Zahavy v. University of Minnesota

• Court: Minnesota Court of Appeals
• Writing for the Court: SCHUMACHER
• Citation: Zahavy v. University of Minnesota, 544 N.W.2d 32 (Minn. App. 1996)
• Decision Date: 05 March 1996
• Docket Number: No. C5-95-984,C5-95-984
• Parties: 107 Ed. Law Rep. 285 Tzvee ZAHAVY, Relator, v. UNIVERSITY OF MINNESOTA, Respondent.

Page 32

544 N.W.2d 32

107 Ed. Law Rep. 285

Tzvee ZAHAVY, Relator, v. UNIVERSITY OF MINNESOTA, Respondent.

No. C5-95-984.

Court of Appeals of Minnesota.

March 5, 1996.

Syllabus by the Court

1. Unprofessional conduct may impair a university professor's "fitness in a professional capacity" even though the professor's teaching, scholarship, and service abilities have not necessarily been impaired by the unprofessional conduct.

2. The University of Minnesota's Senate Judicial Committee acts in a de novo, rather than an appellate, capacity when determining whether a tenured professor's conduct warrants dismissal.

3. The University's Senate Judicial Committee may limit discovery if it finds that the requested discovery would be unduly burdensome in light of the issues and the parties' needs. On appeal, this court reviews based on an abuse of discretion standard.

4. The University's Board of Regents is not bound by the open meeting law when exercising quasi-judicial functions involving disciplinary proceedings.

5. A breach of contract claim may not be presented for the first time on certiorari appeal.

Certiorari to University of Minnesota Board of Regents.

Lawrence R. Altman, Mark A. Greenman, Altman & Kenas, Minneapolis, for Tzvee Zahavy.

Mark B. Rotenberg, General Counsel, University of Minnesota, Julie A. Sweitzer, Associate General Counsel, Minneapolis, for University of Minnesota.

Considered and decided by HUSPENI, P.J., and SCHUMACHER and FORSBERG ^*, JJ.

OPINION

SCHUMACHER, Judge.

Relator Tzvee Zahavy was a tenured professor at the University of Minnesota. He seeks review of the Board of Regents' decision to terminate him. Zahavy claims the University's decision was arbitrary and unsupported by the evidence, resulted in a breach of his employment contract, and deprived him of a vested property right without due process of law. Zahavy also claims the termination procedures employed by the University were irregular and violated the open meeting law. We affirm.

FACTS

Zahavy was a tenured professor in the University of Minnesota's College of Liberal Arts, Department of Classical and Near Eastern Studies. Zahavy was a well-known scholar in his field and a popular teacher.

In 1987, the College of William and Mary offered Zahavy a visiting professorship for the winter term of 1988. Zahavy notified his department chair of the offer. Shortly thereafter, Zahavy received a letter from an associate dean in the University's College of Liberal Arts, stating that Zahavy could not remain on the University's payroll while receiving full pay from another institution because "[a] faculty member's compensation from this University assumes full-time availability for teaching, research and service." The associate dean suggested that Zahavy take a leave without pay from the University if he wished to accept the William and Mary offer.

The associate dean eventually agreed to give Zahavy permission to accept the William and Mary position while maintaining his position at the University, but refused to give Zahavy written permission. Zahavy subsequently filed a report of his outside duties at William and Mary. The report was approved in April 1988 by the University's President and Board of Regents.

Approximately four years later, in April 1992, Zahavy was offered a full-time tenured professorship at the University of North Carolina at Charlotte (UNCC), effective August 17, 1992. Zahavy presented UNCC's offer to his department chair and asked whether the University could match UNCC's offer or increase his current salary. Eventually, the University made Zahavy a retention offer, which Zahavy accepted.

Zahavy also accepted UNCC's offer, however. Zahavy testified that he decided to work at the University and UNCC concurrently, for no more than one year, until he could decide what to do. Admittedly, Zahavy did not request or receive permission from either the University or UNCC to hold concurrent tenured professorships.

Zahavy received $5,000 from UNCC for moving expenses, but he never moved to North Carolina. Instead, in late October 1992, Zahavy began commuting from Minnesota to North Carolina on Sundays, teaching classes at UNCC on Mondays and Wednesdays, holding office hours on Tuesdays, and returning to Minnesota on Wednesday evenings. He continued this schedule for approximately six weeks, without notifying either institution.

The Dean of the University's College of Liberal Arts, Julia Davis, eventually learned of Zahavy's concurrent positions and met with him twice to discuss the situation. During those meetings, Zahavy characterized his position at UNCC as a "consulting" position involving a very small number of hours. Zahavy also stated that he had only agreed to do 12 lectures for UNCC, that the compensation from UNCC was not for full-time work, and that he understood that the position at UNCC was for only one year. In fact, the position was tenured. Shortly after his initial meeting with Dean Davis, Zahavy resigned his position at UNCC. In May 1993, Zahavy filed a report describing his duties at UNCC as "teach one course & associated duties," and stating that he had only accrued six days of employment at UNCC.

In November 1993, Dean Davis presented her case against Zahavy to the tenured faculty of his department. Zahavy responded to Dean Davis's charges. Following the hearing, the faculty voted 18-0 in favor of pursuing termination proceedings against Zahavy.

Based on the faculty's vote, Dean Davis recommended to Provost Ettore Infante that Zahavy be dismissed. Provost Infante notified Zahavy that he had decided to proceed with Dean Davis' recommendation, and informed Zahavy of his right to a hearing before a panel of the University's Senate Judicial Committee. Zahavy subsequently filed a complaint against Dean Davis with the Senate Judicial Committee, claiming that the decision to initiate termination proceedings against him was contrary to the University's Tenure Regulations.

A six-member panel of the Senate Judicial Committee conducted a three-day hearing and considered evidence presented by attorneys for Zahavy and the University. Several witnesses testified. Following the hearing, the panel issued findings and a recommendation that Zahavy be dismissed. The panel based its recommendation on a finding that Zahavy's conduct had impaired his fitness in a professional capacity.

The University's President, Nils Hasselmo, reviewed the panel's findings and recommendation and considered oral and written arguments by the parties' attorneys. President Hasselmo accepted the panel's findings and recommendation that Zahavy's tenured professorship be terminated.

Zahavy appealed President Hasselmo's decision to the University's Board of Regents. At a special April 7, 1995 meeting, the Regents heard oral arguments by the parties' attorneys, questioned the attorneys, and heard statements offered by students on behalf of Zahavy. The Regents reviewed President Hasselmo's actions, the panel's findings and recommendations, and the claims made on behalf of Zahavy. The Regents approved the President's decision and dismissed Zahavy as a member of the University's tenured faculty.

ISSUES

1. Did the University err by concluding that Zahavy's actions severely impaired his fitness in a professional capacity?

2. Did the University's Senate Judicial Committee panel apply an incorrect burden of proof?

3. Did the panel err by considering issues that had not been addressed previously by Dean Davis or Provost Infante?

4. Did the panel err by denying Zahavy's requests for discovery and by refusing to allow his witnesses to testify?

5. Did President Hasselmo and the Board of Regents err by failing to determine whether two panel members had a conflict of interest?

6. Are the panel's findings unsupported by the evidence?

7. Did the Board of Regents violate the open meeting law?

8. Is Zahavy's breach of contract claim reviewable on this certiorari appeal?

ANALYSIS

Review by certiorari is limited to an inspection of the record of the administrative tribunal, and this court is confined to questions affecting the regularity of the proceedings and, as to the merits of the controversy, whether the determination was arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it. * * * A reviewing court may reverse a university's decision * * * only if it finds a lack of substantial evidence to support that ruling. * * * Academic judgments are afforded great discretion, since decisions regarding a person's scholarship require expert evaluations that are not readily adapted to the procedural tools of judicial decision-making.

Chronopoulos v. University of Minn., 520 N.W.2d 437, 441 (Minn.App.1994) (citing Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 98 S.Ct. 948, 955, 55 L.Ed.2d 124 (1978); Ganguli v. University of Minn., 512 N.W.2d 918, 921 (Minn.App.1994); Harford v. University of Minnesota, 494 N.W.2d 903, 909 (Minn.App.1993), review denied (Minn. Mar. 30, 1993)), review denied (Minn. Oct. 27, 1994).

1. The Board of Regents determined that Zahavy's conduct violated section 10.2(b) of the University's Tenure Regulations, which provides as follows:

A faculty appointment may be terminated or suspended before its ordinary expiration only for one or more of the following causes:

* * *

(b) Unprofessional conduct which severely impairs a faculty member's fitness in a professional capacity.

For purposes of this appeal, Zahavy does not dispute the Regents' determination that his conduct was unprofessional. Zahavy argues, however, that the Regents erred by failing to enunciate specifically how his conduct severely impaired his fitness in a professional capacity. ¹ Zahavy also argues that this error violated his substantive due process rights. See Ross v. University of Minn., 439 N.W.2d 28, 34 (Minn.App.1989) (stating that to prove violation of...