The-Ave.US

This last Thursday, February 3, 2011, the Washington Supreme Court handed down a decision that clarifies the legal framework under which state universities and colleges may discipline tenured faculty members accused of misconduct.

The case is Mills v. Western Washington University, Docket No. 83597-7. The court’s opinion may be accessed at the website of the Washington Administrator For The Courts, http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=835977MAJ.

Properly understanding a court opinion can be tricky for a non-lawyer. The explanation of the court’s decision in the Mills case in this article is my own legal opinion. I’ve been a lawyer for over 35 years with a specialty in administrative law, and this decision is based on administrative law. Nevertheless, readers should understand that other judges’ or lawyers’ interpretation of this decision may differ from mine. In any event, the application of legal principles enunciated in any court decision to other cases is always dependent on the specific facts of those cases.

First things first: Mills v. WWU is a published opinion of our state supreme court, and as such, is precedential. That means it is controlling legal authority in other faculty discipline cases arising in our state universities and colleges.

Before discussing the legal implications of the court’s ruling, it’s necessary to know the factual context. Perry Mills is an associate professor in Western Washington University’s Theatre Arts Department who was accused of a continuing pattern of egregious verbal conduct. I’ve seen a news media article in which Prof. Mills denied these accusations. The Washington Supreme Court did not rule on the truth of falsity of the accusations; the court, in conformity with standard judicial procedure, simply noted the factual findings set forth in its opinion are “based on the unchallenged findings of fact contained in the decision and final order of the Board of Trustees. Unchallenged findings of fact are treated as verities on appeal.” This is not the same thing as a finding of guilt. It only means the BOT’s findings of fact are treated as true for the purposes of deciding the legal issues of the case.

I won’t go into a lot of detail about the findings of fact here, only enough to give you a context for the court’s discussion of the legal procedures involved with disciplining a tenured faculty member.  In 1998 the department chair, in denying Prof. Mills’ application for promotion to full professor, noted that “Mills often berated students and colleagues and had ‘an extremely extremely high student complaint rate. … Two years later, Mills received a letter from the new department chair … admonishing Mills for making ‘off-color remarks’ about colleagues, women, gay students, and minorities” and was told his behavior “must change.” In 2001, “members of the theatre arts faculty and staff addressed a letter to … the dean of the College of Fine and Performing Arts, expressing their ‘real and tangible fear’ occasioned by Mills’ s carrying of a registered firearm and a large knife on campus and in the classroom, together with his belligerent rants about killing people who offended him.”

The court continued, “Mills’s inappropriate behavior did not stop. … After receiving [further] complaints … the University provost suspended Mills with pay in October 2004 pending an investigation. The provost subsequently issued a formal statement of charges against Mills. The University then convened a hearing panel of five faculty members selected from the Faculty Senate’s Standing Committee on Grievances and Sanctions. … At the conclusion of the hearing, the panel recommended that Mills be suspended without pay for two academic quarters. Mills appealed the decision to the University’s Board of Trustees, which affirmed the panel’s recommendation.”

Prof. Mills then sought judicial review in Superior Court under the state Administrative Procedure Act (APA), which denied relief. Prof. Mills then appealed to the State Supreme Court, which sent the case to a Court of Appeals, which rejected Mills’s contract and constitutional claims, but ordered a new hearing because the disciplinary hearing was conducted behind closed doors, which the Court of Appeals concluded violated  the APA. The University appealed that ruling to the State Supreme Court, which reversed the Court of Appeals on that issue and reinstated the Superior Court decision denying relief.

The only legal issue the State Supreme Court decided is whether the closed disciplinary hearing violated the APA. The APA is a broad statute that covers all state agencies and broadly regulates all the state’s administrative functions. It is couched in broad language and is very general in nature, although it gets specific in regards to certain procedures that state agencies must follow. It also establishes the standards of review that state courts must follow when reviewing legal challenges to decisions of state agencies.

Prof. Mills’s disciplinary hearing was presided over by a well known and highly respected retired Superior Court judge, who is a legal expert on both administrative law and legal procedures generally.  As the presiding officer, he ran the hearing, but did not have a vote in the decision. It should be noted that in Washington State, hearing officers often have the decision-making authority of a judge in cases over which they preside, but there also are numerous examples of cases in which the presiding officer or administrative law judge runs the hearing and may assist with the drafting of a decision or even write a proposed decision but does not have decision-making authority. Both models are widely used in Washington administrative law, and which procedure applies to a given proceeding usually depends on the particular agency’s governing statutes.

In conducting a close hearing in Prof. Mills’s case, the presiding officer relied on WWU’s Faculty Handbook, which stated, “The hearing will be private unless the Hearing Panel, in consultation with the Provost and only with the agreement of the Faculty Member, decides that the hearing should be public.” The court notes in its opinion, “Mills, who was represented by counsel, argued that the hearing should be open to the public. The panel decided to close the hearing and asked a newspaper reporter in attendance to depart.”

The State Supreme Court begins its legal analysis by stating, “The APA governs judicial review of agency orders in adjudicative proceedings.” This is standard fare and there’s nothing remarkable about it. The Court then quotes the APA, which limits the authority of judges to overturn administrative decisions by state agencies as follows: “The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that … The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure.”

In reaching its decision upholding the University’s discipline of Prof. Mills over his protests about the closed disciplinary hearing, the State Supreme Court determined that the University’s Faculty Handbook “has the force and effect of law” because it was promulgated pursuant to a legislative delegation of authority. Thus, the Faculty Handbook provisions control the procedures that must be used in a faculty disciplinary proceeding at that institution.

The Court then addressed Prof. Mills’s contention that the provision of WWU’s faculty handbook authorizing closed disciplinary proceedings violated Washington Constitution Art. I, Sec. 10, which states, “Justice in all cases shall be administered openly, and without unnecessary delay.” It determined this constitutional provision applies only to the judicial branch and therefore does not govern administrative proceedings, which are under the executive branch of state government.

In my opinion, the main take-aways from the Mills decision are:

1. State universities and colleges are state agencies;

2. Therefore, the Administrative Procedures Act applies to state universities and colleges, and their decisions in faculty discipline cases are reviewable by the courts under the procedures and standards established in the APA;

3. Where faculty discipline procedures are established by a Faculty Handbook adopted by a state university or college, those procedures have the force of state law, and will control the outcome of legal issues contested in state courts; and

4. By implication, the discipline of a faculty member in a manner that fails to conform to procedures established by a university or college’s Faculty Handbook or other exercise of legislatively delegated rulemaking authority is illegal and will not be upheld by the courts. In other words, one may predict that a decision by a university official that overturns or supersedes a disciplinary decision made pursuant to the university’s established procedures will not be upheld by the courts unless that official has been granted such power by the university’s established procedures.