THE UNIVERSITY OF MONTANA

This matter came before the undersigned Hearing Officer on July 23-24, 2004, when a 15-hour evidentiary hearing was held before a certified court reporter. Present at the hearing were: E. Edwin Eck, Dean of The University of Montana Law School; his counsel, Dennis E. Lind, Esq., Missoula, Montana; Professor Robert G. Natelson, Faculty Member, The University of Montana Law School, and his counsel Gregory G. Smith, Esq.

The Hearing Officer has been appointed by the President of The University of Montana, George Dennison, to act pursuant to both the Grievance Policy for Contract Administrators, Professionals, and Law School Faculty, and the University Grievance Discrimination Policy, to determine “whether there has been compliance with all relevant laws, rules, regulations, and policies by the Employer.” The Hearing Officer was selected by mutual agreement of the parties. The Hearing Officer was appointed to conduct an evidentiary hearing and act in a fact-finding role and to make recommended findings and conclusions to the President as part of the decision making and appeal process under the policies adopted by the Board of Regents.

The dispute(s) which gave rise to this proceeding involves rules and policies of The University of Montana Law School with respect to: (1) the interim appointment of an adjunct professor of law to teach the course of Constitutional Law for the 2004-2005 school year, and (2) the Dean of the Law School’s reliance upon the Faculty Appointments Committee adoption of a policy governing the selection of a permanent teaching position for the Constitutional Law course at the UM Law School during the 2005-2006 academic year, which policy would require that any present faculty member of the UM Law School desiring to teach that course be required to submit his/her name for consideration based upon a national search of applicants for that position.

The Grievant-Petitioner, Robert G. Natelson, has timely filed and pursued grievances under both grievance policies, and has duly and timely appealed the decisions of the Law School and the Provost to the President of the University. He is seeking redress of alleged violations of anti-discrimination policies and employment policies of the Law School.

After hearing all of the testimony and reviewing all of the evidence, the Hearing Officer recommends to the President that he adopt the following:

1. Professor Robert G. Natelson (“Natelson”) has been employed as Law Professor at The University of Montana Law School since 1987, and has tenure.

2. Natelson was employed to teach primarily Property Law courses. He has also taught other courses, including a Legal History course.

3. The Dean memorialized the custom and practice which allowed existing faculty members to seek a change in a new teaching assignment, without being required to participate in a national search, by virtue of a memorandum which he addressed to the entire faculty on February 3, 1998, which reads, inter alia, as follows:

* * * (P)lease advise me by 5:00 p.m. February 9 if you have interest in teaching any of the following courses next academic year and for the foreseeable future thereafter:

Finally, Professor William Crowley’s post-retirement contract will terminate at the end of next academic year. Please advise if you have interest in teaching Evidence beginning in the 1999-2000 academic year and for the foreseeable future thereafter. [Exhibit 27 (emphasis supplied).]

4. Natelson gave notice of his desire to teach the Constitutional Law course in 1998, by expressing that he wished to be appointed to such a teaching position when it next became open.

5. On August 28, 1998, Dean Eck advised the faculty that he would fill the open Constitutional Law teaching assignment by going through a national search for a well-qualified candidate. That search yielded Mark Kende who taught the course until the conclusion of the 2003-2004 academic year, when the Dean appointed an adjunct faculty member to teach the course in Professor Kende’s absence, declining to honor Professor Natelson’s open request to teach the course.

6. The current teacher of the Torts classes referred to in the February 3, 1998, memorandum is Bari Burke, who was then an existing faculty member who responded to the Dean’s invitation to seek, and obtain, a transfer to the open torts classes which she desired to teach. There are other current members of the Law School faculty who have been similarly assigned to vacant teaching positions which they desired, and which were offered to them.

7. As the result of the resignation of tenured professor Mark Kende, the teaching position of the Constitutional Law course at UM Law School has become an open position which needs to be filled in the 2004-2005 academic year, and permanently thereafter.

8. Professor Natelson sought to be assigned the open teaching position for Constitutional Law for the 2004-2005 academic year, relying upon what he termed prior custom and practice as expressed in the February 3, 1998, memorandum. Dean Eck declined to honor that requested re-assignment. Rather, he asked the Faculty Appointments Committee to consider this request and urged Professor Natelson to consult his colleagues.

9. Natelson was granted a sabbatical for the Spring 2005 semester. In 2002-2003, Natelson had previously appealed the denial of a sabbatical. While not explicitly overruling the denial of the sabbatical, the Provost made it clear that Natelson was entitled to one, particularly ahead of less tenured faculty members. The following year--2003-2004--his request for sabbatical was granted for the Spring 2005 semester.

10. The open Constitutional Law teaching position for the 2004-2005 academic year was not filled by instituting a national search, as was done to obtain Mr. Kende. Nor was it filled by assigning the course to a faculty member (Professor Natelson) who expressed a desire to teach it. Rather, the Dean planned, for various reasons, an interim appointment of either an adjunct faculty member or an emeritus faculty member of the Law School.

11. The Dean also decided to schedule the Constitutional Law course in the Spring semester of 2005, because it had been taught in the Spring of 2004, even though the course had been traditionally taught during the Fall semester of prior years. This action was challenged by Bari Burke, the current Chair of the Faculty Appointments Committee to which the Dean referred Professor Natelson’s request to teach Constitutional Law. Ms. Burke argued that Constitutional Law should remain a Fall semester course when it has been traditionally taught.

I have asked the Appointments Committee to consider the matter. I am hopeful that the Appointments Committee will meet to discuss the matter soon and make a recommendation to the faculty. Certainly you should make your case with your colleagues. [E-mail, Eck to Natelson, April 6, 2004 (emphasis added).]

As suggested by Dean Eck, Professor Natelson did seek an opportunity to meet with the Committee, but his request was denied. On April 19 the Committee then voted to recommend a new policy to the faculty.

13. Two days prior to the Committee’s adoption of the recommendation of a new policy, on April 17, Dean Eck wrote to the University Provost, Lois Muir, and stated:

Once the faculty acts upon the Appointments Committee proposal, Professor Natelson will be considered for a change in teaching responsibilities in accordance with the faculty policy. [Memorandum, Eck to Muir, April 17, 2004 (emphasis supplied).]

14. On April 19, 2004, while Natelson’s application was pending, the Faculty Appointments Committee voted to recommend a new rule regarding the process for filling open tenure-track teaching positions to the full law faculty for adoption. It provided, inter alia, that the appointment of a professor to fill such positions would be done through a national search, but that, under extraordinary circumstances, current UM faculty members could be given preferential consideration in the final appointment process if their credentials were superior. The faculty adopted the proposed policy on April 22, 2004.

15. According to the Dean, during the deliberations of the Faculty Appointments Committee, Professor Bari Burke stated that there was no existing faculty policy on the issue, and that the proposed policy would “fill a void” on the subject.

16. In subsequent correspondence relating to Professor Natelson’s appeal, Dean Eck described the policy recommended by the Faculty Appointments Committee and adopted by the faculty as a “new” rule in the sense that it created an explicit rule which had not previously existed. In his testimony on Friday, July 23, the Dean testified, in response to a question from the Hearing Officer, that the policy was “new.” However, at the Saturday, July 24, hearing, Dean Eck reversed himself, and stated that upon reflection the policy was not a “new” one, but merely a reiteration of the existing policy. The Hearing Officer finds that the policy was “new” in the sense that it was diametrically opposite the “collegiality” concept that was expressed in the February 3, 1998, memorandum of Dean Eck.

17. There is credible evidence that there has existed a past practice or custom of giving UM Law School faculty members preferential consideration in filling open teaching positions, and that such faculty members were granted their requests to be appointed to such open positions, as described in the February 3, 1998, memo. (Exhibit 27.)

18. The new “rule” adopted by the faculty would reverse the practice or custom previously accorded to UM Law School faculty members regarding requested teaching transfers. There is no evidence that a current or former UM Law School tenured faculty member was ever required to participate in a national search to fill an open position that was sought by that faculty member.[1] The evidence does indicate that faculty members in the past participated in abbreviated searches.

19. Although it was clear that the Dean intended to rely upon the faculty’s rule making to resolve Professor Natelson’s request to transfer, there is no evidence that the merits of his request were considered by the faculty committee or the entire faculty.

20. The new “rule” would have the effect, and was intended, to address and conclusively resolve in the negative Professor Natelson’s request for the appointment to the open Constitutional Law course which he had made before the new rule was considered or adopted. Moreover, the new rule would thereafter allow the UM Law School to rely upon a footnoted exception by which it could revert to filling open positions in the same manner that Professor Natelson has essentially described as the prior custom and practice. Therefore, it would be consistent with the new rule to allow a subsequent faculty member appointment to be made to an open position on the very same basis upon which Professor Natelson is currently being denied such an appointment.

21. Professor Natelson has offered evidence of his strong interest in Constitutional Law, by citing a number of law review articles he has written on the subject of Constitutional Law. He has offered evidence that he has developed a network of relationships with other constitutional law scholars throughout the country. He has offered their written recommendations for his appointment to teach the Constitutional Law course at UM. He has offered evidence that he has had a long-standing scholarly interest in the subject, as well as an advocacy interest which has been frequently expressed within the context of public debate in the State of Montana.

22. Professor Natelson has written much more extensively on Constitutional Law than has any other faculty member in his/her field of expertise or interest. (See Exhibit 32.)

23. There is no evidence that The UM Law School has concluded that Professor Natelson is not substantively well qualified to teach the Constitutional Law course.

24. The Dean of the Law School has indicated he plans to appoint an adjunct or emeritus faculty member on a temporary basis to fill the open teaching position of the Constitutional Law course, based in part upon Professor Natelson’s scheduled Spring 2005 sabbatical. Professor Natelson offered at the hearing to postpone his sabbatical to the following academic year in order to eliminate the scheduling problems which the Dean had been required to address in denying Professor Natelson the temporary teaching position.

25. In accordance with Board of Regents policy, Professor Natelson has regularly received annual student evaluations of his teaching at the Law School. The results are strangely contradictory. His student evaluations of the required Property law courses have been “poor,” consistently at the low end of the evaluation matrix. However, student evaluations of his Legal History course during the same academic year were described by the Dean as “excellent.” There are a number of possible reasons why this discrepancy exists, some of which may cast doubt on the accuracy of students who may evaluate on the basis of their own self-interest.

26. Professor Natelson videotaped a number of his Property Law classes and offered them to the Dean for his perusal, so that he could come to his own independent judgment as to Natelson’s teaching capabilities. However, Dean Eck did not ever look at those videotapes. Apparently the Assistant Dean sat in on some Natelson classes, but there was no evidence introduced of his opinions and conclusions about what he had observed.

27. The University of Montana History Department has a policy of collegiality which allows, as a matter of course, requested transfers of history teachers from one course to another within the Department, when a vacancy becomes open, before an outside hire is made to fill a position vacated as a result of the inter-department transfer.

28. Professor Natelson offered evidence of a number of instances when, as documented by newspaper letters to the editor or guest editorials, virtually the entire faculty of the Law School rebuked him for positions he had taken or statements he had made regarding extant legal controversies. In one example, each of the five members of the current Faculty Appointments Committee signed a letter, as did almost the remainder of the Law School faculty, criticizing the manner of Professor Natelson’s criticism of the Montana Supreme Court following its unanimous decision declaring the controversial CI-75, unconstitutional. (See, Guest Opinion, Law Profs Excoriate Natelson, Great Falls Tribune, February 1999.)

29. Professor Natelson submitted evidence of what he contends is discrimination against him on the account of his political beliefs and associations. He contends that his role and relationships among the faculty deteriorated dramatically after his first excursion into controversial political arenas in 1993, some six years after he came to the Law School as a practicing attorney from Colorado.

30. The Law School Dean and witnesses denied that their actions were motivated by political beliefs or considerations. They pointed out that a number of Law School faculty are also sympathetic to the Republican party and conservative issues. They point to Professor Natelson’s positive relationship with fellow faculty member Jeff Renz, one of the most politically prominent “liberals” on the faculty, as evidence that their actions towards Natelson are not politically motivated.

31. While the Dean and other faculty members deny that they are motivated by political considerations in their dealings with Professor Natelson, at the same time they readily acknowledged that there is a high degree of “personal animus” towards Professor Natelson by the Law School faculty generally. They pointed to Professor Natelson’s unwillingness to be a team player on the faculty, his thoughtlessness and intemperate actions and remarks towards other faculty members, and some of his personal attributes that are abrasive and frequently contentious.

32. Professor Natelson offered as evidence several letters of recommendation for his application to teach Constitutional Law in the 2004-2005 academic year. A letter of a former student, Teresa Molitor, who wrote to the Hearing Officer unsolicited, described Professor Natelson as displaying “consistently professional demeanor.” She also made reference to the fact, as had Professor Natelson, that in a recent letter from the Dean of the Law School, soliciting contributions from alumni, at least twelve UM Law School professors were lauded for their scholarly efforts, but Professor Natelson was not included, in spite of his numerous written articles, including writing for a “Top 20” law review journal at the University of Texas.

33. The Associate Dean at Case Western Reserve University School of Law, Andrew P. Morriss, wrote a lengthy and thoughtful letter in support of Professor Natelson’s application for the vacant Constitutional Law teaching position. Professor Morriss has a wide variety of administrative experience in law school governance, both as a faculty member and a member of faculty committees, and as an Associate Dean and involvement with the hiring process. He also participates with Professor Natelson in professional development in the field of Constitutional Law. He claimed that there is a “well established custom” among most law schools with whom he is familiar, that allows existing faculty to fill vacancies in course scheduling before looking outside the school. He contends that requiring the faculty to vote on teaching assignments is a repudiation of the concept of collegiality, and would not make the Law School an attractive place to work by faculty who were convinced that teaching assignments should not be an internal faculty function:

Finally, I must note that when I first learned of the method of course assignment being imposed in this instance by the University of Montana law faculty, I believed Prof. Natelson was playing a practical joke on me. It is, frankly, bizarre to assign courses based on a faculty vote. There are many issues on which the collective wisdom or consent of a faculty is needed. Their colleagues’ teaching assignments are not one of them. This invites petty, divisive behavior amongst a faculty where there are multiple candidates to teach a particular course. Reasonable people in such circumstances reach accommodations that maximize the happiness of everyone involved, particularly where, as here, to do so merely requires a minor change in a job announcement. This circumstance is even more surreal, however, since Prof. Natelson is competing against a “professor to be named later.” (Affidavit of Professor Andrew P. Morris, at p. 3.)

34. The Association of American Law Schools Law Deanship Manual (Nov. 1993), Ex. 1, provides the following with respect to the matter of law school governance. After discussing the authority and role of the faculty in some administrative areas, the authors state:

On the other hand, many administrative matters are in the domain of the dean, and the central administration should delegate sufficient authority to the dean so that he or she can operate efficiently and effectively. For example, authority with regard to budget allocation, faculty assignments, salaries, and incentives ought to be entirely in the dean’s domain. Also, the dean’s recommendations on appointments and promotions ought to command great respect with the university review being merely a matter of assuring that university standards are met. Continued secondguessing and overruling can demoralize any dean. (Emphasis supplied.)

1. There existed a custom and practice relied upon by Professor Natelson upon which he could reasonably expect that the request of a tenured-faculty member to transfer to another teaching assignment in the event that a teaching assignment became open would be honored.

2. There was clearly the existence of a practice within the Law School to allow existing faculty members to transfer to teaching positions left vacant by the exit of another faculty member. However, that practice must be recognized for what it truly is:

(a) The practice was not very extensive, nor had it been applied in any extraordinary number of instances. It had been aptly described in written form by the Dean in his February 1998 memorandum. However, it was not frequently invoked or relied upon in such an extensive and pervasive manner that it rose to the level of irrevocably binding a party to it.

(b) The practice was not so extensive or pervasive so as to constitute, of itself, an inviolate rule which had to be followed in each case. The practice was not so embedded in the governance of the law school that a Dean was forced to blindly follow it.

(c) The practice was, however, clearly and unambiguously stated in the form of a promise or assurance that tenured faculty would be given the opportunity to teach an open course assignment if such became available.

3. The custom and practice is more aptly and properly described and analyzed as creating a promissory estoppel upon which faculty members could rely when they sought to invoke the benefits and advantages of a rule which embodies a law school policy and practice regarding teaching assignments.

4. There is nothing in law, custom, practice, policy, or academic regulation that prevents a Dean or university administrator from announcing that a prior custom and practice will no longer be followed. The only issue is whether that decision, and announcement, are made before or after a faculty member seeks the advantage accorded by the promissory estoppel which he/she has relied upon. Once relied upon, the Dean or administrator has a commitment to follow through on the obligation and expectations which arise from the promised result.

5. The Dean’s appointment of a person who is not currently a faculty member, to teach a required course that is temporarily open, rather than to assign it to a tenured faculty member who seeks the temporary appointment, was contrary to the reasonable expectations of existing faculty members who relied upon the practice as articulated in Dean Eck’s February 3, 1998, memorandum.

6. The Dean’s February 3, 1998, memorandum clearly suggests, by its reference to new teaching assignments “next year and for the foreseeable future thereafter” that requests from existing faculty for both temporary and permanent teaching reassignments will be honored by the Law School Dean.

7. The manner in which Professor Natelson’s application to fill the open position was resolved, was both unfair and inappropriate under the circumstances:

(a) The Dean may have delegated away some of his authority to make even temporary teaching assignments which the Dean had historically made in the past;

(b) The new rule adopted by the faculty constituted a retroactive imposition of a new rule, which was imposed upon a pending application for a temporary teaching position that should have been addressed on its own merits, not by formulation of a new rule to indirectly address and decide Professor Natelson’s pending transfer request; and

(c) The new rule constituted a unilateral change in the reasonable expectations of a tenured faculty member, who had no meaningful opportunity to contest the decision-making process that the Dean vested the faculty to engage in, after the fact.

8. There is no good or compelling reason why Professor Natelson should be denied the opportunity to teach Constitutional Law during the 2004-2005 academic year.

9. Professor Natelson should be accorded that opportunity, from which he will derive the further opportunity to continue as the teacher of Constitutional Law “for the foreseeable future thereafter.”

10. The decision making processes with regard to the future, permanent teaching assignment of the Constitutional Law course, needs to be specially designed, or re-designed, to ensure all parties will be fairly treated by persons who have a lesser personal and emotional involvement than those who are currently involved in the process. Thus, a different evaluation process will be recommended. Additionally, the role of the Provost and President of the University may necessarily be more involved than would usually be the case in such matters.

11. Because of his findings and conclusions as stated herein, it is not necessary for the Hearing Officer to address or decide the claims of political discrimination.

Based upon the preceding Findings and Conclusions, the Hearing Officer respectfully submits to the President of The University of Montana the following Recommendations for a final and equitable resolution of the issues presented by this appeal:

1. That Professor Robert G. Natelson be assigned to the interim position as instructor for the Constitutional Law course at The University of Montana Law School for the 2004-2005 academic year.

2. That Professor Natelson will make himself available in the 2004-2005 academic year to additionally continue to teach the property law courses that he has instructed in the past, or not, as the Dean shall determine.

3. That Professor Natelson will defer his sabbatical until the 2005-2006 academic year. If he is the teacher of the Constitutional Law course during that academic year, he will take his sabbatical during the semester that he is not teaching the Constitutional Law course.

4. That in event that Professor Natelson is the teacher of the Constitutional Law course during the 2005-2006 academic year, the Law School will have to decide whether to consider assigning the Property and related law courses to an “open faculty line” for which the Law School must seek a new faculty member.

5. That Professor Natelson will continue to be under the direct departmental direction of the Dean of the Law School. For the purposes of evaluation of Professor’s Natelson’s teaching performance during the 2004-2005 academic year, an evaluation committee of three persons shall be selected for that purpose. One of the evaluation committee members shall be Dean Eck, or his designee. One of the evaluation committee members will be designated by Professor Natelson. The third member, who shall not have had any previous relationships or involvement with the parties, shall be designated by the Provost of the University.

6. That if Professor Natelson chooses to do so, he may record by audio or video fashion all or any portion of his Constitutional Law classes, which recordings will be made available to all three members of the evaluation committee, as well as interested members of the Law School faculty. He may use them for any purposes as are consistent with this recommended action.

7. In addition to his normal and regular authority and duties as President of the University, President Dennison will retain his role with respect to the issues arising from the grievances until a final decision is made regarding the permanent teaching assignment of the Constitutional Law course.

8. The evaluation committee shall make its written report and recommendation to the Dean of the Law School and the Provost to determine whether Professor Natelson should be appointed to be the teacher of Constitutional Law in the 2005-2006 academic year, and thereafter. That report should address:

• The quality and effectiveness of his teaching of the substantive law of the subject, including practice experience, and any other traditional considerations in evaluating the performance of a law school teacher;

• The quality and quantity of his academic research and writing contributions on the subject of U.S. Constitutional Law;

• A report from the Dean of the Law School addressing his experience with Professor Natelson’s cooperation and involvement in universally assigned faculty activities or programs, which fairly and uniformly require all faculty to contribute to the well-being and mission of the law school and its students;

• Any other traditional means and methods which are universally recognized as criteria to be used to determine the over-all effectiveness and competence of a teacher in a professional school of the university; and

• Reports or comments received by the committee from students, faculty, or other interested third parties shall also be included, and may given as much weight which the committee, in its application of even-handed discretion, chooses.

Based upon those criteria, the report must provide a recommendation whether Professor Natelson should be appointed to be the Constitutional Law teacher for the 2005-2006 academic year and thereafter (“permanent assignment”).

9. The recommendation relating to permanent assignment shall be supplied, on a strictly confidential basis, to those members of the faculty who have an appropriate need to know for the purposes of exercising their rights and obligations, as faculty members, to provide input into decisions pertaining to permanent teaching assignments.

10. The evaluation committee report and recommendation to the Dean and the Provost may state that with respect to the permanent teaching assignment of the Constitutional Law course, that Professor Natelson, based on his 2004-2005 performance and evaluation, is fully qualified to continue to teach Constitutional Law at the Law School for the 2005-2006 academic year, and beyond. Based upon that recommendation, and with the approval of the Provost, Professor Natelson shall be assigned to that permanent teaching position.

11. If the evaluation committee does not recommend a permanent assignment, then it may recommend that a nation-wide search be conducted in accordance with policies and procedures that had already been adopted by the Dean and the faculty. That recommendation shall be submitted by the Dean, with his own recommendations, to the Provost, who shall then either confirm or deny the nation-wide search, or impose certain conditions or restrictions on its scope. The Provost shall also have the right, based upon the evaluation committee’s report, to impose whatever degree of preferences, priorities or weight which she believes should be given to Professor Natelson’s experience and qualifications, as opposed to those of outside candidates for the position. With those conditions and limitations in mind, the Dean and the faculty shall then conduct and conclude the search process accordingly, and then determine whether the degree of preference given to Natelson by the Provost, based upon the evaluation committee’s report, outweighs or exceeds the qualifications of any outside applicants. The final selection shall then be made by the Dean and approved by the Provost, subject to review by the President.

In the view of the Hearing Officer, after careful consideration, custom and practice cannot be elevated to a substantive rule or governing concept within the context of this case, in which there is no contractual employment relationship between the parties that addresses the terms and conditions of employment. The Hearing Officer does not believe that it would be appropriate to create, or change, the duties and responsibilities of the dean of a university, or the head of a department, by mere reference to custom and practice. In technical terms, the “custom and practice” relied upon here is simply inadequate to create an enforceable obligation or the modification of an agreement. [See, generally, Elkouri and Elkouri, How Arbitration Works, BNA 6th Ed. (2003), Ch. 12, Custom and Practice, 605-630.]

However, that does not end the analysis. The custom and practice, while not binding in and of itself, became, in effect, the subject of a promissory estoppel, whereby the Law School created a clear and unambiguous understanding among its faculty that present faculty would be given the preferential opportunity to change a teaching assignment, if so requested by such a faculty member, to a vacant teaching position. That promise or assurance was relied upon by Professor Natelson, although he described it as a “custom and practice.” It was reasonably foreseeable that his reliance upon the promise of obtaining a requested teaching transfer, when an open position became available, encouraged and committed him to make himself a better and more thoroughly qualified teacher to teach about the new subject in which he has demonstrated so much academic interest. In other words, he has made a substantial commitment and investment, in both time and presumably money, to become an expert on Constitutional Law, in reliance upon the expectation that he could obtain reassignment to that course when it became vacant.

The memorandum written by Dean Eck on February 3, 1998, articulated clearly the nature of the promise that was made by him to faculty members. That writing was not a new concept or idea. It represented the prior experience and practice of the other Deans of the Law School, and it represented and described how other faculty members had been similarly treated.

Rigid adherence to custom and practice would denote that the Dean could not exercise his right to change the manner in which the subject of the custom and practice was applied. The Hearing Officer is troubled by the notion that the important role of a Dean can be undermined by the application of custom and practice to every action he takes.

Thus, the distinction must be carefully drawn: In the case of either a custom or practice, or a promissory estoppel, the person bound by the custom or promise can unilaterally change it by doing so prior to, or outside the context of a pending application by a faculty member who is seeking to obtain the benefits of the promise. However, when a faculty member affirmatively steps forward to seek the advantage previously promised, the Dean may not at that point decide to change the terms of the promise to something else. Stated another way, a custom and practice can be changed at any time and in any manner. However the terms of a promissory estoppel can be changed only when there is no pending application to seek the benefits of the promise. In other words, as to custom and practice, the rules may be changed in the middle of the game, but as to promissory estoppel they may not.[2]

The promise must not be breached by unilateral action of self-interested parties who would seek to impose new and changed rules upon the entire process after it was begun. Such a result would not be condoned by a court in the judicial review of administrative agency which engaged in retroactive rule making that changed the fundamental rights of parties who had relied upon a different rule. Neither should such a result be allowed to occur in the circumstances of the present case.

[1] The new policy provides that there may be exceptions, in “rare circumstances” when a current faculty member expresses an interest in an open position and “. . . is so well qualified that it is unnecessary to compare our internal candidates qualifications against outside candidates.” (Exhibit 2, Memo, April 19, 1994, from Appointments Committee, note 1).

[2] In Montana, the doctrine of promissory estoppel has been adopted in the form of Section 90 of the Restatement of Contracts, which provides:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Rest. Contracts (1932), s 90 at 110.

See, Keil v. Glacier Park, Inc., 614 P.2d 502, 506, 188 Mont. 455 (1980).