advisory Committee of this letter; instead, purporting to be passing on an oral report, Dean Ward told the Committee there was no evidence that petitioner was making significant progress on his monograph. Also, Dean Ward told the Committee he had informally asked unidentified deans at other unspecified universities whether they would hire petitioner, and their answers were all in the negative. Not surprisingly, based on the information Dean Ward had furnished them, the Advisory Committee unanimously voted against recommending indefinite tenure for petitioner. The Committee was not asked to express any view on retention or nonretention of petitioner on an annual basis, and did not do so.

On February 25, 1969, Dean Ward then sent a letter to petitioner that stated:

'As you have been aware, the Department of Mathematics, and especially the faculty of the Department, have undergone intensive evaluation and review by an outside evaluation committee and internal committees. After many hours of discussion and evaluation of the recommendations of all groups concerned, I have had to make several decisions concerning recommendations for indefinite tenure for nontenured faculty members as well as informing faculty members not necessarily considered for tenure that they will not be reappointed to their positions * * *.

'* * * In your particular sitution, you will not be recommended by this office to the Dean of Faculty for reappointment to the faculty of the Department of Mathematics after the academic year 1969--70.'

In so far as it discloses a reason for his decision, Dean Ward's letter implies that petitioner's contributions to the Department of Mathematics were believed to be inadequate by various evaluation committees. The only evaluation reports to which Dean Ward Could have been referring are in the record before us. There is nothing in those reports that is any way critical of petitioner.

After receiving Dean Ward's letter, petitioner protested to the Faculty Senate Committee on Review and Appeals that he was being dealt with unfairly. That Committee considered petitioner's case along with two others. The Committee reported:

'* * *

'In the opinion of the members of the Review and Appeals Committee, faulty judgment was evident on the part of the previous chairman of the Department of Mathematics when he implied, during appointment negotiations with the appellants, that the granting of indefinite tenure was a routine matter and would occur in the natural course of events even though based upon 'mutual satisfaction.' * * * (S)tatements made to prospective appointees probably should have spelled out more carefully the process by which indefinite tenure was granted and the ultimate responsibility for such decisions.

'Nevertheless, inquires made by the Committee of the appellants and others disclosed that, while tenure matters were discussed (either orally or in writing), representations of the routine nature of indefinite tenure recommendations were such as to lead the appellants to believe that indefinite tenure would be granted as a matter of course. * * * Such implied commitment on the part of the department chairman apparently was not unique but, rather, appeared to be the prevailing practice at the time of the appointment of, or negotiation with, the...