Stephens v. BOARD OF REGENTS OF U. OF M., C1-99-2109.

• Citation: 614 N.W.2d 764
• Decision Date: 25 July 2000
• Docket Number: No. C1-99-2109.,C1-99-2109.
• Court: Court of Appeals of Minnesota
• Parties: Georgina Y. STEPHENS, Relator, v. BOARD OF REGENTS OF the UNIVERSITY OF MINNESOTA, et al., Respondents.

614 N.W.2d 764

Georgina Y. STEPHENS, Relator, v. BOARD OF REGENTS OF the UNIVERSITY OF MINNESOTA, et al., Respondents.

No. C1-99-2109.

Court of Appeals of Minnesota.

July 25, 2000.

Review Denied September 26, 2000.¹

Karl A. Oliver, Oliver & Associates, PLC, Roseville, for relator.

Mark B. Rotenberg, General Counsel, University of Minnesota, Thomas J. Schumacher, Associate General Counsel, Minneapolis, for respondents.

Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and WILLIS, Judge.

OPINION

WILLIS, Judge.

Relator Georgina Y. Stephens seeks review by writ of certiorari of the decisions of the University of Minnesota to reassign her from her duties as associate vice president and treasurer and to not renew her contract with the university. We discharge the writ of certiorari.

FACTS

In 1997, relator Georgina Y. Stephens accepted a position as the University of Minnesota's "Associate Vice President for Finance and Operations and Treasurer." In September 1999, a former employee in Stephens's department alleged to the university that Stephens had engaged in misconduct in litigation to which Stephens was party before she was employed by the university. After a preliminary investigation, university officials met with Stephens on October 18, 1999, and asked her to comment on her conduct during that litigation and her failure to disclose that litigation in a residential-loan application she made in 1993. On October 20, the university told Stephens that she would be placed on paid administrative leave while it investigated further to determine whether, and to what extent, her conduct outside the university affected her ability and fitness to continue in her position.

On November 8, 1999, university officials interviewed Stephens as part of the university's continuing investigation. During this interview, Stephens acknowledged that (1) in 1993, she failed to disclose in a residential-loan application that she was a party to a lawsuit, despite the application's request for disclosure of such information; (2) in 1996, a Minnesota district court concluded that Stephens had lied in submissions to the court, and the court would no longer meet with her without a court reporter present; (3) the same district court later "specifically found" that Stephens's purported real-estate transactions at issue were a "fake and a sham";² (4) Stephens failed to file federal and state income-tax returns for "several years" before the university reached its decisions;³ and (5) in both her 1998 chapter 7 bankruptcy petition and her 1999 chapter 13 bankruptcy petition, Stephens failed to disclose her husband's bankruptcy filings despite the petitions' requests for disclosure of such information. Also on November 8, Stephens filed a grievance with the university grievance office but later suspended her grievance, pending the outcome of the university's investigation.

On November 10, 1999, the university associate general counsel responsible for the investigation concluded that the district court's findings in 1996, Stephens's failure to disclose required information in her bankruptcy petitions, and Stephens's failure to file her tax returns "each separately and together make her uninsurable" under the university's fidelity-and-crime insurance policy. In a November 20, 1999, letter from the university's president, Mark Yudof, the university notified Stephens that it had concluded that it would be "inappropriate" for her to return to her then-current position and duties at the university, but that the university would "honor the remainder of [her] contract either by reassigning [her] or by some other arrangement." She then "restarted" the grievance process by filing an amended grievance on November 21.

In a December 1, 1999, letter from President Yudof and Patricia Spence, chair of the university's board of regents, the university notified Stephens that her contract, which was to expire on June 30, 2000, would not be renewed. On December 3, 1999, the university notified Stephens that "[e]ffective immediately, you are relieved of all your current associate vice president and treasurer responsibilities." Stephens was assigned to other duties and was to maintain her salary level and title of associate vice president until the end of her contract and her title of treasurer until the board of regents removed the title.

A grievance officer, acting under the University of Minnesota Grievance Policy, scheduled a meeting between President Yudof and Stephens for December 15, 1999. But in a letter dated December 14, one day after Stephens petitioned this court for certiorari review of the university's decisions to reassign her and to not renew her contract, Stephens notified the university that she was withdrawing from the university's grievance process and cancelled the meeting with President Yudof.

Among the numerous claims Stephens includes in her petition for certiorari review, Stephens alleges that, through its decisions to reassign her and to not renew her contract, the university defamed her, retaliated against her because of her public statements regarding the university, violated her due-process rights, and discriminated against her because she had filed for bankruptcy. Stephens also alleges that the university breached her contract and violated its own policies in reaching the decisions challenged here, which she claims are arbitrary and capricious.

ISSUES

1. Are materials submitted to this court that were not considered by the university in reaching the decisions challenged in this certiorari appeal properly part of the appellate record?

2. Is Stephens's claim that the university discriminated against her, in violation of 11 U.S.C. § 525 (1994), because she filed for bankruptcy properly brought by writ of certiorari?

3. Is Stephens's challenge by writ of certiorari to the university's decisions that adversely affected her employment properly before this court despite her failure to exhaust the university's grievance process?

ANALYSIS

Stephens appeals by writ of certiorari the University of Minnesota's decisions to reassign her from the duties she had as associate vice president and treasurer and to not renew her contract. See generally Minn.Stat. § 606.01-.06 (1998) (providing for review by writ of certiorari); Shaw v. Board of Regents, 594 N.W.2d 187, 191 (Minn.App.1999) (holding that as a general rule, certiorari is "the only method available for [judicial] review of a university decision"), review denied (Minn. July 28, 1999). Our certiorari review of a decision of the university is limited to an inspection of the record developed by the university in reaching its decision and is necessarily confined to questions affecting the jurisdiction of the decision-maker, the regularity of the proceedings, and, regarding the merits of the dispute, whether the decision was "arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Ganguli v. University of Minnesota, 512 N.W.2d 918, 921 (Minn.App.1994) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992) (quotation omitted)).

I. Requests to Strike and to Supplement Record

Stephens asks this court to strike eight exhibits from the record provided by the university. The record in a certiorari appeal comprises the papers, exhibits, and transcripts of any testimony considered by the body whose decision is to be reviewed. See Minn. R. Civ.App. P. 110.01; Minn. R. Civ.App. P. 115.04 (providing that rule 110 should be applied to certiorari proceedings "[t]o the extent possible"); In re Demotion of Dillenberger, 486 N.W.2d 17, 21 (Minn. App.1992). This court may not base its decision on matters outside of the record on appeal. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn.1977). Thus, this court will grant a party's request to strike materials that are not part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993).

Stephens asks this court to strike exhibits 1 and 2, which are affidavits of university officials dated January 10, 2000. Because the university decisions challenged here were made no later than December 3, 1999, it is clear that these affidavits were not considered by the university in reaching those decisions. We therefore grant Stephens's request to strike the two affidavits.

Stephens also asks this court to strike exhibits 3 through 8 because, she alleges, (1) she had not seen these exhibits until the university submitted them as part of the record in response to this court's writ of certiorari; (2) there is no evidence that the exhibits were generated before the university reached its decisions; (3) there is no evidence that the university considered the exhibits; and (4) there is no indication that the submitted exhibits are complete reproductions of the documents considered. But it is of no legal significance that Stephens did not previously view the entirety of the record developed by the university in reaching its decisions, and Stephens provides no citation to legal authority or any legal analysis in support of her request to strike exhibits 3 through 8. We therefore deny her request. See Minn. R. Civ.App. P. 128.02, subd. 1(d) (providing that appellant's argument must be accompanied by citations to relevant authority and analysis); State, Dep't of Labor & Industry v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (declining to address issue not adequately briefed); Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn.App.1999) (declining to address issues unsupported by citation to relevant law or legal analysis).

In her reply brief, Stephens requests leave to supplement the record with additional documents, pursuant to Minn. R. Civ.App. P. 110.05. Rule 110.05 provides that this court, "on motion by a party or on its own initiative," may direct that the record be supplemented...