Stanley O. Gaines, Jr., Archive: Nov. 19, 1998, Andrew R. Corin v. Pomona College, Writ of Mandate granted, Pomona must reconsider tenure denial, costs awarded.

Gaines gMoses	Dr. Stanley O. Gaines, Jr., Archive: Date: 11/19/1998 Type: Court Order To: Andrew R. Corin vs. Pomona College From: William J. McVittie, Superior Court Judge, Los Angeles County Re: Granting Writ of Mandate, ordering Pomona to reconsider tenure denial Att: None Original Filed Nov. 19, 1998 Superior Court of California County of Los Angeles Andrew R. Corin vs. Pomona College Case No. KS 004 157 Ruling on Petition for Writ of Mandate The matter having been briefed, argued and submitted for decision, this Court now grants the Writ of Mandate requested under Code Civ. Pro. Section 1094.5. History In the spring of 1986, Petitioner was hired by Respondent as an instructor in Russian, with an automatic promotion to the rank of Visiting Assistant Professor upon receipt of the Ph.D. degree. After a nationwide search, Petitioner was thereafter selected by Respondent from a field of 21 candidates in 1987 to receive a two-year tenure track contract as Assistant Professor in Respondent's Department of Modern Languages and Literatures. (He was also given one year's credit of service toward the next rank of Associate Professor for his 1986-1987 service.) Later that year Peitioner was evaluated for extension of his contract (from July 1, 1998 through June 30, 1990), which was granted. Peitioner's contract was again reviewed in 1989 for an additional three-year extension [p. 2] from July 1, 1990 through June 30, 1993), which was also granted. He was to be reviewed for tenure during the second year of this latest contract. Pursuant thereto, Petitioner was reviewed for tenure in 1992 and that status was denied. He exhausted his administrative remedies and thereafter filed suit in Superior Court for wrongful termination and breach of contract and implied convenants. Respondent demurred to Petitioner's complaint on the ground that the exclusive remedy was administrative mandamus review under Code Civ. Pro. Section 1094.5. The trial court overruled the demurrer and Respondent sought a writ of mandate directing the trial court to set aside its order. The Petition for Writ of Mandate was granted and the trial court was directed to sustain Respondent's demurrer without leave to amend. (Pomona College v. Superior Court, 45 Cal.App.4th 1716; 53 Cal.Rptr.2d 662 [May 1996].) In doing so, the Appellate Court stated: ...We believe that the determination as to whether the proceedings were adequate, whether procedural irregularities occurred during the review process, and whether they were so prejudicial as to warrant the issuance of a writ of mandate should be made only upon Corin's presentation of the proper pleading. Pursuant thereto, Petitioner again filed suit in this court seeking the designated relief. The Administrative Record The record (Administrative Record, Vols. 1-5) has been filed with this Court. It shows that Petitioner received a timely, unanimous departmental recommendation of tenure from the Department of Modern Languages and Literatures (A.T. 95-98); that he received excellent student evaluations and scholarly evaluations from his professional peers outside Pomona College (A.T. 35-38; 41-77; 82-89; 92-93); and he received a belated "recommendation" from the Intercollegiate Linguistics Program chaired by Professor Jay Atlas (A.T. 99, 123). The Subcommittee for the Promotion and Tenure of Andrew Corin, which conducted the administrative review and hearing on behalf of the Administrative Committee (Note: the operation of the administrative hearing process is set forth in the appellate decision above at pages 1728 and 1729 thereof.), recommended indefinite tenure on November 2, 1992 (A.T. 106). [p. 3] The Administrative Committee reviewed the recommendation on November 12, 1992 (A.T. 121) and referred the report back to the Subcommittee after President Stanley remarked, "...As the Faculty Handbook says, you have to have excellence in all three areas, okay (A.R. 225)." Concurrently with said action, the Subcommittee reconvened and examined Professor Atlas, a Philosophy professor who heads the Pomona College-Pitzer College Intercollegiat Program in Linguistics. Professor Atlas had previously signed a letter in support of Petitioner's tenure application. No notice was provided to Petitioner of this "appearance" (A.R. 107). Professor Atlas apparently changed his position since he submitted a letter to the Subcommittee on December 1, 1992 which was highly critical of Petitioner's linguistics skills (A.R. 111). No notice of the receipt of this solicited letter was provided Petitioner. On December 7, 1992, the Subcommittee reversed their previous tenure recommendations and submitted their negative recommendation to the Administrative Committee (A.R. 121). This revised report was signed by Norm Himes as Chair, although subsequent testimony before the Grievance Committee showed that he had been replaced in that capacity by Gwendolyn Lytle, who allegeedly wrote the final report (A.R. 229). The revised report was forwarded to the Executive Committee, which approved the negative recommendation and submitted the issue to the Cabinet of the Faculty of Pomona College at 4:00 p.m.-all three events occurring that same day. Petitioner was offered a one-year, non-renewable teaching contract effective from July 1, 1993 to June 30, 1994 (A.R. 120). He thereafter filed a grievance (A.R. 133) and exhausted his administrative remedies before filing the initial complaint in Superior Court herinabove referred to. Issue Code Civ. Pro. Section 1094.5 (b) provides, "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision [p. 4] is not supported by the findings, or the findings are not supported by the evidence." Discussion The 1992-1993 Pomona College Faculty Handbook provides that the Subcommittee for the Promotion and Tenure of Andrew Corin was delegated the responsibility of conducting a hearing and weighing the evidence presented to it by Petitioner's home department (A.R. 864). Petitioner was neither given notice of nor an opportunity to respond to the hearing at which Professor Atlas had "appeared" on November 20, 1992, as reflected in his letter dated December 1, 1992. In deed, Professor Atlas has signed a "recommendation" for tenure on behalf of the Linguistics Program less than two months earlier. To conduct a hearing and solicit a negative report from Professor Atlas (after a favorable recommendation signed by Dr. Atlas had been presented to the Petitioner earlier), without notice of the hearing or "requested" re-evaluation, would appear manifestly unfair to any reasonable person. The reasoning of English v. City of Long Beach (1950) 35 Cal.2d 22; 217 Pac.2d 22 applies here. An administrative body, such as this subcommittee, that makes decisions based upon evidence (Dr. Atlas' hearing and related letter) of which a party is not apprised and for which there was no opportunity to contravent, amounts to a denial of a fair hearing. Conclusion The manner in which the Administrative Committee, on November 12, 1992, re-referred the recommendation for tenure back to the Subcommittee absent any controverting evidence, the conflict between the testimony of a Subcommittee member that the Chair of the Subcommittee resigned although his signature appears on the report of December 7, 1992; and the rapid manner in which the revised Subcommittee recommendation, Administrative Committee adoption and presentation to the Pomona College Cabinet were presented on December 7, 1992-all cloud the issue as to the fairness of the tenure hearing granted Petitioner. But there is no question but that the Subcommittee reconvened on November 20, 1992 and interviewed Professor Atlas, requesting a letter from him relative to his apparently revised opinion of Petitioner without notice of either the hearing or the December 1, 1992 letter, which apparently [p. 5] constitutes the primary basis upon which tenure was denied. The unfairness of the proceeding violates basic concepts of a fair administrative hearing, required by California Code Civ. Pro. Section 1094.5. Accordingly, Pomona College is directed by this Writ to reconsider the issue as to Peitioner's tenure. Petitioner is awarded costs. Issues as to ancillary relief can be accomodated at a subsequent hearing upon notice of either counsel. Finally, the Court notes that there appear to be interest on both sides subject to negotiation and perhaps further mediation may allow the parties to avoid further risks and the related costs of continuing this dispute. Date: Nov 19 1998 Signed by William J. McVittie Judge of the Superior Court Note to Counsel: The Court regrets its recent illness, hospitilization, and extended stay from the courthouse resulting therefrom. Top

Gaines

gMoses

Dr. Stanley O. Gaines, Jr., Archive:
Date: 11/19/1998
Type: Court Order
To: Andrew R. Corin vs. Pomona College
From: William J. McVittie, Superior Court Judge, Los Angeles County
Re: Granting Writ of Mandate, ordering Pomona to reconsider tenure denial
Att: None

Original Filed Nov. 19, 1998

Superior Court of California
County of Los Angeles

Andrew R. Corin
vs.
Pomona College

Case No. KS 004 157
Ruling on Petition for Writ of Mandate

The matter having been briefed, argued and submitted for decision, this Court now grants the Writ of Mandate requested under Code Civ. Pro. Section 1094.5.

History

In the spring of 1986, Petitioner was hired by Respondent as an instructor in Russian, with an automatic promotion to the rank of Visiting Assistant Professor upon receipt of the Ph.D. degree.

After a nationwide search, Petitioner was thereafter selected by Respondent from a field of 21 candidates in 1987 to receive a two-year tenure track contract as Assistant Professor in Respondent's Department of Modern Languages and Literatures. (He was also given one year's credit of service toward the next rank of Associate Professor for his 1986-1987 service.)

Later that year Peitioner was evaluated for extension of his contract (from July 1, 1998 through June 30, 1990), which was granted.

Peitioner's contract was again reviewed in 1989 for an additional three-year extension [p. 2] from July 1, 1990 through June 30, 1993), which was also granted. He was to be reviewed for tenure during the second year of this latest contract.

Pursuant thereto, Petitioner was reviewed for tenure in 1992 and that status was denied. He exhausted his administrative remedies and thereafter filed suit in Superior Court for wrongful termination and breach of contract and implied convenants.

Respondent demurred to Petitioner's complaint on the ground that the exclusive remedy was administrative mandamus review under Code Civ. Pro. Section 1094.5. The trial court overruled the demurrer and Respondent sought a writ of mandate directing the trial court to set aside its order.

The Petition for Writ of Mandate was granted and the trial court was directed to sustain Respondent's demurrer without leave to amend. (Pomona College v. Superior Court, 45 Cal.App.4th 1716; 53 Cal.Rptr.2d 662 [May 1996].)

In doing so, the Appellate Court stated:

...We believe that the determination as to whether the proceedings were adequate, whether procedural irregularities occurred during the review process, and whether they were so prejudicial as to warrant the issuance of a writ of mandate should be made only upon Corin's presentation of the proper pleading.

Pursuant thereto, Petitioner again filed suit in this court seeking the designated relief.

The Administrative Record

The record (Administrative Record, Vols. 1-5) has been filed with this Court. It shows that Petitioner received a timely, unanimous departmental recommendation of tenure from the Department of Modern Languages and Literatures (A.T. 95-98); that he received excellent student evaluations and scholarly evaluations from his professional peers outside Pomona College (A.T. 35-38; 41-77; 82-89; 92-93); and he received a belated "recommendation" from the Intercollegiate Linguistics Program chaired by Professor Jay Atlas (A.T. 99, 123).

The Subcommittee for the Promotion and Tenure of Andrew Corin, which conducted the administrative review and hearing on behalf of the Administrative Committee (Note: the operation of the administrative hearing process is set forth in the appellate decision above at pages 1728 and 1729 thereof.), recommended indefinite tenure on November 2, 1992 (A.T. 106). [p. 3]

The Administrative Committee reviewed the recommendation on November 12, 1992 (A.T. 121) and referred the report back to the Subcommittee after President Stanley remarked, "...As the Faculty Handbook says, you have to have excellence in all three areas, okay (A.R. 225)."

Concurrently with said action, the Subcommittee reconvened and examined Professor Atlas, a Philosophy professor who heads the Pomona College-Pitzer College Intercollegiat Program in Linguistics. Professor Atlas had previously signed a letter in support of Petitioner's tenure application. No notice was provided to Petitioner of this "appearance" (A.R. 107). Professor Atlas apparently changed his position since he submitted a letter to the Subcommittee on December 1, 1992 which was highly critical of Petitioner's linguistics skills (A.R. 111). No notice of the receipt of this solicited letter was provided Petitioner. On December 7, 1992, the Subcommittee reversed their previous tenure recommendations and submitted their negative recommendation to the Administrative Committee (A.R. 121). This revised report was signed by Norm Himes as Chair, although subsequent testimony before the Grievance Committee showed that he had been replaced in that capacity by Gwendolyn Lytle, who allegeedly wrote the final report (A.R. 229).

The revised report was forwarded to the Executive Committee, which approved the negative recommendation and submitted the issue to the Cabinet of the Faculty of Pomona College at 4:00 p.m.-all three events occurring that same day.

Petitioner was offered a one-year, non-renewable teaching contract effective from July 1, 1993 to June 30, 1994 (A.R. 120). He thereafter filed a grievance (A.R. 133) and exhausted his administrative remedies before filing the initial complaint in Superior Court herinabove referred to.

Issue

Code Civ. Pro. Section 1094.5 (b) provides, "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision [p. 4] is not supported by the findings, or the findings are not supported by the evidence."

Discussion

The 1992-1993 Pomona College Faculty Handbook provides that the Subcommittee for the Promotion and Tenure of Andrew Corin was delegated the responsibility of conducting a hearing and weighing the evidence presented to it by Petitioner's home department (A.R. 864). Petitioner was neither given notice of nor an opportunity to respond to the hearing at which Professor Atlas had "appeared" on November 20, 1992, as reflected in his letter dated December 1, 1992.

In deed, Professor Atlas has signed a "recommendation" for tenure on behalf of the Linguistics Program less than two months earlier.

To conduct a hearing and solicit a negative report from Professor Atlas (after a favorable recommendation signed by Dr. Atlas had been presented to the Petitioner earlier), without notice of the hearing or "requested" re-evaluation, would appear manifestly unfair to any reasonable person.

The reasoning of English v. City of Long Beach (1950) 35 Cal.2d 22; 217 Pac.2d 22 applies here. An administrative body, such as this subcommittee, that makes decisions based upon evidence (Dr. Atlas' hearing and related letter) of which a party is not apprised and for which there was no opportunity to contravent, amounts to a denial of a fair hearing.

Conclusion

The manner in which the Administrative Committee, on November 12, 1992, re-referred the recommendation for tenure back to the Subcommittee absent any controverting evidence, the conflict between the testimony of a Subcommittee member that the Chair of the Subcommittee resigned although his signature appears on the report of December 7, 1992; and the rapid manner in which the revised Subcommittee recommendation, Administrative Committee adoption and presentation to the Pomona College Cabinet were presented on December 7, 1992-all cloud the issue as to the fairness of the tenure hearing granted Petitioner.

But there is no question but that the Subcommittee reconvened on November 20, 1992 and interviewed Professor Atlas, requesting a letter from him relative to his apparently revised opinion of Petitioner without notice of either the hearing or the December 1, 1992 letter, which apparently [p. 5] constitutes the primary basis upon which tenure was denied. The unfairness of the proceeding violates basic concepts of a fair administrative hearing, required by California Code Civ. Pro. Section 1094.5.

Accordingly, Pomona College is directed by this Writ to reconsider the issue as to Peitioner's tenure. Petitioner is awarded costs.

Issues as to ancillary relief can be accomodated at a subsequent hearing upon notice of either counsel.

Finally, the Court notes that there appear to be interest on both sides subject to negotiation and perhaps further mediation may allow the parties to avoid further risks and the related costs of continuing this dispute.

Date: Nov 19 1998

Signed by William J. McVittie
Judge of the Superior Court

Note to Counsel: The Court regrets its recent illness, hospitilization, and extended stay from the courthouse resulting therefrom.

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Dr. Stanley O. Gaines, Jr., Archive: Date: 11/19/1998 Type: Court Order To: Andrew R. Corin vs. Pomona College From: William J. McVittie, Superior Court Judge, Los Angeles County Re: Granting Writ of Mandate, ordering Pomona to reconsider tenure denial Att: None

Dr. Stanley O. Gaines, Jr., Archive:
Date: 11/19/1998
Type: Court Order
To: Andrew R. Corin vs. Pomona College
From: William J. McVittie, Superior Court Judge, Los Angeles County
Re: Granting Writ of Mandate, ordering Pomona to reconsider tenure denial
Att: None