Worzella v. Board of Regents of Ed. of State

• Decision Date: 10 December 1958
• Docket Number: No. 9722-,9722-
• Citation: 93 N.W.2d 411,77 S.D. 447
• Parties: W. W. WORZELLA, Plaintiff and Appellant, v. The BOARD OF REGENTS OF EDUCATION OF THE STATE of South Dakota, and Harry J. Eggen, Frank Gellerman, Eric Heidepriem, Byron Helgerson, Lem Overpeck, Maylou Amunson, Dona S. Brown, as Members of said Board, and H. M. Crothers, Acting President of South Dakota State College, Defendants and Respondents. a.
• Court: South Dakota Supreme Court

Page 411

93 N.W.2d 411

77 S.D. 447

W. W. WORZELLA, Plaintiff and Appellant, v. The BOARD OF REGENTS OF EDUCATION OF THE STATE of South

Dakota, and Harry J. Eggen, Frank Gellerman, Eric

Heidepriem, Byron Helgerson, Lem Overpeck, Maylou Amunson,

Dona S. Brown, as Members of said Board, and H. M. Crothers,

Acting President of South Dakota State College, Defendants

and Respondents.

No. 9722-a.

Supreme Court of South Dakota.

Dec. 10, 1958.

M. T. Woods, Sioux Falls, for plaintiff and appellant.

Phil Saunders, Atty. Gen., George Wuest, Val Higgins, Asst. Attys. Gen., for defendants and respondents.

HANSON, Judge.

The petitioner, Dr. W. W. Worzella, seeks a writ of mandamus compelling the State Board of Regents to reinstate him as professor of agronomy or as head of the agronomy department at South Dakota State College. The circuit court refused relief and he appeals.

Dr. Worzella was first employed as a professor of agronomy at State College on October 1, 1943. Thereafter he served continuously on that faculty until discharged by the Board of Regents on January 11, 1958. He was dismissed after an extensive investigation into the personnel and administrative affairs of State College by the Board. After the investigation the Board prepared a written report. With reference to Dr. Worzella the Board found he '* * * wittingly or unwittingly, permitted himself and his name to become involved in serious personal disputes and activities in the many years above referred to, and has * * * been guilty of insubordination; that by virtue of the controversial character he has become, it would not be to the best interests of South Dakota State College for him to be retained.' The Board concluded 'the retention of Dr. W. W. Worzella as head of the Department of Agronomy is incompatible to the best interest and welfare of State College, its students, and the State of South Dakota as a whole, and that he should be summarily dismissed and relieved from all further duties under his current contract; his compensation, however, to continue as therein provided during the remainder of this fiscal year.' His summary dismissal followed.

Dr. Worzella contends he has permanent tenure under a tenure policy approved by the Board of Regents and could be dismissed only in compliance with its substantive and procedural provisions. It is conceded that no complaint was filed, notice given, or hearing held pursuant thereto. However, the Board maintains the tenure policy did not, and could not, abrogate its constitutional and statutory power to dismiss all officers, instructors, and employees under its control.

The advisability of establishing and the merits of academic tenure are not involved. We are concerned only with the validity and enforceability of the tenure policy approved for State College by the Board of Regents.

The exact meaning and intent of this so-called tenure policy eludes us. Its vaporous objectives, purposes, and procedures are lost in a fog of nebulous verbiage. We gather from it, in general, that a faculty member who is retained on the staff at State College for over three years gains permanent tenure. He cannot thereafter be divested of tenure unless a complaint against him is filed by the president of the college. He is then entitled to have notice of hearing, and a hearing before a Tenure Committee consisting of seven faculty members. It further provides that 'since the final decision must be made by the President' it is desirable that he sit with the Tenure Committee during the formal hearing as an auditor. At the conclusion of the hearing the committee makes its recommendations to the president. The president must then decide whether to recommend the dismissal of the accused faculty member to the Board of Regents. The faculty member whose dismissal is recommended may appeal for a hearing before the Board. The concluding paragraph states that the tenure policy is based 'upon good faith between the college administration and the individual faculty member'.

The policy statement is silent as to the Board of Regents' authority. By inference we may assume the Board would have power to discharge a faculty member having tenure when recommended by the Tenure Committee and President. Otherwise the Board would have no authority to act. Apparently the Board could not discharge or remove a faculty member with tenure for any reason if the President failed or refused to file a complaint, or if the Tenure Committee and President failed or refused to recommend dismissal. We believe this to be an unlawful abdication of the Board's exclusive prerogative and power.

The Board of Regents is a constitutionally created administrative body charged with the control of all institutions of higher learning 'under such rules and restrictions...