ERWIN D. HARRIS vs. BOARD OF TRUSTEES OF STATE COLLEGES & others. [Note 1]

LIACOS, C.J. The plaintiff, a tenured professor at Bridgewater State College, brought a complaint alleging that the defendants dismissed him in violation of his constitutional rights to due process of law and to free speech. He alleged further that his employment as a tenured professor at a public institution was terminated without just cause, and in violation of his employment contract. A judge of the Superior Court dismissed all but the plaintiff's contract claim. The plaintiff appealed and we transferred the case to this court on our own motion.

We summarize the relevant procedural history. On May 27, 1976, the plaintiff, a physics professor on the Bridgewater State College faculty, received a letter notifying him of certain charges against him. [Note 2] The letter informed him that on June 8,

Page 517

1976, a hearing would be held before the faculty status committee (FSC) of the college to determine whether the plaintiff should be dismissed as a faculty member. [Note 3]

Page 518

Prior to June 8, 1976, the plaintiff requested a continuance so that he could have more time to prepare a defense and because the attorney of his choice was not available. This request was denied. The FSC, composed of tenured professors from the faculty and representatives of the college administration, held the hearing on June 8 and 9, 1976. The plaintiff was present. The college presented fifteen witnesses. The plaintiff declined to cross-examine any of them or present his own evidence. The twelve-member FSC unanimously voted on June 9 to recommend that the plaintiff be removed from his tenured position. On June 10, 1976, with the FSC recommendation before it, but without transcripts or findings, the board of trustees of the State Colleges of the Commonwealth (board) voted to accept the recommendations of the FSC. The board notified the plaintiff on that date that he could appeal the decision to the personnel committee of the board, which would hold a full hearing at the plaintiff's request. The committee, composed of members of the board, held eight days of hearings from August 17, 1976, to June 24, 1977. This proceeding was treated as an appeal, and the burden of proof was placed on the plaintiff, who, with the benefit of counsel, presented forty-five witnesses and four affiants. The college did not call any witnesses, but put in evidence the transcript and exhibits from the FSC hearing. The personnel committee recommended to the board that the appeal be denied, which recommendation the board accepted.

Page 519

The plaintiff commenced this action for declaratory relief on December 5, 1977, claiming a violation of due process. On January 31, 1980, the plaintiff amended his complaint, adding claims for violations of free speech and due process rights under 42 U.S.C. Section 1983, as well as a claim for breach of contract. On March 1, 1984, the plaintiff filed a third amended complaint. The plaintiff filed a motion for partial summary judgment, and the defendant filed a cross motion for summary judgment, both of which were denied. The plaintiff moved for a trial or evidentiary hearing. [Note 4] In November, 1986, the judge entered judgment for the plaintiff on his breach of contract claim (see note 7, infra) and dismissed the plaintiff's constitutional claims.

1. Standard of Review.

The judge treated the plaintiff's entire cause of action as a request for review under G. L. c. 30A (1988 ed.), the State Administrative Procedure Act (APA), citing Section 14 of the APA as authority allowing for a review of the plaintiff's constitutional claims.

Although the judge's review of the State law claims under G. L. c. 30A was proper, his reformulation of the plaintiff's Section 1983 claims into a c. 30A review request was erroneous. As to the Section 1983 claims, if the plaintiff had brought his cause of action in a Federal court, he would have been entitled to de novo consideration of his Federal claims. Holley v. Seminole County School Dist., 755 F.2d 1492, 1501-1502 (11th Cir. 1985). The plaintiff's decision to sue in State court does not deprive him of the Federal law which governs Section 1983 actions. While State courts have concurrent jurisdiction in Section 1983 actions, Federal law applies. Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 484-485 n.8 (1978). Maine v. Thiboutot, 448 U.S. 1, 11 n.12 (1980).

Despite the judge's error as to the Section 1983 claims, we may resolve the questions of law which are presented by the case. The plaintiff submitted to the judge a statement of material facts for trial and an offer of proof. We view the proposed

Page 520

evidence in a light most favorable to the plaintiff, in order to determine whether a reasonable fact finder could find for the plaintiff. See von Henneberg v. Generazio, 403 Mass. 519, 520 (1988). See also Alholm v. Wareham, 371 Mass. 621, 623 (1976); P.J. Liacos, Massachusetts Evidence 14, 46 (5th ed. 1981 & 1985 Supp.).

2. Due Process Claims.

The plaintiff claims that the procedure utilized by the college deprived him of due process of law under the Fourteenth Amendment to the United States Constitution. We disagree.

As an initial matter, we observe that the college's grant of tenure to the plaintiff, which included in its terms that he could be dismissed only for "just cause," created a constitutionally protected property right in his continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-539 (1985). Regents of State Colleges v. Roth, 408 U.S. 564, 576-578 (1972). The plaintiff contends that neither the pretermination nor posttermination proceedings satisfied the requirements of due process.

a. Pretermination.

The Supreme Court, in Cleveland Bd. of Educ. v. Loudermill, supra at 546, set forth the minimum due process required prior to the termination of a tenured public employee: "The essential requirements of due process . . . are notice and an opportunity to respond. . . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." This process can be " `something less' than a full evidentiary hearing" and it "need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions . . . ." Id. at 545. The Court based its holding on the assumption that post-deprivation hearings would be available to the individual whose employment had been terminated. Id. at 546.

The hearing before the FSC satisfied the requirements of Loudermill. The notice given to the plaintiff provided him with an adequate opportunity to respond. The plaintiff was made aware of the charges against him, was given details as to the

Page 521

factual basis of the charges, and was given an opportunity to respond to the charges and to cross-examination witnesses. The FSC acted within its discretion in refusing to grant the plaintiff's request for a continuance. [Note 5] We conclude that the full hearing before the FSC provided the plaintiff with all of the pretermination process to which he was entitled. See Riggins v. Regents of the Univ. of Neb., 790 F.2d 707, 710-711 (8th Cir. 1986); Brasslett v. Cota, 761 F.2d 827, 836 (1st Cir. 1985). [Note 6]

b. Posttermination.

The plaintiff also challenges the posttermination process which he received. [Note 7] While the required process may vary according to the nature of each case, Mathews v. Eldridge, 424 U.S. 319, 333 (1976), a number of Federal circuit courts have agreed on certain safeguards that together ensure due process in cases involving the termination of a tenured individual's employment. They are "(1) clear and actual notice of the reasons for termination in sufficient detail to enable him or her to present evidence relating to them; (2) notice of both the names of those who have made allegations against the teacher and the specific nature and factual basis for the charges; (3) a reasonable time and opportunity to present testimony in his or her own defense; and (4) a hearing before an impartial board or tribunal." Riggins v. Regents of the Univ. of Neb., supra at 712. See Rosewitz v. Latting, 689 F.2d 175, 177 (10th Cir. 1982); Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970).

Page 522

The plaintiff, at the time of the posttermination hearing before the personnel committee of the board, had been apprised of the details behind the charges against him, of the witnesses against him, and had been given a reasonable time and opportunity to present his own defense.

The plaintiff claims that the personnel committee was not impartial because it was reviewing its own previous decision to dismiss the plaintiff. A similar claim of bias was rejected in Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 780 n.12 (9th Cir. 1982). See Brasslett v. Cota, supra at 837. There has been no additional showing of actual bias to support a claim of lack of impartiality. See Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 491-494 (1976); Withrow v. Larkin, 421 U.S. 35, 47, 54-55 (1975); Brasslett v. Cota, supra.

Additionally, it was not constitutionally improper to place the burden of proof on the plaintiff at his appeal before the personnel committee. See Vanelli v. Reynolds School Dist. No. 7, supra. See also Chung v. Park, 514 F.2d 382, 386-387 (3d Cir.), cert. denied, 423 U.S. 948 (1975). The admission of the transcript of the FSC hearing by the personnel committee also did not violate due process principles. See Riggins v. Regents of the Univ. of Neb., supra at 711-712; Rosewitz v. Latting, supra at 177. See also LaPointe v. License Bd. of Worcester, 389 Mass. 454, 458 (1983). The plaintiff was free to call any of the witnesses who testified at that hearing.

In summary, the plaintiff has not offered any evidence which would permit a reasonable fact finder to conclude that he has been deprived of due process under the Fourteenth Amendment. [Note 8]

3. First Amendment Claim.

The plaintiff claims that the defendants retaliated against him for making critical public statements concerning the quality

Page 523

of education at Bridgewater State College. The plaintiff criticized the college for failing to prepare its students with practical skills for the job market. He appeared at a hearing before the Subcommittee on Equal Opportunities of the Committee on Education and Labor of the United States House of Representatives in November, 1975; at an open meeting on higher education in January, 1976; and at a hearing before the Brockton city council in March, 1976. In Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), the Supreme Court articulated the standard of proof which governs claims of retaliation against protected speech. The plaintiff initially bears the burden of demonstrating that his conduct was constitutionally protected, and that his conduct was a "substantial factor" or "motivating factor" in the defendants' decision to dismiss him. When the plaintiff has met this burden, the burden shifts to the defendants to show "by a preponderance of the evidence that [they] would have reached the same decision . . . even in the absence of the protected conduct." Id.

A review of the record reveals that the plaintiff has not met his initial burden of showing that his speech was a substantial or motivating factor in the board's dismissal decision. Courts are generally wary of deciding issues of motivation on a pretrial motion. See Munson v. Friske, 754 F.2d 683, 690 (7th Cir. 1985). However, in this case, the record does not support a finding that the plaintiff's speech played any role in the board's decision. See Setliff v. Memorial Hosp., 850 F.2d 1384, 1393 (10th Cir. 1988); Leachman v. Rector & Visitors of the Univ. of Va., 691 F. Supp. 961, 966 (W.D. Va. 1988). In the plaintiff's offer of proof and lengthy statement of material facts for trial, he fails to point to any fact which, if established, would support the finding of a causal link between his speech and his dismissal. [Note 9] A reading of the record demonstrates that neither

Page 524

the FSC nor the board relied on the plaintiff's public statements in reaching their decision. [Note 10]

4. Just Cause.

The plaintiff claims that the judge applied an incorrect legal standard of "just cause." The policy handbook provided that a tenured person "shall not be removed from his position except for just cause." The handbook did not define "just cause." The plaintiff cites no relevant Massachusetts authority to give us guidance. Since we have concluded his constitutional claims have no merit, we examine this matter under State law only.

The meaning of "just cause" varies depending upon the context in which it is used. See Spence v. Gormley, 387 Mass. 258, 263-264 (1982); Driscoll v. Harrison, 11 Mass. App. Ct. 444, 448 (1981). We are well aware of the importance of tenure in the American system of higher education. See generally Note. The Role of Academic Freedom in Defining the Faculty Employment Contract, 31 Case W. Res. L. Rev. 608, 628, 655 (1981). Tenure provides a professor the security to speak his or her mind without fear of reprisal. Were we free to do so, we might agree with the plaintiff that a standard, higher than a loose rationality test, should govern in cases involving tenured university professors in public universities.

We believe, however, that the judge was correct in concluding that, absent an applicable collective bargaining agreement defining the term "just cause" otherwise, the statutory language must prevail. The judge ruled correctly that: "Massachusetts G. L. c. 73, Section 16 entrusts to the Board of Trustees of State Colleges `complete authority with respect to the election or appointment of the professional staff including terms, conditions and periods of employment, compensation . . . and dismissal.' This grant of plenary authority was reaffirmed in St. 1965, c. 572, Section 44, which states that `[t]he professional staff

Page 525

of . . . the departments of education and the state colleges shall serve at the pleasure of their respective boards.' This has been interpreted to mean that the professional staff shall serve `without benefit of statutory tenure provisions.' Rennert v. Board of Trustees of State Colleges, 363 Mass. 740, 744 (1973). (The `statutory tenure provision' referred to here is G. L. c. 73, Section 4B.) . . .

"In addition, the Board `may adopt, amend or repeal such rules and regulations for the government of any such college, for the management, control and administration of its affairs, for its faculty, students and employees, and for the regulation of their own body, as they may deem necessary' (emphasis added). G. L. c. 73, Section 1.

"Pursuant to this grant of authority, the Board has enacted regulations governing the appointment and removal of tenured faculty in the state colleges. Since Harris became a tenured professor in 1973, he was subject to the Board's policy of `Removal of Tenured Person.' In relevant part, the policy states that `[a] tenured person, without regard for the means through which he attained tenure, shall not be removed from his position except for just cause.' Although the policy does not define `just cause', certain statutes and court cases provide meaning to this crucial phrase."

In Rinaldo v. School Comm. of Revere, 294 Mass. 167, 169 (1936), the court, referring to similar statutory language (G. L. c. 71, Section 42) stated: "Good cause includes any ground which is put forward by the [board] in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the [board's] task of building up and maintaining an efficient school system." In Rennert v. Trustees of State Colleges, supra at 745, we stated: "It is not for this court to rule on the wisdom of tenure policy for State educational institutions." Consistent with this approach is McEnteggart v. Cataldo, 451 F.2d 1109, 1111 (1st Cir. 1971), cert. denied, 408 U.S. 943 (1972), where, as to a nontenured professor at a State college, the court stated that the decision of the board of trustees will be upheld unless each of the stated reasons for termination "is trivial, or is unrelated to the educational process or to working relationships

Page 526

within the educational institution." See Drown v. Portsmouth School Dist., 451 F.2d 1106, 1108 (1st Cir. 1971).

We believe the judge was warranted in concluding that the board's findings supported the conclusion that the plaintiff had engaged in personal conduct which impaired his ability to fulfil his institutional responsibilities and thus related to his professional fitness. Some of the charges against the plaintiff, when viewed in isolation, may not support a finding of just cause for dismissal. However, in the circumstances of this case, the plaintiff had engaged in a pattern of behavior which, when viewed as a whole, supported a conclusion that he was unfit to remain a tenured faculty member. See Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 309 (1981). There was evidence, among other things, that the plaintiff repeatedly belittled his students, falsely stated that he had applied for a permit to carry a gun to protect himself against a squirt-gun toting student and constantly harassed his fellow faculty members, administrators, and support staff. We conclude that the board acted within its discretionary authority under G. L. c. 73, Section 16. [Note 11] See Howard Johnson Co. v. Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 492 (1987).

5. Motion for Recusal.

The plaintiff argues that the judge's refusal to recuse himself was erroneous. We disagree.

The plaintiff asserted in his affidavit supporting the motion to recuse that the judge stated at a pretrial conference on October 16, 1985, that the plaintiff was entitled to limited relief on back pay and that he had not suffered any constitutional or contractual violations. The affidavit also alleged that the judge had stated that "his view of the state college tenure system and the just cause standard was based in part on . . . discussions with deans or other officials in the state college system." In addition, according to the plaintiff's affidavit, the judge asked

Page 527

plaintiff's counsel if the plaintiff had been mentally ill before his dismissal.

"Article 29 of the Massachusetts Declaration of Rights requires that judges be `as free, impartial and independent as the lot of humanity will admit.' Under former S.J.C. Rule 3:25, Canon 3 (C) (1), 359 Mass. 842 (1972) (now Rule 3:09, Canon 3 [C] [1]), a judge `should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.' However, `[n]ot every contention of bias or partiality is entitled to be honored by a judge, or a hearing officer.' Police Comm'r of Boston v. Municipal Court of the W. Roxbury Dist., 368 Mass. 501, 508 (1975), and cases cited. Bias requiring disqualification must ordinarily arise from an extrajudicial source. See Kennedy v. District Court of Dukes County, 356 Mass. 367, 379 (1969). In general, the question of disqualification is left to the judge's discretion. Commonwealth v. Coyne, 372 Mass. 599, 602 (1977), citing Commonwealth v. Leventhal, 364 Mass. 718, 722 (1974), and cases cited." Commonwealth v. Gogan, 389 Mass. 255, 259 (1983).

The judge was within his discretion in denying the motion to recuse himself. With respect to the judge's question as to whether the plaintiff had suffered any mental illness in the past, there is no allegation that the basis of this question was extrajudicial, and there is information in the record which provided a basis for the question. Considering that the plaintiff claimed to be suffering from anxiety after his discharge, we do not consider the judge's question to reveal any lack of impartiality. See Commonwealth v. Dane Entertainment Servs., Inc., 18 Mass. App. Ct. 446, 449-450 (1984).

The plaintiff claims that the judge engaged in an ex parte communication with officials of the State college system. While we deem ex parte communications on substantive matters to be inappropriate, we are not persuaded by the plaintiff's submissions that such an ex parte communication occurred. Even were we to assume it, arguendo, it does not appear that the judge received information concerning any undisclosed facts. See Massachusetts State Pharmaceutical Ass'n v. Rate Setting Comm'n, 387 Mass. 122, 133-134 (1982);

Page 528

Perez v. Boston Hous. Auth., 379 Mass. 703, 741 (1980). Cf. Duro v. Duro, 392 Mass. 574, 576 n.4 (1984).

Finally, with regard to the judge's intimations as to the probable disposition of the case, such remarks, made in the course of a pretrial conference, were not improper and do not support a claim of bias. See Perez v. Boston Hous. Auth., supra at 740-741.

Judgment affirmed.