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Salima Louise Silver Marriott v. Harry A. Cole, et al., Nos. 1161 and 1193, September Term, 1996

_________________________________________________________________ CONTRACTS -- EMPLOYMENT LAW -Theory of de facto tenure or reasonable expectation of continued employment not available when institution has a formal tenure policy. Formal tenure policies may be changed from time to time and no action will lie unless the change violates a contract right.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 1161 and 1193 September Term, 1996 ___________________________________

SALIMA LOUISE SILER MARRIOTT

v.

HARRY A. COLE, et al.

___________________________________ Eyler, Thieme, Sonner, JJ. ____________________________________ Opinion by Eyler, J. ____________________________________ Filed: May 2, 1997

The issue presented by this case is whether the denial of tenure by appellees, Harry A. Cole, et al., constituting the Board of Regents for Morgan State University (Board of Regents or Board) and Morgan State University (MSU), to appellant, Salima Louise Siler Marriott, a faculty member, violated appellant's contractual or constitutional rights. Facts Appellant was hired by MSU as an instructor on July 1, 1972, to teach several courses, including mental health. At that time,

MSU was under the jurisdiction of the Board of Trustees of the State Colleges. Appellant and MSU executed a "faculty member's

contract" for a term beginning July 1, 1972 and ending June 30, 1973. In September 1970, the Board of Trustees had adopted

Regulations and Procedures Governing Academic Freedom and Tenure (Regulations) in the State Colleges. The 1970 Regulations

provided that a faculty member who attained tenure could only be dismissed in accordance with stated procedures, including the right to counsel, the right to confront and cross-examine witnesses, and the right to summons witnesses and documents. Further, under the 1970 Regulations, tenure was automatically conferred upon any faculty member who completed the requisite probationary period of employment. In the case of instructors, Appellant's July 1972

the probationary period was seven years.

contract recited that appellant would be subject to the

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provisions of those Regulations, as they may be amended from time to time. The Preamble to the 1970 Regulations, however, stated

that "a faculty member's attainment of tenure shall in all cases be determined by the regulations of the Board in force at the time of his initial appointment." While there are gaps in the allegations and record, it appears to have been the practice of the parties to execute oneyear contracts in each year, through the academic year 1983 through 1984.1 In 1984, the parties executed a three-year Appellant alleges that

contract for the years 1984 through 1987.

the 1984-87 contract was the last written contract between the parties, and indeed, it is the last executed contract in the record. Appellant alleges, and appellees do not dispute, that with the exception of salary adjustments, the annual contracts for the four academic years subsequent to 1972 were identical to the 1972 contract. Further, although appellant is silent on the matter,

contracts for the 1980-81 and 1982-83 academic years, each of which were included in the record, also were substantially identical to the 1972 contract. In particular, each of these

contracts incorporated the provisions of the Board's Regulations as the same may be amended from time to time.

In particular, the allegations and the record considered together leave gaps for the academic years 1977-78, 1981-82, and 1983-84. 2

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Appellant taught continuously at MSU from July 1972 through July 1996, with the exception of a two-year educational leave for the purpose of completing her PhD.2 Appellant held the rank of

instructor throughout this time period up until August 20, 1990, when she was appointed assistant professor. On July 18, 1975, the Board of Trustees adopted Laws Relating to and Governing Policies and Procedures of the Board of Trustees of the State Colleges of Maryland (Policies), which included policies and procedures regarding the standard form of agreement for a faculty contract. The 1975 Policies provided

that faculty members could elect to be subject to a new form of faculty contract or continue under the old form, except that the attainment of tenure would be governed by the regulations of the Board of Trustees in force at the time of the initial appointment. college. Up until 1976, MSU had been an undergraduate

In 1976, MSU became a university, and its governance

vested in a Board of Regents. In May 1977, the Board of Regents approved Recommendations Regarding Promotion and Tenure which provided that persons holding the rank of instructor would not be eligible for consideration for tenure -- tenure would be reserved for the

Appellant states that her educational leave occurred in 1981 and 1982. The contracts included in the record indicate that her educational leave was for one year in the academic year 1980-81, and one year in the academic year 1984-85. While we note the discrepancy, it has no bearing on the issues before us. 3

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ranks of assistant professor, associate professor, and professor. The Addendum to the 1970 Regulations, apparently adopted in May, 1977, governed the granting of tenure to all faculty members appointed in September 1970 and thereafter, except for instructors granted tenure prior to May 1977. provided: The Addendum

"Faculty members holding the rank of Instructor shall This provision does not

not be considered for or granted tenure.

apply to Instructors who were awarded tenure before May 1977." Appellant did not attain tenure before May 1977. Appellant does

not allege that the 1977 Addendum was not communicated to her when adopted. The MSU faculty, in August, and again in September, 1978, adopted a Uniform Salary Promotion and Tenure Policy Statement (Faculty Statement). The Faculty Statement provided, in part,

for the granting of tenure for instructors and assistant professors appointed prior to the 1977-78 academic year, similar to those contained in the 1970 Regulations. Article 2,

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