Failure to Follow Procedures Results in Costly Litigation
 
February 15, 2006
 

John Marder lost his job as tenured assistant professor of mass communication at the University of Wisconsin at Superior in 2001. His lawsuit, Marder v. Board of Regents of the University of Wisconsin System, No. 2003AP2755, Wisconsin Sup. Ct. Nov. 29, 2005, slip. op. at 5, lives on.

Marder was discharged because of alleged sexual harassment and violation of the University’s ethics code. After a hearing in January 2000, four tenured faculty members rejected the chancellor’s recommendation to terminate his employment. Because the faculty committee found that Marder had destroyed collegiality in his department and “engaged in a course of conduct that is simply unacceptable on this or any other university campus,” it recommended that he be required to undergo counseling and transferred to another department. During the hearing, attorneys from the Office of the General Counsel of the University of Wisconsin System served as counsel to the chancellor. Their supervisor was, at the same time, acting as legal counsel to the Board of Regents (Board).

In spite of the faculty committee’s decision, the chancellor recommended to the president of the University of Wisconsin System that Marder be discharged because Marder had been the subject of a number of complaints from students, faculty (including the chair of Marder’s department) and staff alleging sexual misconduct with students, bad relationships with faculty and other misconduct. He said that dismissing Marder was necessary to maintain faculty morale and the integrity of the University.

In March 2001, the Personnel Matters Review Committee (PMRC), to which the president referred the chancellor’s recommendations, recommended to the Board of Regents that Marder not be dismissed but placed on notice that his past behavior could be used against him in any future disciplinary action. The Board rejected this recommendation and sent the matter back to the PMRC for a hearing. After that hearing, the PMRC again recommended that Marder not be discharged but did not include proposed findings of fact and conclusions of law. Again, the Board returned the case to the PMRC.

At a meeting in June, 2001, the Board discussed the Marder case. The chancellor flew from Superior to Milwaukee to that meeting with one of the regents. At the meeting the chancellor spoke with the Board in closed session about his decision to terminate Marder’s employment. The same lawyers who had advised the chancellor and those who had advised the Board earlier were present at the meeting, but Marder and his counsel were not allowed to attend. The Board in open session then voted to terminate Marder’s employment.

Marder sought court review, asking for reversal of the termination decision or leave to take discovery regarding ex parte communications he contended violated his due process rights. The court denied reversal or discovery but remanded the case to the Board for further action because Marder had not been present when the Board and the chancellor met. Marder appealed and the Board cross-appealed. The court of appeals remanded the case to the trial court to determine whether new facts were presented when the chancellor met in closed session with the Board.

Marder appealed to the Wisconsin Supreme Court, which decided the following in November 2005: (1) there was no evidence of any improper communication between the chancellor and the regent on the plane trip from Superior to Milwaukee to overcome a presumption that they had acted appropriately; (2) the attorneys who advised the chancellor and the Board did not act improperly even though they were from the same office because they were not decision-makers and there was no evidence to overcome the presumption that the Board had acted with honesty and integrity; and (3) Marder’s right to due process was violated if the Board heard new facts from the chancellor and based Marder’s discharge on those facts. The Supreme Court remanded the case to the trial court for a determination on the due process issue and left the matter of additional discovery on that point to the trial court.

Thus, Marder’s saga continues … The moral of the story is that, if due process is denied, everyone loses time and money in protracted litigation. 

For more information, e-mail Cindy Brennan Ryan at cynthia.ryan@hklaw.com or call toll free, 1-888-688-8500.