Smith v. State

• Decision Date: 26 June 1986
• Docket Number: No. 11118,11118
• Citation: 389 N.W.2d 808
• Parties: 33 Ed. Law Rep. 513 Elizabeth C. SMITH, Plaintiff and Appellant, v. STATE of North Dakota, d/b/a University of North Dakota, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 808

389 N.W.2d 808

33 Ed. Law Rep. 513

Elizabeth C. SMITH, Plaintiff and Appellant, v. STATE of North Dakota, d/b/a University of North Dakota,

Defendant and Appellee.

Civ. No. 11118.

Supreme Court of North Dakota.

June 26, 1986.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman.

McConn, Fisher & Thune, Grand Forks, for defendant and appellee; argued by Gary R. Thune.

LEVINE, Justice.

Elizabeth Smith appeals from a judgment dismissing on the merits her action for reinstatement of employment as a professor at the University of North Dakota (the University). We affirm.

Smith was hired as a professor in the Department of Sociology at the University for the 1982-83 school year. Smith received a second-year contract for the 1983-84 school year, but she received a nonrenewal notice from the University President on December 13, 1983, terminating her employment with the University at the conclusion of her second year. Smith was hired in a tenure track position, but at the time of her nonrenewal she was in a probationary nontenure status.

Smith filed this action alleging that her nonrenewal constituted a breach of her contractual rights, because the University did not comply with the procedures for nonrenewal as set forth in the Faculty Handbook and did not comply with the written evaluation procedures of the Sociology Department. The district court, concluding that the University substantially complied with the evaluation and nonrenewal procedures, determined that Smith's contract rights had not been violated and dismissed her action with prejudice. In essence, Smith has raised the following issues on appeal:

(1) Whether Smith's contractual rights were violated by the University's failure to comply with its evaluation and nonrenewal procedures;

(2) Whether the trial court erred in denying Smith's request to take pretrial discovery depositions of the members of the University Standing Committee on Faculty Rights; and

(3) Whether the trial court erred in concluding that the University nonrenewal procedures did not entitle Smith to a transcript of the deliberations of the Standing Committee on Faculty Rights.

Smith asserts that the University violated her contract by failing to comply with the nonrenewal procedures in the Faculty Handbook and with the evaluation procedures as set forth in the written guidelines of the Sociology Department. In Stensrud v. Mayville State College, 368 N.W.2d 519, 522 (N.D.1985), we stated that "substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled," and we endorsed the following rationale of the Utah Supreme Court in Piacitelli v. Southern Utah State College, 636 P.2d 1063, 1067 (Utah 1981):

" 'While exact conformance with the precise terms of the termination procedures is doubtless the least controversial course, so long as the substantial interests those procedures are designed to safeguard are in fact satisfied and protected, failure to conform to every technical detail of the termination procedure is not actionable.' "

Although the interpretation of regulations to ascertain their purpose is a question of law, the determination of whether conduct is in substantial compliance with the regulations is a question of fact. Stensrud, supra, 368 N.W.2d at 523.

Pursuant to the Sociology Department's written evaluation procedures, first-year nontenured faculty members are to be evaluated "at the end of the first semester of their first year" and again "at the end of their first year." Smith was evaluated by the Sociology Department Faculty Evaluation Committee during November 1982 of her first semester. Smith was again evaluated by the Committee in February 1983. Smith asserts that the second evaluation violated departmental procedures because it occurred several months before the end of the second semester. She asserts that she was thereby prejudiced because a later evaluation could have provided a more adequate notification of inadequacies in her job performance which she could have then attempted to correct.

The trial court found that the timing of the evaluations was conducted in substantial compliance with the Department's regulations and fulfilled the purpose of those regulations. The second evaluation identified areas of concern with regard to Smith's job performance, including mode of instruction, student retention, and course materials selection. As found by the trial court, the practical effect of giving Smith an early second evaluation "was to allow her additional time within which to correct those deficiencies." Smith was also given a third evaluation in November 1983, during the first semester of her second year. That evaluation stated that the concerns raised during the second evaluation had not been eliminated and that there continued to be problems with student retention, ineffective communication, and student dissatisfaction with course materials.

The obvious purpose of the evaluation procedure is to inform the faculty employee of her job performance and to provide the University with information relevant to deciding whether to retain or to nonrenew the employee. In reviewing the record, we have been unable to find any credible evidence that Smith was not apprised of her job performance because of the timing of the evaluations. Accordingly, we conclude that the trial court's finding that the second evaluation was in substantial compliance with and fulfilled the purposes of the evaluation procedures is not clearly erroneous.

Smith asserts that the Evaluation Committee did not utilize a fair and impartial cross section of...