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Marder v. Board of Regents of the University of Wisconsin System11/29/2005
REVIEW of a decision of the Court of Appeals. Affirmed.
This is the review of a decision from the court of appeals reversing the order of the circuit court for Douglas County, Robert E. Eaton, Judge, that reversed the decision of the Board of Regents of the University of Wisconsin System (Board) to terminate John Marder, a tenured faculty member at the University of Wisconsin-Superior (UW-Superior).
Marder does not assert that there was insufficient evidence presented to the Board to terminate him for just cause. Instead, he argues that: (1) the Board failed to accord him a fair hearing under the contested case procedures of ch. 227, which prohibits ex parte communications with the decision-maker on the merits of the case and provides specific remedies when such communication occurs; and (2) the Board was a biased decision-maker, thereby denying him due process of law, because of three alleged ex parte communications: (a) between the chancellor of UW-Superior and Regent Toby Marcovich; (b) between counsel advising the chancellor and counsel advising the Board; and (c) between the chancellor and the Board just before the Board voted to terminate him.
We conclude that the proper pre-termination procedure for a tenured faculty member of the University of Wisconsin System is set out in Wis. Stat. § 36.13(5) (2003-04) and Wis. Admin. Code § UWS 4 (Apr., 2001), which the Board correctly employed, and that there has been no showing that Marder's rights were compromised by alleged ex parte communications between the chancellor and Regent Marcovich or between the University of Wisconsin System counsel who advised the chancellor and the Board. However, based on the record before us, we cannot determine whether in the communication between the chancellor and the Board, which occurred immediately before the Board voted to terminate Marder, the chancellor presented new facts to the Board upon which its decision to terminate Marder was based. Therefore, we remand to the circuit court for the limited purpose of making that determination. We leave to the circuit court's discretion the decision of whether discovery is needed to determine whether the chancellor presented any new facts upon which Marder's termination was based. Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
Marder was first employed by the UW-Superior in 1987; he was a tenured professor in the Department of Communicating Arts. In 1999, UW-Superior Chancellor Julius Erlenbach served Marder with a Statement of Charges that included 18 separate charges against him that the chancellor said "evince a pattern of behavior that is inconsistent with the expectations this university has of tenured faculty members and which further violate standards of professional conduct, thus constituting just cause to dismiss you from your tenured faculty position at UW-Superior." The chancellor advised Marder that he had the right to request a hearing on the chancellor's decision to terminate his employment.
The Statement of Charges that led to the chancellor's decision to dismiss Marder included the following: (1) Marder shared a hotel room with a particular female UW-Superior student and drank too much alcohol which caused him to "black-out" so that he was unable to remember if he had engaged in sexual misconduct; (2) Marder shared hotel rooms and traveled with a different female UW-Superior student, who complained to the Affirmative Action Committee that Marder engaged in inappropriate sexual conduct, causing the Committee to find that he had engaged in improper behavior with the student; (3) Marder manipulated student evaluations by playing a tape recording relating to hi
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