Pfeiffer v. Board of Regents of University of Wisconsin System, 81-374

• Decision Date: 05 January 1983
• Docket Number: No. 81-374,81-374
• Citation: 110 Wis.2d 146,328 N.W.2d 279
• Parties: , 8 Ed. Law Rep. 490 Ed PFEIFFER, Petitioner-Respondent, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM; Edward Weidner, Chancellor of the University of Wisconsin-Green Bay; William Kuepper, Vice-Chancellor of the University of Wisconsin-Green Bay; University of Wisconsin-Green Bay University Committee, Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 279

328 N.W.2d 279

110 Wis.2d 146, 8 Ed. Law Rep. 490

Ed PFEIFFER, Petitioner-Respondent, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM Edward Weidner, Chancellor of the University of Wisconsin-Green Bay; William Kuepper, Vice-Chancellor of the University of Wisconsin-Green Bay; University of Wisconsin-Green Bay University Committee, Appellants-Petitioners.

No. 81-374.

Supreme Court of Wisconsin.

Argued Nov. 29, 1982.

Decided Jan. 5, 1983.

Leroy L. Dalton, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for appellants-petitioners.

Lee Cullen and Cullen & Weston, Madison, for petitioner-respondent.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals, 106 Wis.2d 770, 318 N.W.2d 25, which modified and, as modified, affirmed an order of Brown County Circuit Court Judge Richard G. Greenwood. Judge Greenwood ruled that a contested case hearing is required on the decision of the University of Wisconsin-Green Bay (UWGB) to deny tenure to the respondent, Ed Pfeiffer.

Pfeiffer had a seven-year probationary appointment as an assistant professor at the UWGB. During the sixth year of his appointment, Pfeiffer became a candidate for tenure. Before a person is granted tenure, that person must receive the recommendation of several University governing bodies. The UWGB Executive Committee of the Professional Program in Education voted unanimously to recommend Pfeiffer for promotion to the tenured position of associate professor on December 5, 1978. On February 22, 1979, the Personnel Council at UWGB also unanimously recommended that Pfeiffer be granted tenure. Pfeiffer's bid for tenure was stopped, however, when George Rupp, Dean for Academic Affairs, declined to recommend his promotion. Because a probationary appointment may not exceed seven years ¹ and a faculty member with two or more years of continuous service must be given notice at least twelve months prior to termination, ² Dean Rupp's decision necessarily amounted to a nonrenewal of Pfeiffer's appointment. On May 10, 1979, Pfeiffer was notified that his appointment would terminate at the end of the 1979-80 academic year.

Pfeiffer appealed Dean Rupp's decision to the University Committee pursuant to the UWGB Personnel Procedures for Faculty [hereinafter cited as Personnel Procedures ], Section J. ³ He alleged that in making the tenure decision Dean Rupp did not properly consider his qualifications and made completely unfounded and arbitrary assumptions of fact. On October 19, 1979, the University Committee issued a Decision and Report holding that the record did not support Pfeiffer's charges and that a remand of the matter to the Vice-Chancellor ⁴ for reconsideration would serve no useful purpose. Pfeiffer took no further steps to overturn the UWGB's decision to deny him tenure during the sixth year of his probationary appointment.

On December 17, 1979, during the seventh year of Pfeiffer's appointment, the Executive Committee of the Professional Program in Education again unanimously recommended that Pfeiffer be granted tenure. Vice-Chancellor Kuepper, however, refused to forward the Executive Committee's recommendation to the Personnel Council for consideration. In a memorandum dated December 28, 1979, Kuepper stated: "Because the tenure review process ran its course during the sixth year of Dr. Pfeiffer's probationary period, I see no justification for initiating it again in the seventh year."

On April 16, 1980, Pfeiffer filed a petition for review in circuit court pursuant to Chapter 227, Stats. The circuit court concluded that the UWGB's decisions to deny Pfeiffer tenure in his sixth and seventh years were reviewable under Chapter 227. Accordingly, the court remanded the matter to the UWGB to hold a contested case hearing.

The court of appeals modified and, as modified, affirmed the circuit court's decision. The court found that UWGB's denial of tenure in Pfeiffer's sixth year was not reviewable because review proceedings had not been timely commenced. The court held, however, that Pfeiffer was entitled to tenure review in his seventh year, and the contested case provisions of Chapter 227 applied to the UWGB's tenure decision.

The issue presented on this review is whether Pfeiffer had a right to tenure review during the seventh year of his probationary appointment. ⁵

The right to tenure review at UWGB is conferred and affected by certain statutes, administrative regulations, and rules promulgated by the University. Sec. 36.13(1)(a) and (b), Stats., defines tenure appointment and probationary appointment as follows:

"(a) 'Tenure appointment' means an appointment for an unlimited period granted to a ranked faculty member by the board upon the affirmative recommendation of the appropriate chancellor and academic department or its functional equivalent within an institution.

"(b) 'Probationary appointment' means an appointment by the board held by a faculty member during the period which may precede a decision on a tenure appointment."

In order to establish procedural and substantive guidelines for faculty appointments including tenure review, sec. 36.13(3), Stats., provides:

"Rules. The board and its several faculties after consultation with appropriate students shall adopt rules for tenure and probationary appointments, for the review of faculty performance and for the nonretention and dismissal of faculty members. Such rules shall be adopted under ch. 227."

In compliance with sec. 36.13(3), Stats., the University of Wisconsin Board of Regents has adopted Chapter UWS 3, Wis.Adm.Code. Secs. UWS 3.06(c) ⁶ and UWS 3.07(1)(a), ⁷ Wis.Adm.Code, require each institution to establish rules governing the procedures for renewal and nonrenewal of probationary appointments and for recommending tenure. In accordance with Chapter UWS 3, the UWGB faculty and chancellor adopted Personnel Procedures and UWGB Chapter 51 entitled, Faculty Appointments and Temporary Teaching Appointments. These rules, along with applicable statutes and administrative code provisions, govern the question of whether Pfeiffer has a right to tenure review during the seventh year of his probationary appointment.

Following Vice-Chancellor Kuepper's decision not to submit Pfeiffer's materials to the Personnel Council for tenure consideration, the Executive Committee of the Professional Program in Education asked the University Committee to interpret sections B.2, D.1, and D.2 of the UWGB Personnel Procedures. The Executive Committee apparently believed that Vice-Chancellor Kuepper violated these provisions. Sec. B.2 states:

"A faculty member may be considered for promotion in any year of his or her appointment if so requested by two members of his or her concentration executive committee, concentration professorial committee (or concentration advisory committee). Such a consideration must be with the knowledge and consent of the faculty member." ⁸

Under section D.1 ⁹ all recommendations on promotion and tenure are to be initiated by the concentration executive committee. When the executive committee's recommendation is positive, section D.2 ¹⁰ provides that the Dean for Academic Affairs (now the Vice-Chancellor) "shall forward the recommendation and documentation to the Personnel Council for advice."

The University Committee responded to the Executive Committee's request in a memorandum dated March 18, 1980. The memorandum which supported Vice-Chancellor Kuepper's actions reads in pertinent part:

"It is the judgment of the University Committee that the specific procedures spelled out for conduct of reviews for retention or promotion, for reconsideration in the event of negative decisions regarding renewal and/or tenure, and for appeal of nonrenewal decisions do not apply to a faculty member in the terminal year of his or her appointment. The faculty member in a terminal year of his or her appointment may be considered for promotion but there is nothing in the UWGB Personnel Procedures which obligates a reviewing body to honor such a request or to follow specific procedures in acting on the request since a decision has already been made in compliance with the Personnel Procedures." ¹¹ (Footnote omitted, Emphasis in original.)

The UWGB reiterates this interpretation of its own rules in its brief to this court. We believe that the University Committee's interpretation is correct.

This court has long held that "the interpretation by an administrative agency of its own regulation is entitled to controlling weight unless inconsistent with the language of the regulation or clearly erroneous." ¹² Beal v. First Federal Savings & Loan Asso. of Madison, 90 Wis.2d 171, 183, 279 N.W.2d 693 (1979); Vonasek v. Hirsch and Stevens, Inc., 65 Wis.2d 1, 7, 221 N.W.2d 815 (1974); Employers Mutual Liability Insurance Co. v. ILHR Dept., 62 Wis.2d 327, 334, 214 N.W.2d 587 (1974); Josam Mfg. Co. v. State Board of Health, 26 Wis.2d 587, 601, 133 N.W.2d 301 (1965). This rule of construction accords with the principle that "a construction which fosters the purpose of the rule is to be sought and is favored over a construction which will defeat the manifest object of the rule." McGarrity v. Welch Plumbing Co., 104 Wis.2d 414, 425, 312 N.W.2d 37 (1981). An administrative agency knows the specific purposes of the regulations it has promulgated. Moreover, an agency has a certain expertise in the area it is called upon to regulate. Thus we believe that an agency is in the best position to interpret its own regulations in accordance with their underlying purposes. For this reason, in construing such regulations, we ordinarily defer to the adopting agency's interpretation.

The court of appeals, however, rejected the UWGB's interpretation of its own rules. The appellate court noted that Personnel Procedure B provides that a faculty member may be considered for tenure in any year of his or her probationary appointment. Since...