Appeal from the Order of the Department of Labor and Industry, Bureau of Labor Standards, dated January 6, 1987.
Bruce D. Bagley, McNees, Wallace & Nurick, for petitioner.
Richard C. Lengler, Assistant Counsel, with him, Peter C. Layman, Chief Counsel, for respondent.
Judges Doyle, Palladino and Smith, sitting as a panel of three. Opinion by Judge Palladino. Judge Doyle dissents.
[ 118 Pa. Commw. Page 12]
Lafayette College (Petitioner) appeals an order of the Department of Labor and Industry, Bureau of Labor
[ 118 Pa. Commw. Page 13]
Standards (Bureau) requiring Petitioner to allow Richard K. Matthews (Respondent) to examine certain tenure reports.
Respondent was employed as a non-tenured professor by Petitioner.*fn1 Respondent was notified on March 12, 1984 that he would not be granted tenure. Respondent thereafter sought permission from Petitioner to examine reports prepared in connection with his tenure review. These tenure reports were prepared by the Head of the Department of Government and Law as well as several other tenured faculty members of that Department. Respondent also requested permission to inspect letters written by scholars of other academic institutions evaluating a manuscript authored by Respondent.*fn2
[ 118 Pa. Commw. Page 14]
Petitioner denied him access to the tenure reports. Respondent then filed a petition with the Bureau requesting the Bureau to invoke its enforcement powers under Section 1324 of the Personnel Files Act*fn3 (Act) and to order Petitioner to allow Respondent access to the tenure reports.
Hearings were held on September 26, 1984. The Hearing Examiner determined that the tenure reports constituted "performance evaluations" subject to inspection under the Act and that Petitioner was required to permit Respondent to examine the reports.*fn4 In its Final Decision and Order of January 6, 1987, the Bureau substantially adopted the findings and conclusions of the Hearing Examiner.*fn5
[ 118 Pa. Commw. Page 15]
On appeal, Petitioner contends that Respondent's right to inspect the tenure reports is moot because he is no longer an employee of Petitioner. Petitioner also asserts that Respondent is not entitled to exercise inspection rights because he waived those rights through his employment contract which incorporated the terms of the Faculty Handbook.*fn6 Petitioner further contends that the tenure reports do not constitute performance evaluations but rather are letters of reference not subject to inspection. Finally, Petitioner argues that the documents are protected from disclosure by an academic freedom privilege encompassed by the first amendment of the United States Constitution.
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 ...