Patterson v. Board of Regents of University of Wisconsin System

• Decision Date: 27 June 1984
• Docket Number: No. 82-1942,82-1942
• Citation: 350 N.W.2d 612,119 Wis.2d 570
• Parties: , 18 Ed. Law Rep. 420 Dean PATTERSON, Petitioner-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 612

350 N.W.2d 612

119 Wis.2d 570, 18 Ed. Law Rep. 420

Dean PATTERSON, Petitioner-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM Defendant-Respondent-Petitioner.

No. 82-1942.

Supreme Court of Wisconsin.

Argued April 23, 1984.

Decided June 27, 1984.

LeRoy L. Dalton, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. La Follette, Atty. Gen., for defendant-respondent-petitioner.

John S. Williamson, Jr. (argued), and Habush, Habush & Davis, S.C., Milwaukee, on brief, for petitioner-appellant.

Bruce Meredith, Madison, on brief, staff counsel, for amicus curiae Wisconsin Educ. Ass'n Council.

CECI, Justice.

This is a review of a decision of the court of appeals ¹ that reversed the judgment of the circuit court for Barron county, Honorable James C. Eaton, Circuit Judge. The circuit court had affirmed the decisions of the Board of Regents of the University of Wisconsin System and the University of Wisconsin Center System Appeals and Grievance Committee that the committee had no jurisdiction over a dispute concerning whether the respondent voluntarily resigned or was discharged from his position as a tenured instructor. Chancellor Edward Fort had previously determined that the respondent, Dean Patterson, had voluntarily resigned from his faculty position. Because we conclude that the respondent was denied his due process rights as a tenured professor, we sustain the holding of the court of appeals.

The record indicates that Patterson was a tenured geography instructor in the University of Wisconsin Center System. He taught courses in history, geography, and anthropology at the Barron county campus. By 1977, declining enrollments in the courses taught by Patterson made it difficult for fulltime teaching assignments to be made to him. In December of 1977, Patterson was notified by Dean Meggers that a steering committee would be appointed to investigate and evaluate his work, due to a number of faculty and student complaints. Shortly thereafter, Patterson requested and was granted sick leave for the coming semester because of various physical ailments.

Upon Patterson's return in the fall of 1978, virtually no students had enrolled in the two geography classes he was assigned to teach. The dean recommended that both classes be cancelled.

Subsequently, there was some discussion with Patterson concerning his fall assignment. On September 23, 1978, the executive committee of the department of geography and geology met in a closed session to review Patterson's job performance, pursuant to Associate Chancellor Daniel VanEyck's request. Patterson was notified of the meeting and attended part of the session. After considering the written materials submitted to the committee and Patterson's own presentation, the committee found his professional job performance to be less than satisfactory.

On November 29, 1978, Patterson met with the dean concerning his fall assignment. The assignment which the dean gave Patterson consisted of a major study of former students' profiles and demographic information to be used by the campus in its public relations work with the Barron county board and in work with area high school counselors. Patterson agreed that the assignment was a challenging and worthwhile one but refused to accept it until all allegations and all of the complaints that had been registered with the chancellor were dropped. The responsibilities of the student profile project were put in writing by the dean and sent to Patterson on November 30, 1978.

It appears that Patterson did not report for his assigned work on the student profile project and was contacted on December 14, 1978, and January 18, 1979, by Associate Chancellor VanEyck concerning his unexcused absences from work. The January 18 letter stated that unless Patterson reported for his assigned duties by 8:30 a.m. on January 23, 1979, his absence would be treated as a resignation from the university as of that date. Patterson responded on January 19 as follows:

"I am willing and available to teach classes, but I refuse to accept other duties until fully cleared of all charges, and only after these other duties are approved by the Geography Department."

On January 23, Patterson did report to the dean to discuss his assignment; however, he did not work on the student profile project. By letter, he stated that it was impossible for him to work on the Barron county campus while the charges against him remained unresolved. He requested that the chancellor deal immediately with any pending charges and dismiss those that were without substance. Meanwhile, he offered to take an unpaid leave of absence while these proceedings took place. He also stated that if the chancellor wished to eliminate his teaching position because of "a lack of need for it," he would resign if all other matters were dismissed and he was compensated for the remaining contractual period.

Chancellor Fort notified Patterson by letter on February 5, 1979, that because of his failure to report for work as previously assigned by 8:30 a.m. on January 23, 1979, his absence was treated as a resignation from his position at the university as of January 23, 1979.

By letter dated February 6, 1979, Patterson stated that he had not resigned and requested that the procedures set forth in UWS ch. 4, Wis.Admin.Code (1975), ² relating to just cause, due notice, and hearing be followed concerning his "discharge." Chancellor Fort responded by letter, restating his position that Patterson had resigned. However, he asked Patterson to attend a meeting on March 8, 1979, in order to allow Patterson to refute Fort's conclusion that he had resigned. Patterson attended the meeting, along with Associate Chancellor VanEyck, Dean Meggers, and Dr. Eugene Hartmann, but Chancellor Fort did not. A tape recording was made of the meeting, which Fort later reviewed. He concluded that Patterson's absence from his assigned duties constituted a constructive resignation.

Patterson subsequently applied for unemployment compensation benefits for the week ending January 27, 1979. The Wisconsin Department of Industry, Labor and Human Relations (DILHR) determined that Patterson's actions had been inconsistent with a continuing employment relationship with the university and had amounted to a "quit" and that he was, therefore, ineligible for the payment of unemployment compensation benefits.

In July of 1979, Patterson's attorney requested that the Appeal and Grievance Committee of the University Center System conduct a hearing on whether Patterson's termination resulted from a resignation or a discharge and, if a discharge, whether the grounds were adequate. The committee met and considered the question of whether it had jurisdiction to consider the dispute. The committee concluded that there were,

"... insufficient grounds to permit us to conclude that your dispute with the Center System is a 'dismissal for cause' as defined by UWS Chapter 4 and the Center System Constitution, Article 7.04."

The committee also found that the issues raised were not those of a "grievance" or "complaint" as described in UWS ch. 6, nor an "appeal" as defined in UWS Section 3.08, nor a dispute which would be covered by the regulations of UWS ch. 4. Therefore, the committee concluded that it had no jurisdiction in the dispute.

Thereafter, Patterson appealed the decision of the appeals and grievance committee to the board of regents. On June 9, 1980, the regents adopted a resolution sustaining the decision of the appeals and grievance committee, stating that "the record establishes that Mr. Patterson was not discharged from his position as a tenured Instructor at the UW Center-Barron County campus of the University of Wisconsin Center System." The petition for judicial review was filed in circuit court on July 8, 1980.

In a memorandum decision, the circuit court affirmed the board of regents, holding that due process had been afforded in the form of the reviews by the grievance committee, the board, and the court, together with the "clear and unequivocal instructions given by the University" to Patterson concerning his unexcused absences. Patterson subsequently appealed to the court of appeals.

In Patterson v. University Board of Regents, 114 Wis.2d 495, 339 N.W.2d 130, the court of appeals reversed the circuit court judgment and remanded the cause to the board, with directions to hold a hearing before an impartial decision maker on the question of whether Patterson quit or was discharged.

The court noted that Patterson had not sought review of the circuit court's conclusion that he had quit. The court instead observed that Patterson had argued that he was entitled to a hearing before an impartial tribunal to determine the nature of his termination and that his right to procedural due process was violated because of the denial of such a hearing.

The court of appeals first stated that once the dispute arose concerning whether Patterson quit or was discharged, Patterson was entitled to due process because of the potential deprivation of his property interest, namely, his interest in his employment as created and defined by Section 36.13, Stats. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The court then stated that at a minimum, a hearing was required, pursuant to the provisions of UWS Section 4.01, Wis.Admin.Code, to resolve this dispute. The court concluded that Patterson was denied due process in this case because the decision maker, Chancellor Fort, presented a "risk of bias in that procedure." Patterson v. University Board of Regents, 114 Wis.2d at 502, 339 N.W.2d 130. The court held that Patterson should have had a hearing before a decision maker other than the party who initially handled and was directly involved in the dispute. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). The court further concluded that the...