Heard in the Court of Appeals March 4, 2015
REVERSED AND REMANDED.
Barry Nakell for petitioner-plaintiff-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Kimberly D. Potter, for respondent-defendant-appellee.
INMAN, Judge. Judges ELMORE and GEER concur.
Appeal by plaintiff from order entered 9 May 2014 by Judge Allen Baddour in Orange County Superior Court, No. 13 CVS 699.
Petitioner-Plaintiff Paul Frampton (" Frampton" ) appeals the trial court's order affirming the University of North Carolina at Chapel Hill's (" UNC's" or " the University's" ) final agency decision regarding his faculty grievance. On appeal, Frampton argues that UNC's unilateral decision in February 2012 to place him on leave without pay instead of following its own tenure policies and UNC's refusal to reinstate Frampton's pay once it initiated formal disciplinary proceedings in April 2013 were: (1) contrary to law; (2) unsupported by substantial evidence; and (3) arbitrary and capricious.
This case requires this Court, as it required the trial court and the University, to resolve an unusual and controversial dispute that tests the University's responsibilities as an employer of tenured faculty and as a steward of public funds. After careful consideration and review of the record, we conclude that the University failed to properly apply its policies for the protection of tenured faculty.
We reverse the trial court's order and remand for further proceedings.
Factual and Procedural Background
The material facts from which this case arose are largely undisputed. Frampton was a nine-month tenured faculty member in the Department of Physics and Astronomy who had taught at UNC since January 1981. On 23 January 2012, Frampton was arrested at an airport in Argentina and charged with attempting to smuggle two kilograms of cocaine in his suitcase. Although Frampton
was assigned to teach a physics course at UNC at that time, he had traveled to Argentina without notifying UNC and without making arrangements for another professor to cover the class. Ultimately, on or around 20 November 2012, Frampton was convicted of smuggling cocaine and sentenced to four years and eight months imprisonment in Argentina. UNC learned of Frampton's arrest on 26 January, over two weeks after the first scheduled class meeting of PHYS 832, a reading course on general relativity that Frampton was expected to teach during the spring of 2012. Frampton has, at all times, maintained that he is an innocent victim of an Internet scam involving an alleged romantic involvement with an Italian swimsuit model.
Within a week after learning of Frampton's arrest, UNC found qualified counsel in Argentina willing to meet with Frampton, and made two representatives from UNC available to meet with the judge and attorney handling Frampton's case. During this time, UNC maintained its hope, consistent with Frampton's assurances, that Frampton's legal troubles would be resolved quickly and that Frampton would be exonerated. In light of those expectations, UNC indicated its desire for Frampton to resume his employment with UNC upon his return.
On 17 February 2012, Executive Vice Chancellor and Provost Bruce Carney (" Provost Carney" ) wrote a letter to Frampton informing him that, due to Frampton's continued absence from his duties, and with no progress having been made toward his release, UNC would be requiring him to take personal leave without pay until such time as Frampton could " reassume [his] duties as a faculty member." Instead of pursuing disciplinary action through the " Trustee Policies and Regulations Governing Academic Tenure" (" the tenure policies" ), UNC treated Frampton as if he were rendered unavailable, using by analogy UNC's Faculty Services Illness, Major Disability, and Parental Leave Policy (" the faculty leave policy" ). The faculty leave policy states that, in cases of serious illness or major disability, a faculty member on nine months service " shall, upon his/her request, be granted up to sixty calendar days of paid leave in a fifty-two week period." An award of leave or denial of leave may be granted by the department chair and may be appealed to the provost, who makes the " final decision." Although Frampton received his full January and February pay and benefits, they were suspended on 1 March 2012. Thus, Frampton was paid for the first five weeks that he was imprisoned in Argentina.
The parties do not dispute that UNC could have initiated disciplinary proceedings against Frampton immediately upon learning of his arrest based on, among other reasons, failing to report for a scheduled class, traveling abroad without arranging to cover his job duties, and smuggling cocaine. These acts could fall within the scope of Section 603 of the Code of the University of North Carolina, which specifies permissible grounds for suspension (with or without pay), demotion, or discharge. The Code does not provide any presumption of innocence as a bar to action based upon alleged criminal behavior.
The tenure policies specify the procedural process for disciplinary actions regarding tenured faculty members. Initially, the provost notifies a faculty member in writing of the University's intention to suspend, demote, or terminate the faculty member. After providing such notice, the chancellor may reassign the faculty member or suspend him with full pay. Suspension without pay, which can be a form of discipline as the ultimate result of the disciplinary process, is not an option at this early stage.
A faculty member who disagrees with the provost's intended action can request a hearing before the faculty grievance hearing committee (" the Grievance Committee" ), which then schedules a hearing. Following the hearing, the Grievance Committee makes a
written recommendation to the chancellor as to what action UNC should take. The recommendation is advisory and not binding. The chancellor then issues his or her decision regarding what disciplinary action, if any, will be imposed on the faculty member. If the chancellor concurs in the Grievance Committee's recommendation that is favorable for the faculty member or otherwise reaches a decision favorable to the faculty member, his decision is final. However, if the chancellor declines to accept the Grievance Committee's favorable recommendation or concurs in a recommendation that is unfavorable, the faculty member may seek review of the decision by UNC's Board of Trustees.
The Board of Trustees' hearing on appeal from the chancellor's disciplinary decision is limited to determining whether the chancellor or the Grievance Committee " committed clear and material error in reaching the decision under review." Once the Board of Trustees makes its decision, the faculty member may appeal the decision to the Board of Governors of the entire North Carolina University system to determine whether the process or decision " had material procedural errors, was clearly erroneous, or was contrary to controlling law or policy."
I. UNC's Initial Decision to Place Frampton on Unpaid Personal Leave
In this case, after the provost notified Frampton that he would be placed on unpaid personal leave, Frampton filed a grievance challenging the decision to the Grievance Committee. The Grievance Committee heard Frampton's appeal on 6 ...