Opinion
No. C4-99-1200.
Filed March 7, 2000.
Appeal from Board of Regents of the University of Minnesota.
Lawrence R. Altman, (for relator)
Mark B. Rotenberg, General Counsel, Lorie S. Gildea, Associate General Counsel, (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Respondent University of Minnesota terminated relator Bimal C. Roquitte's employment as a tenured faculty member. On review, relator contends that his due process rights were violated because of bias on the part of the president of the university and the Board of Regents and that the decision is not supported by substantial evidence. We affirm.
DECISION
Review by certiorari is limited to an inspection of the record of the administrative tribunal. Chronopoulos v. University of Minn., 520 N.W.2d 437, 441 (Minn.App. 1994), review denied (Minn. Oct. 27, 1994). This court's inquiry is confined to (1) questions affecting the regularity of the proceedings; and (2) whether the determination on the merits was arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it. Id.
Based on the recommendation of the majority of the faculty in relator's division, respondent terminated relator as a tenured professor in February 1996. Relator appealed this decision to a panel of the Senate Judicial Committee (SJC). Lorie Gildea, an attorney with respondent's Office of the General Counsel (OGC), represented respondent during the 10-day hearing before the SJC panel. A plurality of the panel recommended that the president of the university find that respondent failed to present clear and convincing evidence that relator failed to adequately perform his reasonably assigned duties. A majority of the panel recommended that the president find that respondent failed to demonstrate that relator's termination was appropriate as opposed to some lesser action.
Pursuant to the tenure code, President Mark Yudof reviewed the SJC panel's recommendations. President Yudof, counseled by General Counsel Mark Rotenberg, determined that clear and convincing evidence existed that relator failed to adequately perform his duties and that terminating his employment as a tenured faculty member was an appropriate action. Relator appealed President Yudof's decision to the Board of Regents. The Board of Regents, advised by counsel from outside the university, affirmed President Yudof's determination.
I.
Relator contends he was deprived of due process because of alleged partiality. Parties to an administrative proceeding are entitled to a decision by an unbiased decision-maker. Buchwald v. University of Minn., 573 N.W.2d 723, 727 (Minn.App. 1998), review denied (Minn. Apr. 14, 1998). Administrative proceedings are presumed to be honest and regular and the party claiming otherwise has the burden of proving that a decision was made improperly. Id. (holding that relator failed to prove the university president was biased against him in making indemnity decision). Relator must show a risk of actual bias to overcome the presumption of regularity. In re Ethics Complaint of Kennedy v. L.D., 430 N.W.2d 833, 835 (Minn. 1988).
Relator complains that both President Yudof and the Board of Regents were biased because of their relationship with the OGC, which prosecuted the case before the SJC panel. We disagree. Under the University of Minnesota tenure code the president is permitted to consult with OGC attorneys who have not had previous responsibility for the case at issue and have not participated in presenting the matter to the SJC. Here, relator was advised that the process complied with the tenure code. Further, relator cannot point to any evidence that Rotenberg or Gildea had any improper contacts regarding this matter. We conclude that the roles of the OGC attorneys here do not pose a risk of actual bias.
In addition, we note that relator's argument has been rejected by this court in the context of challenges regarding the contacts between administrative agencies and the attorney general's office. See Elim Homes, Inc. v. Minnesota Dep't of Human Servs., 575 N.W.2d 845, 849 (Minn.App. 1998) (permitting the "dual role" of the attorney general's office in which attorneys from the attorney general's office act as counsel to the department before an ALJ and as counsel to the commissioner when reviewing the ALJ determination). See also Sleepy Eye Care Ctr. v. Commissioner of Human Servs., 572 N.W.2d 766, 771-72 (Minn.App. 1998) (noting procedures for screening attorneys who argue before ALJ from those who advise commissioner and deciding that, absent any evidence of improper conduct by attorneys, the court would not change the procedure).
We also reject relator's argument that he was denied due process because President Yudof and the Board of Regents declined to disclose their contacts with attorneys from the OGC on unrelated matters. Relator cites no authority that President Yudof or the Board of Regents have a duty to disclose such contacts. Nor does relator cite authority for his contention that the president's or the regents' prior consultations with the OGC attorneys on unrelated matters raise an inference of bias. We reject relator's request that we adopt a rule that would prevent the OGC from advising the administration or would prevent President Yudof and the Board of Regents from exercising decision-making authority over university employees.
Relator also asks that we reverse respondent's decision because respondent failed to respond to relator's disclosure requests. But these requests were unduly burdensome, inquiring about all contacts with the OGC over the course of several years whether or not related to this matter. Moreover, relator did not make this request to President Yudof until well after he had decided this case and relator's request to the Board of Regents was made shortly before the hearing. Thus we conclude that respondent's failure to comply fully with an untimely, overly broad request about contacts unrelated to this matter does not raise an inference of bias. See In re Termination of the Coaching Contract of Hahn, 386 N.W.2d 789, 792 (Minn.App. 1986) (holding (1) hearing officer properly refused to allow relator to question him regarding bias where relator did not raise any objection until the day of the hearing, and (2) the alleged relationship did not raise any inference of bias), review denied (Minn. July 13, 1986).
Finally, we reject relator's argument that President Yudof and the Board of Regents demonstrated partiality by finding against relator despite the SJC panel's contrary recommendation. This court has previously held that the president's or regents' ability to reject the SJC panel's recommendations does not violate due process. Harford v. University of Minn., 494 N.W.2d 903, 909 (Minn.App. 1993), review denied (Minn. Mar. 30, 1993), overruled on other grounds, Shaw v. Board of Regents of the Univ. of Minn., 594 N.W.2d 187, 190 (Minn.App. 1999).
II.
Relator argues that substantial evidence does not exist to support respondent's decision that relator failed to adequately perform his duties and that his termination as a tenured faculty member was an appropriate remedy. This court reverses a university's decision to terminate an employee only if it finds a lack of substantial evidence to support that ruling. Chronopoulos, 520 N.W.2d at 441. Decisions regarding a person's scholarship require expert evaluations that are not readily adapted to the procedural tools of judicial decision-making and are therefore afforded great discretion. Id.
After a careful review of the record, we conclude that substantial evidence supports the decision. The record indicates: (1) appellant was the subject of an unusual number of student complaints, including a formal student grievance in 1993; (2) appellant failed to adequately fulfill his teaching responsibilities; (3) appellant has not published scholarly research since 1970, due in part to his failure to use and request research space; (4) appellant participated in very few professional outreach and service activities; (5) appellant shared in very few campus responsibilities and missed approximately three-fourths of his discipline meetings over an 18-year period; and (6) appellant's supervisors all had difficulty with his performance. Additionally, appellant did not respond to warnings about his performance or make efforts to improve his performance. We conclude that the findings of the president, incorporated by the Board of Regents in its decision, adequately documented both the evidence supporting relator's failure to perform his duties and the reasons why termination from employment as a tenured faculty member was an appropriate remedy.