From: R.A. (Ron) Coulter, Idaho Employment Law Solutions
Date: July 6, 2009
Re: Parma Research and Extension Center (Parma) and the Consolidation and
Closure of Parma to Facilities in Caldwell, Idaho
Subject: Legal Memorandum In Re to Pursuing Legal Action to Include Seeking
Injunctive Relief Against the University of Idaho (University).
Legal Memorandum
Issues Presented
I. Does the University's action constitute a violation of Idaho State Board of Education (ISBE) policy?
II. Is there a significant enough injury to warrant filing a preliminary injunction?
III. Has the University violated the due process rights of the faculty and staff at Parma?
IV. Did the University violate the faculty and growers contracts at Parma?
V. Have the tenured professors suffered an adverse employment action despite the University retaining their jobs?
SUMMARY CONCLUSIONS
I. Yes. The ISBE requires that when an instructional program worth over 250,000
dollars is consolidated or discontinued the ISBE must approve. The Idaho Statesman
revealed that the College of Agricultural and Life Sciences will make up a one million
dollar deficit by closing Parma. Furthermore, there is no justification, based on the
J Throughout this document I will refer to tenured professors, which are the six professors who are being transferred to Caldwell. These professors include Dr. Saad Hafez, Dr. Esmaeil Fallahi, and Dr. James Barbour. Non-tenured professors designates staff that have worked at Parma for over 3 years but are on a yearly contract basis with the University. Classified employee refers to all other technical and support staff at Parma.
ISBE's five criteria of quality, duplication, centrality, demand, and resources, for closing Parma. The staff at Parma are highly qualified, who operate efficiently, are an economic boon to the University. As a result, the University's actions constitute a violation of ISBE policy and should not proceed with its closure and consolidation of Parma.
II. Yes. A preliminary injunction in this case will require proof of waste, great injury, or irreparable injury. There is a case for irreparable injury based on the numerous dollars lost from federal and industry grants which cannot be recovered when Parma is closed. Even if a case for irreparable injury cannot be made, great injury can also be shown based on inability to research, significant cuts to staff and elimination of all technical staff. Additionally a security may be required at the judge's discretion.
III. Yes, in multiple ways. Numerous due process violations have occurred from consolidating Parma with the Caldwell Research and Extension Center (Caldwell) and elimination of all technical and support staff at Parma. The University has stated that only the six tenured professors from Parma will have jobs after December 31, 2009. The non-tenured professors can only be terminated under specific grounds, either adequate cause or be notified that their contracts will not be renewed. The University must notify a non-tenured professor that he will not have his contract renewed within a certain timeline under ISBE rules. The University has failed to notify the non-tenured faculty within the time constraints set by the ISBE, therefore the University cannot sever the non-tenured professors until requirements are met.
Additionally, the classified employees have had their procedural due process rights violated because they have not been given the appropriate dismissal procedure as mandated by the Faculty Staff Handbook (FSH). The FSH requires that the University go through a process of allocating Retention Points (Points) to all affected classified staff,
and that preference be given to staff with the most Points. Those members with the
fewest Points are dismissed first. Because the University has not adhered to the policy,
the University has violated the employees' procedural due process rights? Furthermore,
the Blue Ribbon Commission (Commission) that Dean John Hammel (Dean) used to
close Parma is not an ISBE approved method for closing an instructional program) which
is a potential violation of due process.
Finally, all of the non-tenured and classified employees have a property interest at
stake. The employees are not at-will employees, meaning that they have a reliance on
their wages and employment provided by the University. As long as the procedures for
removing these employees have not been followed, the employees retain an interest in
their wages and employment. Because the employees are under the authority of the
University and are paid through the University, they have a property interest that is
protected by the Idaho and United States Constitutions.
IV. Yes. The University will breach its contracts with the tenured professors and
growers. The University is required to deal in good faith with its employees. The
tenured professors are being moved from Parma to Caldwell, where the professors say
their research work cannot continue.However, the University has a requirement that the
tenured professors do research to satisfactorily complete their jobs. If the University requires that the professors do research, but does not provide the tools, equipment, or location for the tenured professors to do such work, then the University has set the tenured professors up for failure. This is a breach of the covenant of good faith and fair dealing.
The University breached its implied contracts with the growers. Parma does research that is invaluable to growers by testing numerous disease and infestation conditions on crops. Then the tenured professors hand that information to the growers in Idaho so that the growers can better prepare their crops for the coming season. The growers then compensate the professors with grants. Even though this arrangement has no written instrument to document the practice, the actions between the Parma staff and the growers are sufficient to establish an implied contract of services between the University and the growers. By closing Parma, the University breaches this contract allowing the growers to sue for damages due to breach of the implied contract.
V. Yes. The tenured professors are keeping their jobs but the University is constructively demoting them. The University has stated to some of the tenured professors that they will keep their jobs but be unable to do the same kinds of research and scholarly work. Constructively, the University is demoting the tenured professors by keeping the professors' pay but eliminating their status and their ability to research which gives those researchers fewer responsibilities than their usual work role. As a result, the University has effectively demoted the professors and the professors have suffered an adverse employment action making the University liable for damages.