Petroni v. Board of Regents

• Court: Arizona Court of Appeals
• Writing for the Court: RICHMOND; HOWARD, C. J., and HATHAWAY
• Citation: Petroni v. Board of Regents, 566 P.2d 1038, 115 Ariz. 562 (Ariz. App. 1977)
• Decision Date: 29 March 1977
• Docket Number: No. 2,CA-CIV,2
• Parties: Frank PETRONI and Lillian Petroni, husband and wife, Appellants and Cross Appellees, v. The BOARD OF REGENTS in the State of Arizona, a body corporate, Albert Weaver and Adeline Weaver, husband and wife, Robert L. Hamblin and "Roberta" Hamblin, husband and wife, Hermann K. Bleibtreu and Carol Bleibtreu, husband and wife, Philip Hammond and Sandra Hammond, husband and wife, Appellees and Cross Appellants. 2332.

Page 1038

566 P.2d 1038

115 Ariz. 562

Frank PETRONI and Lillian Petroni, husband and wife, Appellants and Cross Appellees, v. The BOARD OF REGENTS in the State of Arizona, a body corporate, Albert Weaver and Adeline Weaver, husband and wife, Robert L. Hamblin and "Roberta" Hamblin, husband and wife, Hermann K. Bleibtreu and Carol Bleibtreu, husband and wife, Philip Hammond and Sandra Hammond, husband and wife, Appellees and Cross Appellants.

No. 2 CA-CIV 2332.

Court of Appeals of Arizona, Division 2.

March 29, 1977.

Rehearing Denied May 26, 1977.

Review Denied June 14, 1977.

Franklin & Feulner by George Feulner, William Messing, Tucson, for appellants and cross appellees.

Fish, Briney, Duffield & Miller, P. C., by Richard Duffield, Bruce E. Babbitt, Atty. Gen., by Jack J. Rappeport, Sp. Asst. Atty. Gen., associated counsel, Tucson, for appellees and cross appellants.

OPINION

RICHMOND, Judge.

Appellant Frank Petroni was employed in 1970 for a term of one year as an assistant professor in the department of sociology at the University of Arizona, and served in that capacity through the academic year 1974-75 under a series of annual renewals of his contract. During 1973-74 he was denied promotion and tenure. Appellants thereafter commenced an action in four counts based on events surrounding the decision denying promotion and tenure. The first three counts sought damages on the various theories of defamation, deprivation of civil rights, and tortious interference with employment, respectively. The fourth count, added later by amendment, sought an order reinstating Petroni to his position at the university.

Named as defendants were the Board of Regents as governing body of the university; Albert Weaver, the executive vice president whose recommendation resulted in the denial of promotion and tenure; Hermann K. Bleibtreu, then dean of the College of Liberal Arts; Robert L. Hamblin, head of the department of sociology, and Philip Hammond, a member of the sociology department. ¹

At the conclusion of appellant's case, the trial court directed a verdict in favor of appellees on each of the first three counts for damages. Appellees then rested without offering any additional evidence, and the trial court directed a verdict in favor of appellants on the fourth count but, instead of ordering reinstatement, ordered "that the University of Arizona shall afford (Petroni) a due process hearing in accordance with the University's rules and regulations" on the reasons for denial of promotion and tenure. Petroni has appealed from the judgment on the directed verdict on the three damage counts and from so much of the remainder of the judgment as denies his request for reinstatement. We believe the trial court reached the right result, for reasons hereinafter discussed with respect to each individual count.

DEFAMATION

Petroni's claim for damages for defamation is based on the publication of an unsigned "minority report" prepared by Hamblin following a meeting of the tenured members of the department of sociology to consider Petroni's application for promotion and tenure. The report was forwarded to Bleibtreu and in turn to Weaver. The report was critical to Petroni's research, teaching, and scholarly articles, which had been published in what the report described as "second or third rate journals." Bleibtreu's negative recommendation to Weaver was strongly influenced by the report, which also played a significant role in Weaver's decision. Petroni had been told of a favorable vote on his application, and was unaware of the existence of any minority report before being advised of the final decision.

Prior to the meeting on Petroni's application, Hamblin by mailgram had requested the vote of two tenured department members who would not return from temporary leave in time to participate, and had forwarded to them reprints of Petroni's scholarly articles. He also had been informed that a member who would be leaving the department would abstain from voting and not attend the meeting. Of the fourteen members who attended, eleven voted in favor of the application, one abstained because of a question about the criteria to be applied, and Hammond voted against. Hamblin did not vote at the meeting but told the others that as head of the department he would recommend in accordance with the vote that Petroni be promoted and granted tenure. Hamblin's memorandum to Bleibtreu, dated approximately one month after the meeting, in material part read as follows "This is to recommend the promotion of Frank A. Petroni to an associate professorship with tenure in the Department of Sociology. There was a meeting of the tenured faculty who had read Professor Petroni's work and who had looked over his teaching evaluations and read the letters of recommendation. After some discussion a vote was taken 11 for, 4 against and 2 abstentions. One of the abstentions was by Robert Nisbet who is leaving.

"Since the vote was not unanimous I am submitting herewith majority and minority reports for your consideration. Also enclosed please find Frank Petroni's vita and five letters of evaluation from outside referees, professors who are the leading people in Petroni's specialities.

"In instances such as these I would prefer to simply have my vote counted as a faculty member rather than a department head. Hence, it is included in the above ennumeration (sic)."

Hamblin testified that the four negative votes reported in his memorandum included, in addition to Hammond's, his own, which he did not cast at the meeting, and those of the two absent department members, from whom he received letters critical of Petroni's published work three days after the meeting. He testified that he felt those four votes comprised an "appreciably large" minority, requiring a minority report, and that the report accurately reflected the views of the four.

The trial court in directing a verdict on the first count relied on the reasoning of the U. S. Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), adopted by Division One of this court in Long v. Mertz, 2 Ariz.App. 215, 407 P.2d 404 (1965), extending the defense of absolute privilege to a claim for defamation against a public officer for making a statement in the course of official duties which he is directed or authorized specifically by law to do. Appellants, relying on the language in this court's opinion in Martinez v. Cardwell, 25 Ariz.App. 253, 542 P.2d 1133 (1975), argue that any privilege at best is qualified, and thus available only in the absence of "actual malice," defined as personal spite, hatred, or ill will. They contend there was substantial evidence from which the jury could have found such malice in Hamblin's handling of Petroni's application, together with their previous relationship, which included "strenuous disagreements" and "heated arguments" while both were members of the department's executive committee, from which Petroni had resigned more than a year prior to the recommendations on promotion and tenure.

Although the language in Martinez on which appellants rely is unequivocal, it was gratuitous, inasmuch as there was no evidence of actual malice in that case, and therefore dictum. In any event, a reconsideration of the question under the circumstances of the instant case has convinced us to abandon the position espoused in Martinez, and adopt the rule of Long v. Mertz, supra. ²

Decisions on the granting of academic tenure necessarily have a long range effect on the character of the state's educational institutions. If the officials responsible for recommending whether a permanent position should be granted are exposed each time they make a negative evaluation to the possibility of a jury trial on their motives and the truthfulness of their statements or the accuracy of their opinions, the risk inherent in all but the most extreme cases would tend to deprive the governing body of the candor essential to an accurate appraisal of the applicant's qualifications. It is not for the protection of the public officer but for the protection of the public that absolute immunity is recognized in these circumstances. See Hughes v. Bizzell, 189 Okl. 472, 117 P.2d 763 (1941).

Further, we disagree that appellants introduced evidence from which the jury could have found that Hamblin acted out of personal spite, hatred, or ill will. Appellants' evidence, like the majority vote at the meeting on Petroni's application for promotion and tenure, might have led the jury to conclude that the statements in the report were falsely demeaning, hence legally defamatory, but even a qualified privilege would have required a directed verdict where the motivation for the statements was professional rather than personal animosity. Indeed, in introducing evidence of Hamblin's authoritarian handling of departmental affairs, appellants established that he treated other members exactly the same as Petroni. After Hamblin became head of the department in 1971 there were few promotions, and tenure was granted primarily to eminent sociologists recruited from the faculties of other universities. No evidence whatsoever was introduced as to the...