University of Alaska v. Geistauts

• Decision Date: 17 June 1983
• Docket Number: 6771,Nos. 6749,s. 6749
• Citation: 666 P.2d 424
• Parties: 12 Ed. Law Rep. 969 UNIVERSITY OF ALASKA and Edward B. Rasmuson, Jeffry Cook, Don Abel, Jr., Herbert Lang, Mildred H. Banfield, Tim Burgess, Hugh B. Fate, Jr., Margaret J. Hall, Sam Kito, Jr., Thomas Miklautsch, and John Shively, Regents of the University of Alaska, in their Official Capacity, Appellants, Cross-Appellees, v. George A. GEISTAUTS, Appellee, Cross-Appellant.
• Court: Alaska Supreme Court

Page 424

666 P.2d 424

12 Ed. Law Rep. 969

UNIVERSITY OF ALASKA and Edward B. Rasmuson, Jeffry Cook Don Abel, Jr., Herbert Lang, Mildred H. Banfield, Tim Burgess, Hugh B. Fate, Jr., Margaret J. Hall, Sam Kito, Jr. Thomas Miklautsch, and John Shively, Regents of the University of Alaska, in their Official Capacity Appellants, Cross-Appellees, v. George A. GEISTAUTS, Appellee, Cross-Appellant.

Nos. 6749, 6771.

Supreme Court of Alaska.

June 17, 1983.

Terrance A. Turner, Owens & Turner, P.C., Anchorage, for appellants, cross-appellees.

John B. Patterson, Strachan, Kelly & Patterson, Anchorage, for appellee, cross-appellant.

Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ.

OPINION

RABINOWITZ, Justice.

The University of Alaska brings this appeal from the superior court's grant of summary judgment in favor of Geistauts. The superior court ruled that the actions of the University of Alaska tenure committee with respect to Geistauts' application for tenure in 1979-80 were void because the committee failed to comply with the requirements of the Alaska Public Meetings Act (PMA), AS 44.62.310-.312. The superior court ordered that the same committee be reconvened to consider Geistauts' application, this time in compliance with PMA dictates.

The University argues on appeal that the PMA was not intended to regulate University tenure committee meetings. It first contends that the statute applies only to the Board of Regents of the University, and that, even if it does apply broadly to the University system, the tenure committee meetings in this case fell within certain statutory exceptions to the open meeting requirements.

Geistauts, on cross-appeal, asserts that the superior court erred in fashioning a remedy. The superior court ordered that the original tenure committee that considered Geistauts' application be reconvened to make a new recommendation. Geistauts argues that he is entitled to a de novo consideration by a new committee, as if the 1979-80 proceedings had never been instituted. He further claims that he is entitled to the full benefits of University employment until the time the new decision is reached, because he has not been properly terminated by the University.

George Geistauts had been a member of the faculty of the University of Alaska at Anchorage for five years when he elected to stand for tenure in the academic year of 1979-80. Under University regulations a faculty member is generally considered for tenure in his seventh year of service, but candidates with prior experience at another university may elect to stand after their fifth year. Geistauts had taught for four years at Washington State University, so the option to stand was available to him in 1979-80. He chose to do so rather than wait an additional year.

The tenure procedure began with an evaluation of Geistauts' tenure file by the local tenure committee for the University of Alaska at Anchorage. The function of the tenure committee was to examine Geistauts' qualifications based upon his file, and to make a recommendation to the Chancellor of the University regarding the candidate's application. The tenure committee met a number of times in closed session to consider Geistauts' application. The committee notified neither Geistauts nor the public of the meetings. Furthermore, the committee did not inform Geistauts that he had the option of requesting that the meetings be open.

Following consideration of Geistauts' file, the tenure committee recommended to the Chancellor that the application be denied. In accordance with University regulations, the Chancellor met with the tenure committee and formed his own recommendation regarding Geistauts' application. The Chancellor's meeting with the committee was not public, and no notice of it was given to Geistauts. Again, Geistauts was not made aware of any right on his part to request that the meeting take place openly.

The Chancellor recommended to the President of the University, who held ultimate authority over the grant or denial of tenure, that Geistauts' application be denied. The President subsequently informed Geistauts that he would not be granted tenure.

Geistauts challenged the adverse decision through University grievance procedures. The University Grievance Committee recommended to the President that Geistauts' application be reconsidered. Accordingly, the President returned Geistauts' file to the tenure committee for a second evaluation. The committee reconvened under protest and met in closed session, with no notice to Geistauts. Upon reconsideration, the committee again recommended that Geistauts not be granted tenure, this time unanimously. Once more, the Chancellor's recommendation was for denial. For a second time, the President informed Geistauts of his decision to deny tenure.

Following the second denial, Geistauts brought suit in the superior court. By stipulation of the parties, Judge Johnstone dismissed all of Geistauts' claims save those based upon the public meeting statute. On that count the superior court granted summary judgment in favor of Geistauts. The superior court ruled that the meetings of the tenure committee had taken place in violation of AS 44.62.310 and AS 14.40.160 because they were not made open to the public. ¹ All actions taken by the committee were therefore deemed void, and the court ordered that the committee be reconstituted as it existed in 1979-80 to consider for a third time Geistauts' credentials. The court, however, did not order that the meetings automatically take place in public. Rather, it required that Geistauts be given an opportunity to request public meetings under AS 44.62.310(c)(2). In the event that Geistauts made such a request, the court ordered that the meetings should be opened as required by AS 44.62.310(a). This appeal followed.

I. Is the University of Alaska Subject to the Public Meetings Act?

The first issue raised by this appeal is whether the local tenure committee which met to consider Geistauts' application is one of the governmental units subject to the open meeting requirements of AS 44.62.310. ² We have concluded that the local tenure committee of the University of Alaska comes within the ambit of the public meetings statute and thus affirm the superior court's ruling on this question. ³

AS 44.62.310(a) contains a broad description of all the entities covered by the statute. Under the literal terms of the statute, the University of Alaska's local tenure committee can be considered either a subordinate unit of the state, or an advisory board, or council, supported in whole or in part by public money. ⁴ In reaching our conclusion that the clear and unambiguous language of AS 44.62.310 encompasses meetings of the University of Alaska's local tenure committee we find the University's arguments based upon legislative history and policy reasons unpersuasive. ⁵

II. Was the Failure of the University of Alaska's Local Tenure Committee to Consider Geistauts' Tenure Application at Open Public Meetings Harmless Error?

The University bases its harmless error argument on Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982). In Hammond one of the issues addressed by this court concerned the effect of AS 44.62.310(f) which provides: "Action taken contrary to [AS 44.62.310] is void."

In Hammond we held that although the Agency Advisory Committee on Leasing (AACL) and the Joint Federal/State Beaufort Sea Task Force had violated the notice provision of AS 44.62.310(e), the violation was harmless. 645 P.2d at 764-66. We concluded that the Commissioner of the Department of Natural Resources reached his decision independently of the AACL and Task Force recommendations, and received "substantial public input" from private sources and other state agencies. Id. at 765-66. We thus reasoned that there was insufficient ground upon which to declare the Commissioner's decision void under AS 44.62.310(f). Hammond presented a compelling fact situation in which a relatively insignificant violation of AS 44.62.310 was coupled with overwhelming prejudice which would have resulted from a conclusion that the five-year procedure leading up to the lease sale was void.

We reject the University's harmless error argument for the following reasons. First, AS 44.62.310(a) states that its provisions pertaining to public meetings shall apply to governmental units whether "advisory or otherwise." This language mandates rejection of a construction of AS 44.62.310(a) which would limit its scope to decision-making bodies only. ⁶ Second, in our view, the Hammond "harmless violation" doctrine should be invoked only in very limited circumstances. Third, assuming there is merit to the broad proposition that discussions remote to the actual decision might be considered outside the reach of the public meetings statute, we think the doctrine inapplicable in this case. It is apparent that tenure committee recommendations do play a significant role in final tenure decisions.

III. Is the AS 44.62.310(c)(2) Exception to the Public Meetings Act Applicable?

AS 44.62.310(c)(2) provides that closed executive sessions may be held to discuss "subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion." We hold that AS 44.62.310(c)(2) is applicable to tenure committee meetings. A tenure committee meeting is likely to focus on perceived deficiencies in the candidate's qualifications. Tenure committee members may raise concerns for the purpose of discussion which would damage the applicant's reputation if aired publicly. ⁷ In City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1325-26 (Alaska 1982), we held that the exception set out in AS 44.62.310(c)(2) permitted the Kenai City Council to meet in closed session to review the comparative qualifications of applicants for the job of city manager. We noted that "a discussion of personal characteristics and habits may...