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ALBERT C. STAHELI v. ALLIE SMITH

AUGUST 23, 1989

ALBERT C. STAHELI
v.
ALLIE SMITH



BEFORE DAN LEE, P.J., SULLIVAN AND ANDERSON, JJ.

ANDERSON, JUSTICE, FOR THE COURT:

On February 26, 1986, Professor Albert C. Staheli (Staheli) filed suit in the Circuit Court of Lafayette County against Dean Allie Smith (Smith) alleging that Smith had defamed him in written recommendations against tenure and a pay raise, thereby, damaging his professional reputation. Smith filed a Motion for Summary Judgment on August 28, 1986. On March 30, 1987, final judgment was entered granting in full Smith's motion. Staheli raises four issues on appeal. In affirming, we address three of the four.

I.

 Professor Staheli arrived at the University of Mississippi (the university) in the fall of 1977 and began teaching as an Associate Professor of Geology and Geological Engineering. The Geology Department is part of the School of Engineering. Smith is or was the Dean of the School of Engineering.

 The policies and procedures on tenure at the university are set out in a university pamphlet entitled A Handbook for Faculty and Staff. With few limited exceptions, faculty members must complete a five-year "probationary" period before becoming eligible for tenure. "The status of tenure is reserved for members of the regular, full-time teaching or research faculty who merit the status of permanent members of a university faculty through their teaching, research or service at the University." According to procedure, once a teacher is eligible he may apply and submit his portfolio for consideration. Tenured members of the candidate's department review that portfolio and cast advisory votes. The chairman of the department then gives an independent recommendation. If he or she recommends against tenure the process stops, subject to appeal to the faculty senate.

 If the chairman recommends tenure, five more people review the candidate and his portfolio: the dean of the school of which the candidate's department is a part; the dean of the graduate school; the Vice-chancellor for Academic Affairs; the Executive Vice-chancellor; and, ultimately, the Chancellor. The tenure procedure provides that each person in this hierarchy is to recommend approval or disapproval and make "appropriate comment" before sending the application on to the next person. All administrators who were deposed agreed that this process is purely subjective. If the Chancellor disapproves tenure, the candidate may appeal to the faculty senate. However, after the senate decides the issue, the Chancellor is free to ignore that body's recommendation. The Chancellor's decision, then, is final.

 Staheli became eligible in the fall of 1982. He submitted his application and the Acting Chairman of the Department of Geology and Geological Engineering, who was also the only tenured department member, highly recommended Staheli for tenure. Dean Smith was the next person to make a recommendation. In an undated letter, which everyone agrees was read by a third person no later than December 28, 1982, Smith recommended against tenure. Smith commented on Staheli's performance in four areas: teaching; research and grants; service; and, additional information. The language in several instances was quite strong. However, because we decide this case on issues other than the defamatory nature of the words employed, we need not set forth the particulars.

 Every administrator after Smith recommended against tenure and the Chancellor denied tenure. Staheli appealed to the faculty senate, which in September, 1983, reviewed his file, and voted in favor of tenure. Against this vote, on October 21, 1983, the Chancellor again denied tenure.

 In the spring of 1983, Smith recommended against a pay raise for Staheli. Smith first wrote to the academic vice-chancellor on April 29, 1983. The record does not indicate when, if ever, this letter was read by the vice-chancellor or any third party. With minor exceptions not pertinent to the lawsuit or this appeal, a virtually identical letter was requested by and delivered to the Chancellor on May 12, 1983. On the same day, May 12, 1983, a different academic vice-chancellor read this letter in Smith's presence. These letters repeated the criticisms included in Smith's recommendation against tenure and included even harsher language.

 On May 17, 1984, Staheli filed suit in federal district court and included a pendent state law libel claim against all defendants. In an affidavit, Staheli avers that he did not have

 knowledge of the allegedly defamatory statements until members of the faculty senate told him in the spring of 1984 that his file included some derogatory comments. Staheli also claims that Dean Smith refused to let him see his tenure file. He did not see the recommendation and letters until August 29, 1984, when he obtained them through discovery in the federal litigation. The U.S. District Court for the Northern District of Mississippi declined to take jurisdiction of the pendent state law claim in November, 1985, and Staheli brought this suit on February 26, 1986.

 In his motion before the trial court, Smith claimed that summary judgment was appropriate for five reasons:

 1. Staheli was a public figure and offered no clear and convincing evidence of actual malice.

 2. The statute of limitations had run.

 3. Smith has governmental immunity.

 4. The statements were not defamatory as a matter of law.

 5. The statements were privileged because Staheli consented to the critical evaluation and to Smith's statement of his evaluation.

 The trial court determined that summary judgment was appropriate for the first three ...


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