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decided: July 19, 1988.


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.

Author: Palladino

[ 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 supported by substantial evidence. 2 Pa. C.S. § 704.

I. Mootness

Petitioner first argues that Respondent is not entitled to examine the tenure reports because he is no longer an employee of Petitioner. Section 1321 of the Act defines "employee" as any person currently employed, laid off with reemployment rights or on leave of absence, but excludes one who is an applicant for employment. 43 P.S. § 1321. Although Petitioner is correct in its statement that Respondent is not currently an employee,

[ 118 Pa. Commw. Page 16]

Respondent was an "employee" under the Act at the time he requested and was denied access to the tenure documents. Further, were we to hold as Petitioner suggests, an employer could circumvent the provisions of the Act simply by firing an employee after he seeks to examine his personnel files or by delaying inspection until after the employee's contract expires. Such a result could not have been intended by the Legislature. See 1 Pa. C.S. § 1922(1).

II. Waiver

Petitioner next contends that Respondent should be deemed to have waived his inspection rights because his employment contract incorporated the provisions of Petitioner's tenure review policy (as outlined in the Faculty Handbook). Petitioner alleges that its policy has been to deny tenure candidates access to the tenure documents at issue in this case. Record at 69a. Thus, Petitioner reasons that Respondent voluntarily consented to this policy by entering into an employment contract with Petitioner.

In this case, the Hearing Examiner determined, and the Bureau affirmed, that there was no evidence that Respondent "intentionally and knowingly relinquished rights granted him by the legislature under the Personnel Files Act when he accepted employment." Hearing Examiner Report at 15. Having reviewed the record in this matter, we will not disturb that finding.*fn7

III. Performance Evaluations

Next, Petitioner argues that the tenure reports do not constitute "performance evaluations" but are "letters

[ 118 Pa. Commw. Page 17]

    of reference" not subject to employee inspection. 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. 43 P.S. § 1322. Section 1321 of the Act defines "personnel file" as:

If maintained by the employer, any application for employment, wage or salary information, notices of commendation, 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. . . .

43 P.S. § 1321. (Emphasis added.)

A. Reports By Co-Faculty Members

In this case, the Hearing Examiner determined that the tenure reports prepared by co-faculty members were performance evaluations. The Hearing Examiner concluded that whether the reports were prepared voluntarily or were mandatory was not dispositive.*fn8 Interpreting the Bureau's prior decision in Hoagland v. Lehigh University (Hearing Examiner Report of February 22, 1982; Final Decision of Bureau of February 24, 1982),*fn9 the Hearing Examiner found the reports in the

[ 118 Pa. Commw. Page 18]

    instant case to be performance evaluations where the reports were "[e]valuations of an employee's work performance submitted by co-workers under the direction, supervision, and control of the employer, and in accordance with the employer's procedures, instructions, and guidelines." Hearing Examiner Report at 13.

We find the Bureau's decision in the case at bar to be consistent with our recent decision in The Pennsylvania State University v. Department of Labor and Industry, Bureau of Labor Standards, 113 Pa. Commonwealth Ct. 119, 536 A.2d 852 (1988), wherein we held that peer review committee reports constituted performance evaluations even though service on those committees was voluntary and members of the committees had no supervisory responsibility over the tenure candidates. In Penn State, the peer review committee reports were generated as a result of the University's procedures and not at the behest of the tenure candidate. Further, the reports evaluated the tenure candidate in areas of teaching ability, research, and scholarly performance. Id. at 125, 536 A.2d at 855. Accordingly, we concluded that the reports were not letters of reference but performance evaluations. Based upon the considerations

[ 118 Pa. Commw. Page 19]

    set forth in Penn State, we agree with the Bureau's determination in this case that the tenure reports prepared by co-faculty members constitute performance evaluations.

B. Reports By External Scholars

Petitioner further contends that the evaluations submitted by the three scholars employed by other academic institutions are letters of reference. Petitioner argues that, pursuant to the Hoagland guidelines, these scholars were not under the control and supervision of Petitioner and could have declined to participate in the tenure review process.

In Hoagland, the Bureau found that evaluations submitted by individuals not employed by Lehigh University nor under the University's control and supervision constituted letters of reference. The Bureau in Hoagland noted that the tenure candidate retained some input over the selection of the individuals that would submit evaluations.

The Hearing Examiner distinguished Hoagland because the external scholars in the instant case received compensation from Petitioner.*fn10 The Hearing Examiner reasoned that the "expectation or realization of financial gain" brought the scholars under Petitioner's direction, supervision, and control. Hearing Examiner Report at 14. Thus, the Hearing Examiner concluded that the reports prepared by the external scholars also constituted performance evaluations under the Act. 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 discharged or overturned except

[ 118 Pa. Commw. Page 20]

    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). Because the Bureau correctly concluded that the tenure reports constituted performance evaluations under the Act, the Bureau properly ordered Petitioner to allow Respondent to inspect those reports.

IV. Academic Freedom Privilege

Finally, Petitioner argues that the Bureau's decision permitting Respondent to inspect the tenure reports in this case infringes upon Petitioner's constitutional privilege of academic freedom. Citing Equal Employment Opportunity Commission v. Franklin and Marshall College, 775 F.2d 110 (3d Cir. 1985), the Hearing Examiner recommended that the Bureau not recognize such a privilege. Hearing Examiner Report at 15. In EEOC v. Franklin and Marshall, the EEOC brought an action to enforce compliance with a subpoena duces tecum compelling disclosure of confidential peer review materials by the College.*fn11 The enforcement action arose out of a charge of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. The Third Circuit Court of Appeals declined to recognize a qualified academic freedom privilege,*fn12 basing its decision on Congress' intent to prohibit discrimination and concomitant refusal to exempt

[ 118 Pa. Commw. Page 21]

    academic institutions from Title VII's requirements.*fn13 775 F.2d at 114-15.

Petitioner contends that the decision in EEOC v. Franklin and Marshall is not controlling in this case because charges of unlawful discrimination were not made here. Petitioner further asserts that an examination of the legislative history of the Personnel Files Act does not indicate whether and to what extent the Legislature considered the impact which the Act would have on academic institutions and on the tenure review process, in particular. Thus, Petitioner argues that it is not clear that the Legislature intended the provisions of the Act to be applied strictly where the employer is an academic institution.

We agree with petitioner that EEOC v. Franklin and Marshall is not controlling. Further, we are not unmindful of Petitioner's concerns about the integrity and candor with which the tenure review process can be carried out. However, we do note that enactments of the General Assembly enjoy a strong presumption of constitutionality, with all doubts resolved in favor of sustaining the constitutionality of the legislation. Insurance Adjustment Bureau v. Insurance Commissioner of Commonwealth, 108 Pa. Commonwealth Ct. 418, 530 A.2d 132 (1987). The balancing of an employer's interest in the confidentiality of personnel files and an employee's

[ 118 Pa. Commw. Page 22]

    interest in inspecting those files is a matter for the sound discretion of the Legislature. The Pennsylvania State University v. Department of Labor and Industry, Bureau of Labor Standards, 113 Pa. Commonwealth Ct. 119, 128, 536 A.2d 852, 856 (1988). In enacting the Personnel Files Act, the General Assembly has not chosen to exempt academic institutions from the provisions allowing employees to examine their files. We will not disturb that decision.

Accordingly, we affirm.


And Now, July 19, 1988, the order of the Department of Labor and Industry, Bureau of Labor Standards in the above-captioned matter is affirmed.

Judge Doyle dissents.



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