Filed: April 19, 2001

KEVIN MICHAEL MATTHEWS,

Plaintiff,

v.

OREGON STATE BOARD OF HIGHER EDUCATION,
acting by and through the
UNIVERSITY OF OREGON,
and DAVID FROHNMAYER, JOHN MOSELEY and LORRAINE DAVIS
in their official and individual capacities,

Defendants.

En Banc

On certified question from the United States Court of Appeals for the Ninth Circuit Order dated August 14, 2000; certification accepted August 29, 2000.

Honorable Alfred T. Goodwin, Susan P. Graber, and William A. Fletcher, Circuit Judges.

Argued and submitted January 4, 2001.

Donna Meredith Matthews, Eugene, filed the brief and argued the cause for plaintiff.

Richard Wasserman, Assistant Attorney General, Salem, argued the cause for defendants. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

DE MUNIZ, J.

Certified question answered.

DE MUNIZ, J.

This court accepted certification of the following question from the United States Court of Appeals for the Ninth Circuit.

"Whether under Oregon law the President of the University of Oregon may, without explicit statutory or regulatory authorization, delegate informally the authority to make final determinations regarding the denial of indefinite tenure."

See ORS 28.200 et seq. (describing certified question process); ORAP 12.20 (prescribing procedures for consideration of certified questions); see also Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991) (discussing factors court considers in exercising discretion to accept certified questions). For the reasons that follow, we conclude that the President of the University of Oregon (president) has statutory authorization to delegate informally final determinations regarding the denial of indefinite tenure.

We recite the factual and procedural history from the Ninth Circuit's certification order:

"In 1991, Kevin Matthews became an 'annual tenure' professor in the University's architecture department. In 1996, his sixth consecutive year in that position, Matthews applied to the University for a promotion to indefinte tenure. According to his complaint, Matthews previously had publicly criticized University officials for allegedly misusing and misallocating University money, and Matthews allegedly had been reprimanded for his accusations.

"In April 1997, in apparent recognition of the controversy surrounding Matthews's tenure bid, two professors wrote to University President David Frohnmayer to support Matthews's application and to request a meeting. Frohnmayer refused the meeting, writing that for him to 'interject [himself] at this point would not be appropriate.' He thus left the tenure determination to Provost John Moseley.[ (1)] By letter in June 1997, Provost Moseley, followed by Vice Provost Lorraine Davis, informed Matthews of Moseley's final decision to deny indefinite tenure.

"Subsequently, Matthews brought an action in the Circuit Court of the State of Oregon (Lane County) and alleged that the president's failure to make the final tenure decision gave rise to claims for deprivation of due process pursuant to 42 U.S.C.