Stastny v. Board of Trustees of Central Washington University

• Citation: 647 P.2d 496,32 Wn.App. 239
• Decision Date: 17 June 1982
• Docket Number: No. 4759-III-8,4759-III-8
• Parties: , 5 Ed. Law Rep. 256 Charles I. STASTNY, Appellant, v. The BOARD OF TRUSTEES OF CENTRAL WASHINGTON UNIVERSITY, Respondent. Panel 4
• Court: Court of Appeals of Washington

Page 239

32 Wn.App. 239

647 P.2d 496, 5 Ed. Law Rep. 256

Charles I. STASTNY, Appellant, v. The BOARD OF TRUSTEES OF CENTRAL WASHINGTON UNIVERSITY, Respondent.

No. 4759-III-8.

Court of Appeals of Washington, Division 3,

Panel 4.

June 17, 1982.

J. Kathleen Learned, Schroeter, Goldmark & Bender, Seattle, for appellant.

Kenneth O. Eikenberry, Atty. Gen., Owen F. Clarke, Jr., Asst. Atty. Gen., Ellensburg, for respondent.

GREEN, Judge.

Following a hearing, the Board of Trustees of Central Washington University terminated the employment of Associate Professor Charles I. Stastny for misconduct surrounding an unapproved absence. The Board's order was affirmed on review by the superior court. Professor Stastny appeals.

He questions the Board's findings and its conclusion to terminate him and raises constitutional questions concerning academic freedom, equal protection, due process, and vagueness and overbreadth of the University Faculty Code.

The Board, in substance, found the following facts:

In 1965 Charles Stastny was hired by Central Washington University, a state university, as an assistant professor in the Political Science Department. In 1963 he was granted tenure and promoted to the rank of associate professor. Between 1970 and 1978, he took the following approved absences from his teaching duties: (1) winter and spring quarters of academic year 1969-70, on leave without pay; (2) winter quarter, 1971-72 academic year, on leave without pay while teaching at Elmira College; (3) the entire 1973-74 academic year, sabbatical leave; (4) on approved leave while attending two meetings, one in Toronto, the other in Chicago, in November 1975; (5) February of 1976 through spring quarter of the academic year, on medical and then disability leave for convalescence; ¹ (6) he requested to be excused from his 1978 summer teaching contract, shortly before the session commenced, to receive a grant to work at Harvard University. Approval was granted with "prejudice."

Professor Stastny also had several unapproved leaves of absence: (1) in January 1973 he returned 2 days late from a trip to India; (2) in November 1974 he returned late from a trip to Mexico and during the same month failed to return from Chicago at the time specified; (3) in November 1975 he cancelled a class without authorization; (4) in January 1977 he was 1 day late in starting the quarter and arranged by telephone for Professor Odell to handle his registration duties; (5) in October 1978 he cancelled a class without authorization and absented himself from the campus.

The Board found that because of the unapproved absences, Professor Stastny had been disciplined by docking his pay and his departmental colleagues voted to censure him. The censure was later removed from his file. Dean Williams also counseled him about his tardiness.

As a prelude to the incident precipitating his dismissal, the record indicates Professor Stastny's classes for the summer of 1979 had been canceled to allow him to be at Harvard University to work on a book he was writing in collaboration with another person. He also made inquiry about a possible absence during spring quarter 1979 to attend a Canadian Studies Faculty Enrichment Program in Toronto.

On November 15, 1978, Professor Stastny informed Dean Williams and Department Chairman Yee by letter he was to receive an invitation to deliver a lecture at a seminar in Jerusalem on January 8 or 9, 1979, and indicated the method of class coverage in his absence. ² On December 5 Professor Stastny formally requested approval of this absence for 4 class days. The record shows he would miss eight classes plus advisory duties during registration of students at the beginning of winter quarter. On December 6 Chairman Yee authorized Professor Stastny to be absent from January 2 until noon on January 8, thus permitting an absence from two days registration and 2 class days. On December 7, Professor Stastny responded stating he was "locked in" to his travel plans and could not change them; he again requested approval of his proposed absence from January 2 to January 9 at 10 a. m.

The dispute was then referred to Dean Williams who reviewed the absence history of Professor Stastny and on December 8 informed him in writing that his request to return late to his campus obligations was denied. On December 18 Professor Stastny requested University President Garrity to conciliate the matter. On December 20 after a discussion between President Garrity, Vice-President Harrington and himself and with the president's approval, Dean Williams notified Professor Stastny in writing that the denial of his request was affirmed and directed him to fulfill his duties as scheduled for winter quarter 1979. The letter also stated, "If you choose to abridge or ignore this directive, I shall institute appropriate disciplinary measures."

On December 22 Professor Stastny again requested intervention by President Garrity and indicated his intention to institute grievance procedures if his planned absence was not approved. Before receiving a response, on December 25 he left for Israel. By letter to Dean Williams, datelined Jerusalem, he confirmed his presence in Jerusalem and stated he would proceed on his own plan of returning to the university the night of January 9. On January 4, 1979, President Garrity wrote Professor Stastny requesting he meet with Dean Williams, Chairman Yee, Vice-President Harrington and with him.

Professor Stastny returned January 10. Meanwhile, Chairman Yee, with approval of Dean Williams, had canceled the Professor's scheduled classes for winter quarter. On January 15 President Garrity, Dean Williams, Chairman Yee and Vice-President Harrington met with Professor Stastny and offered him the opportunity to explain his unauthorized absence. On January 25 President Garrity informed Professor Stastny he would recommend to the Board of Trustees that the professor be dismissed from the faculty for insubordination, grievous and willful violation of published university rules, and gross misconduct.

The Board also found that the Political Science Department consists of 3.5 full-time professors, and as a result, it is difficult to offer a wide variety of political science courses. There had been an attempt to upgrade the courses offered, and this has been hampered to a degree by the absences of Professor Stastny. Further, it was found the professor had been absent in either an approved or unapproved status more than other professors in the same department. Additionally, the first several days of each quarter were found critical for appropriately conducting a class for the remainder of the quarter. The requested date for Professor Stastny's return from Israel would have been after the date students could add or drop his class, the inference being the students' decision would have to be made without Professor Stastny's presence. The Board noted that Professor Stastny's relationship with his colleagues in his department was strained over the years, and they all recommended his discharge.

The Board concluded it had been shown by clear and convincing evidence that Professor Stastny had been "insubordinate" by his unapproved absence after being forewarned that disciplinary steps would be taken; he had willfully and deliberately violated published institutional and related board rules and regulations which had a harmful impact on the department and its students, particularly in light of the limited resources of that department; and his misconduct evidences a substantial disregard of the interests of the university, students and faculty colleagues. The Board also stated the professor's prior approved absences should only be considered in determining whether the administration was fair in its disapproval of the proposed absence. It concluded the denial of the approved absence was not arbitrary, discriminatory or unreasonable nor was there any violation of the constitutional right to free speech or academic freedom in the disapproval of Professor Stastny's request. Accordingly, the Board ordered termination of his employment.

Since the university is an institution of higher education, RCW 28B.19.020(1), our review is governed by the State Higher Education Administrative Procedure Act, RCW 28B.19.150(6), the provisions of which are identical to the Administrative Procedure Act, RCW 34.04.130. The scope of

our review of administrative decisions is on the record of the administrative tribunal itself, not of the superior court.... Substitution of our judgment for that of the administrative agency in factual matters is not authorized by the APA, and by reasoning of Hesperian Orchards (Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959) ), we will not try facts de novo on review.

Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-25, 646 P.2d 113 (1982).

First, Professor Stastny contends a professor can only be dismissed for adequate cause related directly and substantially to his performance as a teacher, and here the Board of Trustees did not find the conduct which constituted the offense with which Professor Stastny was charged had a substantial and direct adverse effect on his performance.

A review of the Faculty Code reveals two sections pertinent to Professor Stastny's dismissal. Sections 3.72(A) and 3.90(A). ³ Section 3.72(A) provides a tenured faculty member may be terminated "only for sufficient cause" and specifies insubordination, gross misconduct, willful violation of rules and regulations as sufficient causes. Section 3.90(A)(1) provides: "Adequate cause for dismissal shall be related directly and substantially to the fitness and performance of the faculty member in his professional capacity." Thus, whenever a professor is dismissed, a material factual issue is presented as to whether the professor's conduct affected his fitness and performance as a teacher. See Hoagland v. Mt. Vernon Sch. Dist....