Marriott v. Cole

EYLER, Judge. The issue presented by this case is whether the denial of tenure by appellees, Harry A. Cole, et ah, constituting the Board of Regents for Morgan State University (Board of Regents or Board) and Morgan State University (MSU), to appellant, Salima Louise Siler Marriott, a faculty member, violated appellant’s contractual or constitutional rights. Facts Appellant was hired by MSU as an instructor on July 1, 1972, to teach several courses, including mental health. At that time, MSU was under the jurisdiction of the Board of Trustees of the State Colleges.

Appellant and MSU executed a “faculty member’s contract” for a term beginning July 1, 1972 and ending June 30, 1973. In September 1970, the Board of Trustees had adopted Regulations and Procedures Governing Academic Freedom and Tenure (Regulations) in the State Colleges. The 1970 Regulations provided that a faculty member who attained tenure could only be dismissed in accordance with stated procedures, including the right to counsel, the right to confront and cross-examine witnesses, and the right to summons witnesses and documents. Further, under the 1970 Regulations, tenure was automatically conferred upon any faculty member who completed the requisite probationary period of employment.

In the case of instructors, the probationary period was seven years. Appellant’s July 1972 contract recited that appellant would be subject to the provisions of those Regulations, as they may be amended from time to time. The Preamble to the 1970 Regulations, however, stated that “a faculty member’s attainment of tenure shall in all cases be determined by the regulations of the Board in force at the time of his initial appointment.” While there are gaps in the allegations and record, it appears to have been the practice of the parties to execute one-year contracts in each year, through the academic year ⁴⁹⁷ 1983 through 3 984. 1 In 1984, the parties executed a three-year contract for the years 1984 through 1987. Appellant alleges that the 1984-87 contract was the last written contract between the parties, and indeed, it is the last executed contract in the record.

Appellant alleges, and appellees do not dispute, that with the exception of salary adjustments, the annual contracts for the four academic years subsequent to 1972 were identical to the 1972 contract. Further, although appellant is silent on the matter, contracts for the 1980-81 and 1982-83 academic years, each of which were included in the record, also were substantially identical to the 1972 contract. In particular, each of these contracts incorporated the provisions of the Board’s Regulations as the same may be amended from time to time. Appellant taught continuously at MSU from July 1972 through July 1996, with the exception of a two-year educational leave for the purpose of completing her PhD. 2 Appellant held the rank of instructor throughout this time period up until August 20, 1990, when she was appointed assistant professor.

On July 18, 1975, the Board of Trustees adopted Laws Relating to and Governing Policies and Procedures of the Board of Trustees of the State Colleges of Maryland (Policies), which included policies and procedures regarding the standard form of agreement for a faculty contract. The 1975 Policies provided that faculty members could elect to be subject to a new form of faculty contract or continue under the old form, except that the attainment of tenure would be governed by the regulations of the Board of Trustees in force at the time of the initial appointment. Up until 1976, MSU had been an under ⁴⁹⁸ graduate college. In 1976, MSU became a university, and its governance vested in a Board of Regents.

In May 1977, the Board of Regents approved Recommendations Regarding Promotion and Tenure which provided that persons holding the rank of instructor would not be eligible for consideration for tenure — tenure would be reserved for the ranks of assistant professor, associate professor, and professor. The Addendum to the 1970 Regulations, apparently adopted in May, 1977, governed the granting of tenure to all faculty members appointed in September 1970 and thereafter, except for instructors granted tenure prior to May 1977. The Addendum provided: “Faculty members holding the rank of Instructor shall not be considered for or granted tenure. This provision does not apply to Instructors who were awarded tenure before May 1977.” Appellant did not attain tenure before May 1977.

Appellant does not allege that the 1977 Addendum was not communicated to her when adopted. The MSU faculty, in August, and again in September, 1978, adopted a Uniform Salary Promotion and Tenure Policy Statement (Faculty Statement). The Faculty Statement provided, in part, for the granting of tenure for instructors and assistant professors appointed prior to the 1977-78 academic year, similar to those contained in the 1970 Regulations. Article 2, § 2 provided “in the case of an instructor, the total number of his annual probationary appointments (including the initial appointment even if less than one year) shall not exceed seven at that institution.” Section 6 of that Article provided that “in every case upon completion of the maximum number of probationary appointments, the faculty member shall attain permanent tenure.” On March 28, 1985, the Board of Regents adopted Policies and Procedures on Appointment, Promotion, and Tenure (APT Policy), which were in effect as of the 1994-95 academic year.

The APT Policy states in pertinent part that [promotions shall be based on merit and cannot be considered automatic, or simply the result of loyal service to the University for a number of years. Similarly, successive ⁴⁹⁹ service shall not confer a right to appointments with tenure. A candidate must instead meet the requirements for the appropriate rank for which he/she is applying and must undergo the appropriate evaluations specified in this document for promotion and/or tenure. The APT Policy further provides that evaluation of a candidate’s application for promotion and/or tenure will be based on three areas of the candidate’s work: (1) instructional performance and advising, (2) research, scholarship, and creative activities, and (3) service to the institution and to the community.

The APT Policy provides procedures to be followed for review and recommendation of promotion and tenure and provides a right of appeal and appeal procedures when the candidate alleges procedural error or the failure to follow published guidelines. Appellant does not allege that the APT Policy was not communicated to her when it first was adopted in 1985. Appellant never was expressly granted tenure, although she requested it from time to time. The President of MSU denied appellant’s requests for tenure on March 23, 1977, June 2, 1978, and June 4, 1980.

In November 1980, the Board of Regents imposed a moratorium on the granting of tenure that remained in effect until March 28, 1985. At that time, the moratorium was lifted, and the Board of Regents approved the APT Policy. Appellant requested recognition of tenure during the moratorium, and the request was denied. Appellant was considered for tenure after her appointment as assistant professor in 1990.

In accordance with the procedure provided for in the APT Policy, her request was denied on November 27, 1995. Appellant filed a complaint for declaratory judgment, in-junctive and other relief, and petition for writ of mandamus, in the Circuit Court for Baltimore City, seeking to have her contractual and constitutional rights declared, and a writ of mandamus issued directing MSU to grant her tenure. In addition, appellant filed a separate action for judicial review ⁵⁰⁰ and for issuance of a writ of certiorari, 3 challenging the constitutionality of the process she was given with regard to MSU’s consideration and ultimate denial of tenure. Appellees filed a motion to dismiss or for summary judgment in the declaratory judgment action, and a motion to dismiss in the action for judicial review.

The trial court granted appellees’ motion to dismiss the action for judicial review, but gave appellant leave to amend her petition. Thereafter, appellant filed an amended petition for judicial review, appellees filed a motion to dismiss the amended petition, and the two actions were consolidated upon appellant’s motion. After a hearing, the trial court granted appellees’ motion to dismiss or for summary judgment in the declaratory judgment action. Subsequently, the trial court held a hearing on appellees’ motion in the action for judicial review and, in a memorandum opinion, “denied” appellees’ petition for judicial review.

Simultaneously, the trial court denied appellant’s motion to amend or to alter the judgment on the first motion. Appellant then filed this timely appeal. Questions Presented 1. Whether material disputes of facts, or inferences therefrom, existed which required denial of Appellee[’]s Motion for Summary Judgment? 2.

Whether a professor at a public university may acquire a property interest, protected by due process, in continued employment (de facto tenure) as a result of the University’s action toward her? 3. Whether the Court properly and sufficiently declared the rights of the parties? Standard of Review The trial court denied appellant’s petition for judicial review and for a writ of certiorari based upon the principles ⁵⁰¹ set forth in Criminal Injuries Compensation Board v. Gould, 273 Md. 486 , 331 A.2d 55 (1975). As correctly noted by the trial court, appellant was entitled to relief by way of judicial review if appellees’ action violated the standards of procedural due process.

While it is undisputed that appellant had no statutory right of appeal, 4 appellate courts have inherent jurisdiction to correct actions by an administrative agency that are arbitrary, capricious, illegal, or unreasonable. Id. at 500-01 , 331 A.2d 55 . Based on its disposition of the declaratory judgment action, the trial court held that the actions of appellees were not arbitrary, capricious, illegal or unreasonable, and denied appellant’s request for judicial review. Thus, the propriety of the trial court’s denial of appellant’s petition for judicial review turns on the propriety of its disposition of the declaratory judgment action.

Appellees framed their motion regarding the declaratory judgment claim as a motion to dismiss or, alternatively, for summary judgment, and attached an affidavit and extensive exhibits in support of their motion. Appellant was given an opportunity to respond in kind, and did respond. The trial court considered the additional documents offered by appellees, along with the statements made in appellant’s complaint and response, and the extensive exhibits attached to appellant’s complaint. The trial court then treated appellees’ motion as a motion for summary judgment in accordance with Rule 2-322(c).

See Hrehorovich v. Harbor Hospital, 93 Md. App. 772, 781-83 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993). Rule 2-501(e) directs the trial court to grant summary judgment in favor of the movant “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Under the summary judgment rule, a trial court does not resolve disputed issues of ⁵⁰² fact, but instead, makes rulings as a matter of law. Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993). Thus, the standard for appellate review of a grant of summary judgment is whether the trial court was legally correct.

Griffith, 332 Md. at 712 , 633 A.2d 84 ; Beatty, 330 Md. at 737 , 625 A.2d 1005 . Discussion Appellant argues that she acquired tenure pursuant to the 1970 Regulations when she completed her seventh probationary period of employment on June 10, 1979. Alternatively, appellant argues that she obtained de facto tenure, or at least a property interest in continued employment, due to MSU’s course of conduct. Appellant argues that there were sufficient disputes of material facts that supported her theories to prevent the entry of summary judgment.

Finally, appellant argues that the trial court erred in failing to declare all of the rights of the parties. We understand appellant’s last argument to be two-fold. She asserts, first, that the trial court, in rendering its decision, disregarded certain facts. Second, appellant asserts that the trial court limited its decision to a determination of whether she had attained tenure, and failed to address her alternative argument that, regardless of whether she had attained tenure, she possessed certain due process rights that were violated by appellees.

A. Attainment of Tenure in 1979 The Regulations adopted in 1970 by the Board of Trustees provided, in pertinent part, that, [i]n every case, upon completion of the maximum number of probationary appointments, the faculty member shall attain permanent tenure. The Board may, in exceptional cases decrease the length of the probationary period or, with the consent of the faculty member concerned, increase the' length of the probationary period. ⁵⁰³ Between 1972 and 1990, appellant was an instructor. Under the 1970 Regulations, the maximum number of annual probationary appointments for an instructor was seven. Appellant asserts that she automatically attained tenure when she completed her seventh annual probationary appointment on June 10, 1979.

She relies on the one-year contract signed in July 1972, which incorporated the 1970 Regulations by reference, and the preamble to the 1970 Regulations. The preamble provided that, although the regulations may be amended from time to time, attainment of tenure shall be governed by the regulations of the Board in force at the time of the initial appointment. Appellant contends that “[t]he tenure attained by [her] was created by statute, defined by custom and usage in the academic community, [and] extended to her by contract and appointment.... ” The problem with appellant’s argument is that, in 1977, the Board enacted an Addendum to the 1970 Regulations, governing the granting of tenure to all faculty members appointed in September 1970 and thereafter, which provided that faculty members holding the rank of instructor shall not be considered for or granted tenure. The Addendum avoided a retroactive result by excluding all instructors who had attained tenure prior to May, 1977.

Appellant had not attained tenure by May, 1977, and was not due to attain tenure until June 10, 1979. Thus, under the regulations then in effect, appellant did not automatically attain tenure in June, 1979. Neither did appellant attain tenure in 1979 by virtue of a contract with MSU. In her complaint for declaratory judgment, appellant alleged that, on May 31, 1978, she executed a one-year contract for the school year beginning August 9,1978 and ending June 10, 1979.

Appellant