DocketNumber: Appeals, No. 2175 C.D. 1986, 2176 C.D. 1986 and 2410 C.D. 1986
Judges: Barry, Colins, Craig, Crumlish, Doyle, MacPhail, Palladino
Filed Date: 1/27/1988
Status: Precedential
Modified Date: 11/13/2024
Opinion by
Pennsylvania State University (Petitioner) appeals an order of the Department of Labor and Industry, Bureau of Labor Standards (Bureau) requiring Petitioner to allow Nancy J. Treat, William J. Kienzle, Jr., and Steven Stack (Respondents) to examine certain tenure reports.
Respondents were employed as nontenured professors by Petitioner.
Respondents were denied tenure and thereafter sought permission from Petitioner to examine the reports prepared in connection with their tenure reviews, including those prepared by the peer review committees.
Hearings were held on April 11, 1984. The Hearing Examiner determined that the peer review committee reports constituted “performance evaluations” subject to inspection under the Act and that Petitioner was required to permit Respondents to examine all of the tenure reports. In its Final Decisions and Orders of June 26, 1986 and July 16, 1986, the Bureau adopted the findings and conclusions of the Hearing Examiner and affirmed his decision.
On appeal, Petitioner does not contest that portion of the Bureaus decision which allows Respondents to ex
Our scope of review of an administrative agency decision is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C. S. §.704.
Section 1322 of the Act requires an employer, at reasonable times and upon the request of an employee, to permit that employee to inspect his personnel files used to determine qualifications for employment, promotion, additional compensation, termination, or disciplinary action.
If maintained by the employer, any application for employment, wage or salary information, notices of commendations, warnings or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, and performance evaluations. The term ‘personnel file’ shall not include . . . letters of reference. . . . (Emphasis added.) 43 P.S. §1321.
Thus, in this case of first impression, the sole question presented for our review is whether the peer review committee reports constitute performance evaluations or letters of reference.
With these guidelines in mind, the Bureau in Hoagland concluded that peer review committee reports were performance evaluations where faculty members prepared these reports in connection with tenure eval
Petitioner argues that the decision in Hoagland is inapplicable to the instant case because the faculty members in this case voluntarily served on the peer review committees and were not required to do so as a condition of employment. Petitioner contends that because the faculty members serving on the committees have no supervisory responsibility over the tenure candidates and can only make tenure recommendations, the peer review committee reports constitute letters of reference.
In this case, the Hearing Examiner concluded, and the Bureau affirmed, that internal evaluations of an employees performance in areas related to employment, prepared by Petitioners employees and generated by Petitioner, were subject to inspection under the Act.
In order to review Petitioners contentions as well as the Bureaus decision, we must first examine the tenure procedures followed by Petitioner in denying Respondents tenure.
Tenure review at Petitioners Commonwealth Campuses involves a slightly different procedure. Initial review occurs at the Commonwealth Campus level where the Campus Promotion and Tenure Committee and Campus Director make recommendations. Positive and negative reviews are submitted to the Department level for further review. The Department Committee on Promotion and Tenure and. the Department Head review the candidate and transmit positive and negative reviews to the Dean of the College and the Dean of the Commonwealth Campus. If the Campus and .Department levels vote to deny tenure and both Deans concur, tenure is denied. If either the Campus or Department review results in a recommendation to award tenure, the College Promotion and Tenure Committee conducts a review. After the College Committee conducts its review, both Deans conduct reviews. A vote to deny ten
While we recognize that the faculty members serving on the peer review committees do so voluntarily and not as a condition of their employment, the procedures outlined above indicate that, once a faculty member chooses to serve on a peer review committee, such faculty member must participate in making a tenure recommendation, be it positive or negative. The peer review committee does not have the option of simply declining to make any recommendation whatsoever rather than submit a negative recommendation. Petitioners regulations state that each unit “shall provide evaluations to be included in the dossier.” (Emphasis added) (PS-23). These regulations indicate that the peer review committees were required to complete the evaluations, thereby lending further support to the Bureaus determination that the reports were performance evaluations.
The peer review committee reports in this case were not prepared at the request of the tenure candidate, but were generated as a result of Petitioners procedures and regulations. The reports were prepared by a designated group of tenured members of Petitioners faculty over which Respondents had no control or input. Given these considerations, Petitioners argument that the peer review reports are analogous to letters of reference is without • merit.
The fact that the faculty serving on the committees did not possess supervisory authority over the tenure candidates is not dispositive. Rather, the nature of the
This court has held that the construction of a statute by those charged with its execution and application is entitled to great weight and should not be disregarded or overturned except for cogent.reasons, and unless it is clear that such construction is erroneous. See Spicer v. Department of Public Welfare, 58 Pa. Commonwealth Ct. 558, 560, 428 A.2d 1008, 1009 (1981).
Finally, this court will not presume that the integrity or candor of the faculty members participating on the peer review committees will be adversely affected if we do not distinguish between service on a committee which is volunteered and service which is required. Rather, the balancing of an employers interest in the confidentiality of personnel files and an employees interest in inspecting those files is a matter for the sound discretion of the legislature.
Because the Bureau correctly concluded that the peer review committee reports constituted performance evaluations under the Act, the Bureau properly ordered Petitioner to allow Respondents to inspect those reports.
Accordingly, we affirm.
Order
- And Now, January 27, 1988, the orders of the Department of Labor and Industry, Bureau of Labor Standards in the above-captioned matter are affirmed.
Nancy J. Treat was employed in 1977 as an assistant professor of Individual and Family Studies at Petitioners Fayette Campus. William J. Kienzle, Jr. was employed in 1977 as an assistant professor of History at Petitioners Shenango Valley Campus. Steven Stack was employed in 1981 as an associate professor of Sociology at Petitioners University Park Campus.
Treat was denied tenure on June 14, 1983 with termination of employment effective June 30, 1984. However, by letter agreement of January 31, 1984, the decision to deny Treat tenure was rescinded and Treat was granted a four-year extension of her nontenured position in order to allow additional time for tenure consideration. Kienzle was denied tenure on March 25, 1983 with termination of employment effective June 30, 1984. Stack was denied tenure on May 1, 1984 with termination of employment effective June 30, 1985.
Act of November 26, 1978, P.L. 1212, 43 P.S. §1324. Section 1324 provides that the Bureau is authorized and directed to enforce the provisions of the Act as well as to make and enforce such orders as it deems appropriate so as to provide employees with access to records.
43 P.S. §1322.
We note that when the words of a statute áre not explicit, the intention of the legislature may be ascertained by reference to administrative interpretations of that statute. 1 Pa. C. S.' § 1921(c)(8). Further, in construing a statute, words and phrases shall be construed according, to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition. 1 Pa. C. S. §1903(a).
Tenure review involves an evaluation of the candidate in four areas:' teaching ability and effectiveness, research or creative accomplishment, scholarly performance and mastery of subject matter, and service to the university, public, and the profession. The Pennsylvania State University Policy Manual, Promotion and Tenure Procedures and Regulations (PS-23).
The tenure procedures which exist at the University Park Campus and the Commonwealth Campuses are the subject of a stipulation between the parties. Our summáry of tenure procedures, which follows, is drawn directly from the stipulation.