Opposition Brief — Peacock v. Board of Regents of Universities & State Colleges

TABLE OF CONTENTS

Page

Re etn teas eae Oe ere hae a ig SAC

Counterstatement of Questions Presented ....... 2

Counterstatement Of the Case ........3... 2

Reasons for Denying the Writ ..... . ‘gt Ca ea es 3

r

SUR Nera hoe See eho lg eet Bere ge 5

Appendices Index ..... er te ee or ed ee ee 6

IN x ie hae 5 ee St gh iy Babs he est te A-1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1388

ERLE E. PEACOCK, JR..,

Petitioner,

v.

BOARD OF REGENTS OF THE UNIVERSITIES AND STATE

COLLEGE OF ARIZONA; JACK R. WILLIAMS, WELDON P.

SHOFSTALL; PAUL L. SINGER, SIDNEY S. WOODS, GORDON D.

PARIS, JAMES E. DUNSEATH, MARGARET M. CHRISTY, KENNETH

G. BENTSON, RALPH M. BILBY and RUDY E. CAMPBELL, each of

the foregoing individually and in his or her capacity as a member of the

Board Of Regents Of The Universities And State College Of Arizona;

JOHN LENTZ and NORMAN SHARBER, each individually; JOHN P.

SCHAEFER, individually and in his capacity as President of the Univer-

sity of Arizona; MERLIN K. DU VAL, individualty and in his capacity

as Vice President for Health Sciences and Acting Dean of the College of

Medicine, University of Arizona; and DOUGLAS H. LINDSEY, individ-

ually and in his capacity as Acting Head of the Department of Surgery,

College of Medicine, University of Arizona,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 520

F.2d 1324, as Peacock v. Board of Regents of the Universities

and State College of Arizona. The first opinion rendered by

the District Court for the District of Arizona entitled ORDER

RE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNC-

TION made by the Honorable Howard B. Turrentine, United

States District Court Judge, is reported in 380 F. Supp. 1081.

The second opinion rendered by the same judge entitled

ORDER DENYING PETITIONER’S MOTION FOR PRE-

LIMINARY INJUNCTION AND/OR SUMMARY JUDGMENT

which will not be reported, appears as Appendix A herein.

Counterstatement of Questions Presented

1. Whether, under the First and Fourteenth Amendments a

tenured professor in a state university college of medicine

who also serves in a nontenured administrative capacity as

Head of the Department of Surgery may be suspended with

pay from his administrative assignment pending a due process

administrative hearing.

2. Whether in determining if a post-suspension but pre-

termination hearing is sufficient to satisfy due process require-

ments, the trial Court is permitted to balance the university’s

interest in the prevention of harm to and efficient administra-

tion of the medical school and the university hospital against

the employee’s interest in a hearing before rather than after

he was suspended with full pay from performance of duties as

department head.

Counterstatement of the Case

It is the position of respondents that the Orders of District

Judge Turrentine and the opinion of Judge Koelsch of the

Circuit Court of Appeals adequately and effectively sum-

marize the allegations of the Complaint and the evidence

adduced at the hearing and correctly isolate and define the

issues.

REASONS FOR DENYING THE WRIT

1. The decision below does not in any way conflict with

any decision of the Supreme Court of the United States. It is

in complete conformity on all issues with all of the applicable

cases cited by petitioner and discussed by Judge Koelsch in

his opinion.

2. The decision below does not conflict with the decision

of the Seventh Circuit in Hostrop v. Board of Junior College

District No. 515, 47 F.2d 488, 494-495 (7th Cir. 1972).

Although factually similar, Hostrop is readily distinguishable

from the instant case. Hostrop reached the Seventh Circuit

Court of Appeals upon a dismissal of the complaint by the

District Court for failure to state a claim upon which relief

could be granted. Hostrop, President of a junior college circu-

lated an ethnic studies proposal that might have offended the

“sensibilities” of the Board that hired him. The publication of

the memorandum was mentioned as being a prime reason for

Hostrop’s subsequent termination, although he was told that

he would be fired without any notification of the charges

against him. Hostrop’s complaint concluded that the alleged

facts showed a deprivation of his right to free speech and a

denial of due process of law, and asked that the Court order

the college to give him a full and complete hearing, enjoining

the defendants from replacing him with another person as

president, and declare that his dismissal violated his First

Amendment rights. The United States District Court dismissed

the complaint for failure to state a claim upon which relief

can be granted. The Circuit Court in reversing say: “Having

found that plaintiff has asserted protected interests that are

entitled to due process procedural safeguards, we must bal-

ance the interests of the state against those of the individual

to determine the form of hearing that Dr. Hostrop is entitled

to before his termination.

There are thus two important distinctions between Hostrop

and Peacock. In Hostrop the complaint had been dismissed

without a hearing, so there was no basis upon which the

Court could balance the opposing interests. In Peacock, the

District Court issued its order after four days of hearing and

taking of factual testimony upon which to balance all of the

competing interests.

In Hostrop, the Seventh Circuit ordered a pretermination

hearing. In the instant case the District Court reinstated

Peacock and granted him a pretermination hearing, the results

of which were part of the record before the Ninth Circuit.

(See Appendix B herein.)

The Ninth Circuit in affirming the District Court simply

decided that under the circumstances of this case the rein-

statement with option to suspend with pay pending a college

hearing satisfied the requirements of due process and that

therefore the Court committed no error in limiting its injunc-

tion.

The decision below turns upon its own facts that will affect

few others than the litigants. In the Circuit Court’s view, the

District Court properly balanced the equities and permitted a

post-suspension hearing with pay. Nevertheless, it was in fact

a pretermination hearing. The Court held that the potential

disruption greatly outweighed the limited interests of the

plaintiff in a presuspension hearing. Moreover, the plaintiff

has an adequate remedy at law for money damages, if any,

that may appear after a full trial.

CONCLUSION

There is no necessity at this stage of this case for issuance

of a writ of certiorari. On the contrary, the interests of justice

would best be served by permitting this case to proceed to

trial as quickly as possible. Thereafter, any remaining issues of

moment may be considered by this Court. The petition

should therefore be denied.

Respectfully submitted,

BRUCE E. BABBITT

ATTORNEY GENERAL OF ARIZONA

JACK J. RAPPEPORT

ROBERT O. LESHER

WILLIAM R. JONES, JR.

Special Assistant Attorneys General

BY jours (Roppypnt

JACK J. RAPPEPORT

205 North Bentley Avenue

Tucson, Arizona 85716

Counsel for Respondents

6

APPENDICES INDEX

Page

APPENDIX A

Order Denying Plaintiff's Motion

for Preliminary Injunction and/or

Summary Judgment by The Honorable

Howard B. Turrentine, United States

ees GS Pn A ce ew a ws A-1l

APPENDIX B

Report on Removal of Dr. Erle E.

Peacock, Jr. as Head of the

Department of Surgery by The

Committee on Academic Privilege

and Tenure, August 20,1974 ......... A-11

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ERLE E. PEACOCK, JR., ) (CIV. 74-123 HBT

Plaintiff )

) ORDER DENYING

= : PLAINTIFF’S MOTION

BOARD OF REGENTS OF ) FOR PRELIMINARY

THE UNIVERSITIES AND __+) INJUNCTION AND/OR

SUMMARY JUDGMENT

STATE COLLEGE OF )

ARIZONA: et al., )

Defendants. )

Plaintiff has filed a motion for a preliminary injunction or,

in the alternative, for summary judgment regarding Count V

of plaintiff's First Amended Complaint.

Count V of the First Amended Complaint alleges that the

University of Arizona’s faculty dismissal procedures fall short

of minimum due process, that defendants DuVal, Schaefer,

and Lindsey failed to comply with the University’s faculty

dismissal procedures, and that plaintiff's dismissal has been

initiated as reprisal for public statements, which reprisal vio-

lates the First Amendment to the United States Constitution

applied to the states through the Fourteenth Amendment.

Plaintiff's motion for preliminary injunction or, in the

alternative, for summary judgment rests on three grounds:

1. That the dismissal procedures of the University of

Arizona violate procedural due process;

2. That the defendants have failed to comply with the

University’s dismissal procedures; and,

A-2 ©

3. That the dismissal proceedings against plaintiff cannot

proceed until plaintiff has received a due process hearing

regarding his suspension.

Preliminary Considerations

In considering a request for a preliminary injunction, a

court must weigh:

1. The threat of irreparable harm to the petitioner if the

injunction is not granted;

2. The injury that granting the injunction would inflict on

the opposing party;

3. The probability that petitioner will succeed on the

merits at the subsequent trial; and,

4. The larger public interest.

The above factors were enumerated in this court’s Order of

May 3 in connection with a previous motion for preliminary

injunction in this same case. That Order is hereby incorpo-

rated by reference particularly in regards to its discussion of

the background to this litigation and the facts relevant to

plaintiff's complaint.

The University’s Dismissal Procedures Appear

to Meet Minimum Due Process Requirements

It is enough to answer almost all of plaintiff's arguments to

merely quote from the University’s General Faculty Bylaws,

Revised to September 1966.

Plaintiff contends that procedural due process requires that

the notice of charges be sufficiently detailed to permit the

individual to adequately respond. Section 12(b)(iia) of the

Faculty Bylaws requires “Service of notice of hearing with

specific charges in writing. ...”

A-3

Plaintiff next contends that procedural due process requires

that the individual with a protected interest be given notice,

in advance of the hearing, of the names of witnesses against

him and the nature of their testimony. Section 12(b){iiX(b)

provides that the faculty member whose dismissal has been

recommended has “A right to the names of the witnesses and

of access to documentary evidence upon the basis of which

the dismissal is sought. Adjournments shall be granted to

enable either party to investigate evidence as to which a valid

claim of surprise is made.” While the Bylaws do not expressly

provide for disclosure of the testimony of the proposed wit-

nesses, this court believes that the conjunction of (ii)(a)

requiring specification of charges with (ii)(b) requiring the

disclosure of the names of the witnesses supplemented by

(ii(b)’s safeguard against surprise comports with minimum

due process,

Plaintiff further contends that procedural due process

requires the right to cross-examine adverse witnesses. Section

12(b)(ii(e) provides the faculty member whose dismissal has

been recommended with “A right to confront and cross-

examine witnesses against him.”

Additionally, plaintiff contends that procedural due process

requires an open hearing. Section 12(b)(ii) states that “The

hearing shall be a closed hearing unless the appellant requests

a hearing open to the University.”

Plaintiff further contends that due process requires that the

hearing be before a fair and impartial tribunal. Section

12(b)(i) describes the composition of the Committee on

Academic Privilege and Tenure [CAPT] before whom dismis-

sal recommendations are finally heard once it becomes

apparent that the customary administrative channels and the

Committee on Conciliation are not able to resolve the dispute.

A-4

CAPT consists of three faculty members. One member is

appointed by the University Committee on Committees, one

by the President of the University, and one by these two

members. The appointment is for three years, the terms of

office are staggered, and members are eligible for reappoint-

ment. This court believes that CAPT has “apparent

impartiality.” Hostrop v. Bd. of Junior College Dist. No. 515,

etc., Ill, 471 F.2d 488 (7th Cir. 1972). Nothing before this

court at this time indicates that the presidential appointee is a

mere instrument of the President or that he is so tainted with

bias by the mere fact that he is the President’s appointee, that

his participation in plaintiff's dismissal proceedings would

make a sham and:a farce of the hearings. At this stage, this

court refuses to impugn the motive or character of any

tenured faculty member. It is neither self-deluding nor naive

for this court to assume on the present state of the record

that the members of CAPT will act in ways intended to

afford plaintiff the traditional safeguards of due process.

Greene v. McElroy, 360 U.S. 474, 507 (1959).

Finally, plaintiff contends that the University’s dismissal

procedures are a “mockery” of due process in that the

decision of CAPT is only a recommendation by CAPT to the

President of the University. Mr. Justice Marshall, concurring

and dissenting in Arnett v. Kennedy, 42 U.S.L.W. 4513 (April

6, 1974), wrote that “for the hearing to be meaningful...

{the hearing officer’s] decision [must] be entitled to some

weight.” The Ninth Circuit recently had before it a case in

which the President of a University refused to follow the

recommendation of the University’s Hiring, Retention and

Tenure Committee. While the specific issue was not before the

court, had such a procedure made a “mockery” of due

process the facts of the case would almost have compelied

A-5

some indication of disapproval. Jablon v. Trustees of the

California State Colleges, et al., 482 F.2d 997 (9th Cir. 1973).

This court has not found, nor have plaintiff’s counsel offered,

authority for the proposition that the decision of the officer

or collegiate body before whom the hearing is held must be

binding on the President of the University.

It is difficult to understand how the University’s dismissal

procedures could fail to satisfy even those intert or finding

fault at any cost. The University’s dismissal procedures cer-

tainly satisfy this court’s sense of rudimentary fairness and

such fairness is what due process requires. Plaintiffs motion

for preliminary injunction or, in the alternative, for summary

judgment on the grounds that the University’s dismissal pro-

cedures fall short of minimum due process is hereby denied.

Defendants Have Substantially Complied with

the University’s Dismissal Procedures

Plaintiff has not been dismissed as Professor of Surgery at

the University of Arizona. Plaintiff has, however, been sus-

pended with pay pending the outcome of hearings scheduled

before CAPT regarding his recommended dismissal. Plaintiff’s

contention, therefore, in his motion for a preliminary in-

junction is that the dismissal proceedings have been

improperly initiated and that they must therefore be enjoined

until such time as the initiation conforms to the University’s

rules and regulations.

Chapter VIII of the Faculty Manual, 13th ed., August

1973, contains the provisions relevant to the initiation of

dismissal proceedings. Section 8.07 (a section under the head-

ing “Academic Appointments”) states that a department head

or dean shall designate a committee of at least three tenured

faculty members to advise him before making his recommen-

‘ A-6

dation as to a faculty member’s “appointment, reappoint-

ment, promotion, granting of tenure, dismissal, or non-

retention. ...” Section 8.19 (a section under the heading of

“Release and Dismissal”), however, authorizes any University

official to recommend the dismissal, but only the dismissal, of

a faculty member. Once the recommendation has been made,

Section 8.20 provides the faculty member whose dismissal has

been recommnded with the right to request an investigation —

either by a committee of at least three faculty members,

appointed by the dean of the relevant college, or by the

Committee on Conciliation. |

Plaintiff argues that the above procedures were violated in

that:

1. His dismissal was “requested” and not “recommended”;

2. Defendant Lindsey, who requested the dismissal, did not

select a committee of three faculty members to advise him

prior to requesting dismissal; and _ |

3. Defendant Lindsey was not the Head of the Department

of Surgery nor was he a dean of any college.

Since this court’ views the Faculty Bylaws as requiring

specification of charges, this court will treat plaintiff's conten-

tion that he has not been furnished with a specification of

charges sufficiently detailed to permit him to adequately

respond as a fourth allegiation of noncompliance.

This court views the distinction between “request” and

“recommendation” as inconsequential. Similarly, plaintiff's

argument that University procedures were violated in that the

person requesting the dismissal, Dr. Lindsey, was not a head

of a department or dean has little merit. First, Dr. Lindsey

was “Acting Head” of the Department of Surgery. Second,

the University rules do not limit the power to recommend

dismissal to deans or department heads. See Section 8.07. An

x

-

‘

A-7

i

“Acting Head” is, if not a “Head” within the meaning of

Section: 8.19, a “University official” within the meaning of

Section 8.07.

The defendants concede that University biiscabanis were

‘not followed in respect to the convening of a three-member

panel to advise the dean, head, or other University official

regarding the dismissal of plaintiff here. This court’s May 3

Order describes the conditions at the University of Arizona,

College of Medicine at the time plaintiff's dismissal was

requested. The May 3 Order’s recitation of facts is, in keeping

with the character of these preliminary proceedings, tentative;

there has not yet been a plenary hearing. Nevertheless, it is

this court’s view at this stage of the proceedings that the same

‘extraordinary circumstances which appear to have existed at

the College of Medicine and which justified plaintiff's

immediate suspension with pay also might justify the devia-

tion from University procedure complained of here.

Furthermore, the University endeavored to correct its error.

Shortly after Dr. Lindsey requested plaintiff's dismissal, the

University’s Executive Vice President appears to have discover-

ed the error in procedure. Having discovered the | error, a

three-member panel was convened before which certain

charges were presented for their advice with respect to

whether those charges, if proved, would constitute unprofes-

sional conduct of a sufficiently serious nature to warrant

dismissal. The panel advised that. the charges if supported

would warrant dismissal. Plaintiff complains that the panel,

convened after the fact, was merely used to ratify a prior

decision; that the well was poisoned by Dr. Lindsey’s request

for dismissal without the benefit of prior consultation. Since

the University’s rules and regulations provide that the head,

dean or other University official contempiating recommending

dismissal creates the well, i.e., convenes a panel of any three

é ‘

A-€

faculty members, the error complained of here appears at this

stage to have been harmless. The breach of the University’s

rules and regulations did not substantially compromise the

integrity of the quasijudicial procedures of the University of

Arizona.

Finally, were this court to accept plaintiff's argument

regarding the significance of the failure to convene the

advisory group, how could the University ever correct an

error? One could view the situation presented here as having

involved a false start: When Dr. Lindsey requested plaintiff's

dismissal, that act might well have had no effect because it

failed to comply with Section 8.07. However, after the panel

was consulted Section 8.07 had been complied with and the

requested dismissal could be deemed to be effective from that

time. In short, plaintiffs contention that the University’s

failure to initially convene the three-member advisory panel

now prevents the University from going ahead with hearings

regarding plaintiff's dismissal, hearings which as discussed pre-

viously meet the requirements of due process, is hereby reject-

ed. .

Finally, plaintiff contends that the charges of which he is

accused have not been specifically enough disclosed to pernvit

him to respond. The various allegations against plaintiff are

contained in Dr. Lindsey’s letter of February 9, 1974, and

Dr. DuVal’s ‘letter of February 19, 1974. The February 9

letter enumerates three incidents which in Dr. Lindsey’s

opinion substantiated the charges of disrupting the activities

of the Department of Surgery, making false statements to the

Acting Head of the Department thereby impeding the func-

tioning of the Department, and making reckless statements

impugning the honesty, reputation and motives of the

President of the ‘University, the Vice President for Health

f

A-9

Sciences and several other University officials.

This court believes that the accusations made by

Dr. Lindsey in his February 9 letter are specific enough to

allow plaintiff to properly prepare his defense. They are not

so vague as to make effective refutation impossible.

Plaintiff Is Not Entitled to Separate

Suspension Hearing

“If the employee actually threatens to disrupt the

operation of the office, he could be put on administrative

leave or temporarily assigned to a less sensitive position

pending his hearing... .” J. Marshall, concurring and dissent-

ing Arnett v. Kennedy supra.

“One must also copsider another type of cost to the

Government if preseparation hearings were providied—the

necessity of keeping a person on the scene who might injure

the public interest through poor service or might create an

uproar at the work place. However, suspension with pay

would obviate this problem.” (Emphasis added.] J. White,

concurring and dissenting, Arnett v. Kennedy, supra.

At this preliminary stage of the proceedings, it is this

court’s view that for plaintiff to continue as Professor of

Surgery would seriously threaten the integrity of the College

of Medicine. It was with a view towards the larger public

interest, i.e., the welfare of the University and the Hospital

and the College of Medicine, that this court decided in its

May 3 Order that plaintiff's suspension was a proper exercise

of the University’s inherent powers to maintain the minimum

order necessary for spirited and robust debate and inquiry.

Plaintiff here has been suspended but continues to receive

his annual salary in excess of $50,000.00 per annum. This

court has ordered that defendants provide plaintiff with

A-10

hearings regarding his requested dismissal. If plaintiff's name

or reputation has been injured, he will have his day in court

to clear his name. If the charges are either unfounded or not

of sufficient magnitude to warrant dismissal, this court

believes that CAPT will make the appropriate recommen-

dation to the President of the University. Plaintiff is not_

entitled to a separate post-suspension hearing in that the sus-

pension itself is but a part of the dismissal process. It was an

action taken by the University in face of what at this stage

appears to have been extraordinary and special circumstances.

While this court has accepted the analysis in Lafferty v.

Carter, 310 F.Supp. 463 (W.D. Wisc. 1970) that a suspension

with pay does affect a protected property interest, this court

rejects the decision that such an intrusion on a property

interest requires a prior “preliminary hearing.” It is of the

essence that the University retain authority to cope with

crises on the campus. When suspension with pay is merely a

preliminary action, done in the face of serious disturbances on

campus, followed quickly by specification of charges and the

entire panoply of due process safeguards, a post-suspension

hearing is not necessary. This is not to say, however, that

inquiry into the conditions existing at the time of the sus-

pension is foreclosed. Such inquiry will no doubt be carried

out in the dismissal hearings and at the trial.

Plaintiffs motion for preliminary injunction and/or

summary judgment with respect to Count V of plaintiff's first

amended complaint is hereby denied.

DATED: July 29, 1974.

/s/ Howard B. Turrentine

Howard B. Turrentine, United

States District Judge

COPY TO: ALL COUNSEL

meena

A-11

APPENDIX B

COMMITTEE ON ACADEMIC PRIVILEGE AND TENURE

The University of Arizona

August 20, 1974

Report on Removal of Dr. Erle E. Peacock, Jr.

as Head of the Department of Surgery

Introduction

On October 26, 1973, Dr. Merlin K. DuVal in his capacity

as Acting Dean of the Ccllcge- of Medicine distributed a

memorandum to the members of the Administrative Council

of the college and to various university administrators inform-

ing them that he was relieving Dr. Erle E. Peacock, Jr. as head

of the Department of Surgery and was himself assuming the

acting headship of the department. This change had previously

been communicated to Dr. Peacock and to the members of

the surgery department. This action was the culmination of

nearly six months of discussions among Dr. DuVal, President

John Schaefer, Dr. Peacock, and others concerning dissatis-

faction of the university administration with Dr. Peacock’s

performance as department head. Following meetings on

November 23 and 24, 1973, the Arizona Board of Regents

issued a public statement that they had removed Dr. Peacock

as department head.

The University of Arizona General Faculty Bylaw 12(b)ii)

provides an avenue whereby Dr. Peacock could have requested

this Committee to investigate the matter, conduct a hearing,

and make recommendations to the President. It also provides

that the President may request this Committee to act. During

the fall and winter of 1973-74, however, neither Dr. Peacock

A-12

nor the President made any approach to the Committee. In a

memorandum to the faculty, dated December 5, 1973,

Dr. Schaefer did note that Dr. Peacock could come to this

Committee, and during the winter several surgery department

members did approach the Committee. These persons did not

elect to invoke the Committee’s jurisdiction.

Members of the surgery department did participate with the

Committee on Conciliation in an effort to conciliate their

grievance concerning the removal of Dr. Peacock “without

prior consultation with the faculty.” That committee con-

cluded that conciliation was impossible and so informed the

parties. Its memorandum to Vice President Albert Weaver

dated December 11, 1973 which reported these fruitless

efforts, is firm evidence that conciliation was not possible. It,

therefore, became “apparent that complainants... [were]

unable to obtain satisfactory solutions or adjustments through

the customary administrative channels and the Committee on

Conciliation.”

In the spring of 1974, Dr. Peacock filed a lawsuit against

the Board of Regents and various university administrators

which was designated as Peacock v. Board of Regents,

No. CIV 74-123 PHX-HBT. Between March 21 and 27, 1974,

a hearing on Dr. Peacock’s motion for a preliminary injunc-

tion was conducted with United States District Court Judge

Howard B. Turrentine presiding. On May 3, 1974, Judge

Turrentine ordered the plaintiff be reinstated as department

head and gave the university administration the option to

relieve him from performing any duties as head “pending a

hearing in accordance with the rules and regulations, Faculty

Manual, Chap. VIII 13 ed., regarding dismissal of tenured

faculty members.” Dr. Schaefer reinstated Dr. Peacock as head

and then immediately relieved him of any duties pending a

hearing.

A-13

This panel of the Committee on Academic Privilege and

Tenure was convened under authority of Bylaw 12(b)(ii) in

order to make an investigation and recommendations upon

the request of President John P. Schaefer with respect to the

grievance of Dr. Erle E. Peacock, Jr. On May 9, 1974, Dr.

Schaefer wrote a memorandum to the Committee in which he

stated: “I hereby request that you set in motion the proce-

dures necessary to provide Dr. Peacock a hearing on

Dr. DuVal’s recommendation that Dr. Peacock should be

relieved of his title and all duties related to his position as

Head of the Department of Surgery.”

Although questions relating to removal of department heads

have not heretofore been brought to this Committee, Bylaw

12(b)(ii) indicates that “as a matter of general principle, this

Committee shall concern itself with complaints and griev- -

ances by members of the faculty in ways designed helpfully

to supplement the regular administrative processes of adjusting

such matters.” The Bylaw also charges the Committee to

“receive complaints in writing from individual members of the

faculty or from groups of faculty members,” to investigate

such complaints, and to “‘make recommendations for solutions

or adjustments of the matters involved to the President of the

University.”

Due to the withdrawal from consideration of this case by

one member of the Committee on Academic Privilege and

Tenure, Professor Willard Van Slyck, and the unprecedented

increase in the number of cases which had been brought to

the Committee prior to President Schaefer’s request in this

matter, it became apparent that it would be necessary for

additional faculty members to be asked to participate in the

Committee’s investigation, hearing, and recommendation in

this case. Dr. Russell Davis and Dr. David Hetrick, the two

A-14

remaining members of this Committee, consulted with the

university Committee on Committees, Committee of Eleven,

in-coming and out-going chairmen of the faculty, and other

persons as to how best to increase Committee membership. It

was decided that several groups of three faculty members

would be established as ad hoc panels to conduct the neces-

sary investigations and hearings on behalf of the Committee.

The various panels were to be selected in the same manner as

the Committee. The panel chosen for consideration of this

matter is chaired by Dr. David Hetrick, an appointee of the

Committee on Committees and subsequent to July 1, 1974,

the chairman of the University Committee on Academic Privi-

lege and Tenure. Dr. Raymond Thompson was selected by the

President to serve. Professor Ray Davis was chosen by

Dr. Hetrick and Dr. Thompson as the third member of the

panel.

The Committee held pre-hearing conferences with counsel for

the parties on June 7 and July 3, 1974. Mr. William R. Jones, Jr..

representing the University administration, entered in.o

a stipulation approving enlargement of the Committee :nd

creation of this panel. Mr. William Lee McLane, attorney ior

Dr. Peacock, did not agree to the stipulation insofar as it

related to this hearing; he did, however, endorse the stipula-

tion insofar as it related to a subsequent hearing to be held

before the same panel concerning the same parties.

At the June 7 conference a time schedule was established

for the University administration to file charges with the

Committee concerning Dr. Peacock, for a response from

Dr. Peacock, for lists of witnesses, and for conduct of a

hearing. Counsel made a waiver of the time requirements for

notice in order that the case might be heard as expeditiously

as possible.

On June 17 the University administration, through

A-15

William R. Jones, Jr. and Jack J. Rappeport acting as

attorneys, filed two charges with the Committee. They were:

“1) that Dr. Erle E. Peacock, Jr. was removed as Head of

the Department of Surgery on October 25, 1973 because he

acted unilaterally and independently as a clinical department

head and without regard for the impact of the results of his

actions on his colleague clinical department heads and on the

institution (University of Arizona College of Medicine) as a

whole. As a result of the foregoing, the clinical department

heads at the College of Medicine University of Arizona lost

trust and confidence in Dr. Erle E. Peacock, Jr. as a depart-

ment head and could not effectively work with him for the

good of the University of Arizona College of Medicine.

2) that Dr. Erle E. Peacock, Jr. in his dealings with

people within the College of Medicine and outside of the

College of Medicine in the community at large conducted the

affairs of the Department of Surgery in an unprofessional

manner inimical to the best interests of the College of

Medicine.”

Also on June 17 the university administration supplied the

Committee with a list of witnesses it intended to call in the

Committee’s hearing.

A memorandum dated June 22, 1974 was sent to the

Committee from the office of McLane and McLane, counsel

for Dr. Peacock, confirming the position announced to the

Committee at the pre-hearing conference on June 7 by

William Lee McLane that Dr. Peacock would not be a partici-

pant in the headship hearing. The memorandum stated:

“Please be notified that, having appealed the May 3, 1974

order of the United States District Court ‘authorizing’ the

University of Arizona to relieve Erle E. Peacock, Jr. as Head

of the Department of Surgery pending a hearing in accordance

A-16

with Chapter VIII of the Faculty Manual, Dr. Peacock will not

participate in any such hearing if one is conducted.” At the

July 3 pre-hearing conference when Dr. Peacock was present,

counsel reiterated this position. On July 9 during the hearing

when Dr. Peacock appeared without counsel as a Committee

witness, he read a statement of a similar nature.

The Committee regrets the position taken by Dr. Peacock

and his legal advisors. Counsel could have made for our record

a statement announcing that by participation in our hearing

Dr. Peacock did not intend to waive any legal right which

related to his appeal and did not waive any remedy which

upon appeal he might be afforded. Such a reservation of

rights protecting his claims respecting the appeal would have

been adequate protection for the position of Dr. Peacock. The

Committee recognizes that a faculty member may elect not to

appear as a formal party at a Committee proceeding and may

choose to come before us as a witness without being repre-

sented by counsel. Indeed the Committee wishes to express

our appreciation to Dr. Peacock for complying with his duty

as a member of the university community by appearing as a

witness. But refusal to become a party does not prevent the

Committee from carrying out its mandate in the Faculty

Manual to investigate the matters in dispute and to make a

report with recommendations to the President. In our judg-

ment that investigation in this case could best be accom-

plished by holding an open administrative hearing.

In accordance with the discussions held during the June 7

and July 3 pre-hearing conferences, the Committee proceeded

to hold public hearings at the Moot Court Room of the

College of Law during the afternoon of July 3, 1974 and on

July 8, 9 and 10. William R. Jones, Jr. appeared as counsel for

the University administration; Dr. Peacock did not participate

A-17

as a party, nor was he represented ‘by counsel at the hearings.

The Committee exercised its right to examine witnesses for

the University administration; it also called witnesses of its

own, including witnesses favorable to Dr. Peacock; and it

called Dr. Peacock himself. These witnesses were cross-

examined by Mr. Jones. At the conclusion of the hearings the

parties were advised, Mr. Jones orally and Dr. Peacock by

letter, of their right to submit to the Committee proposed

findings and recommendations and arguments to support

them. On July 17 the administration, through Mr. Jones,

supplied us with such a memorandum. Consistent with his

nonparticipation as a party in the proceedings, Dr. Peacock

notified the Committee that he did not wish to exercise his

right to make such a submission.

The Committee, in accordance with procedures followed by

administrative agencies, bases this report upon the record

made in the proceedings. Various exhibits, including the tran-

script of the proceedings before Judge Turrentine in March

1974 and the exhibits used in that case, were introduced

before the Committee and accepted by it. A transcript was

kept of the two pre-hearing conferences and of the hearings.

Due to a delay in obtaining the entirety of the transcript until

August 2, the Committee was unable to render a report about

this case prior to starting public hearings concerning another

matter relating to Dr. Peacock. We did, however, reach certain

tentative decisions after meeting together as a Committee on

July 22 and 23. We also deliberated on August 16, and we

agreed upon this report and signed it on August 20.

Since this case involves relieving a department head of his

duties and title, it was essential that in making our recom-

mendations this Committee ascertain the functions and role of

a department head. Consequently, in the remainder of this

report, we shall first discuss the nature of a department

A-18

headship, then make findings of fact concerning the adminis-

tration’s charges about Dr. Peacock’s performance as depart-

ment head, comment on the procedures followed in this case,

and finally offer our recommendations.

Role of Department Head

In considering the role of a department head at the

University of Arizona, this Committee has examined (1) the

Faculty Manual, Thirteenth Edition (1973), (2) the American

Association of University Professors “Statement on Govern-

ment of Colleges and Universities” (1973 edition), and (3) the

indications from the record in this case illustrating how the

head of the surgery department functioned.

Faculty Manual. The Manual does not completely define

the functions performed by department heads at the

University. It does, however, list enough of them to provide a

picture of the role of a department head at Arizona.

The department he:d is a key figure in connection with

' faculty and staff appo'ntments. Although various committees

may also be involved, it is the department head that makes

recommendations to the Board of Regents concerning faculty

and staff appointments, reappointments, nonretention, tenure,

promotions, and dismissals (Section 8.03). It is the head who

is required to inform faculty members of tenure and promo-

tion decisions (Sections 8.09, 8.11-.14), who is the person to

whom faculty resignations are directed (Section 8.15), who

has discretion in recommending reappointment or release of a

temporarily appointed faculty member (Section 8.16), and

who recommends the dismissal of a faculty member (Section

8.19).

Faculty members who carry on employment for compensa-

A-19

tion beyond that called for in their job descriptions must

clear such work with their department head. When the

employment is outside the University and university facilities

are used, the faculty member must make special financial

arrangements with the department head (Section 2.29). When

supplemental work is being done for the University the matter

must be discussed with the department head (Section 2.31).

Department heads must be informed of any conflict of inter-

est in any government-sponsored research (Section 2.32).

Faculty leaves of absence are subject to approval by heads

of departments. In the case of sabbatical leaves the head not

only must give approval, but also must get evaluations of the

faculty member’s project (Section 2.25). For nonsabbatical

leaves the head must grant approval and demonstrate that the

faculty member’s courses can be taught by someone else or

some other adjustment can be made (Section 2.26).

Department heads have a responsibility concerning univer-

sity property. They are charged with the care and custody of

departmental equipment (Section 2.21). They sign purchase

orders for equipment repairs (Section 2.20) and for book

purchases (Section 4.09G). They also must approve travel

orders (Section 2.24) and certify staff members’ dependents

for special fees (Section 2.38). \

When a faculty member is unable to meet a class, he must

notify his department head so a replacement may be found

(Section 3.10). To facilitate this the Code of Conduct requires

such a notification (Section 9.02), and another rule designates

the department head as the person to whom faculty members

must report illness or accident which cause their absence from

duty (Section 2.58). \

Complaints about faculty members are channeled to the

department heads (Section 9.03), and appeals from faculty

grading are handled by them (Section 3.18). \

\

A-20

Among other duties and responsibilities of department

heads is granting approval to students to act as tutors (Section

2.35), transmittal of course and curricular materials to '

appropriate university officials (Section 2.41), giving approval

to off-campus questionnaires using the name of the University

(Section 2.43), transmitting teaching load reports (Section

3.07), giving out field trip forms (Section 3.26), proposing

university guests (Section 6.13), and getting notices of address

changes of faculty and staff members (Section 2.46). Letters

of resignation must be sent to heads (Section 2.51); inven-

tions must be disclosed to them (Section 7.02-4 [a]); and

requests for legal opinions must be channeled ape them

(Section 2.53).

It is clear from this recital that the Faculty Manual lists

many duties and powers of department heads which fairly can

be characterized as administrative in character. Some of these

designated duties and powers are discretionary, others are

ministerial; some of them have a direct relationship to the

academic affairs of the department, others do not. But they |

all deal with management of the affairs of the department.

When the additional powers of budgeting’ and selection of

committee members are added to the list of departmental

headship powers, it becomes even more apparent that, even

though a head may also teach, at the University of Arizona in

his role as head he is an administrator.

The Manual does not in any place give a specific listing of

all university personnel regarded as administrators. It does,

however, contain Faculty Bylaw 12(b)(iv) which in referring

to the Committee on Academic ‘Privilege and Tenure states:

“Department heads and other administrative officials should

intimate as soon as possible to new members any sense of

dissatisfaction” (emphasis ours). This provision vue sale

regards a department head as an administrator. 1

A-21

AAUP Statement. Reference has been made in this case to

the position of the American Association of University: Profes-

sors concerning the role of a department head. The complete

paragraph from that organization’s “Statement on Govern-

ment of Colleges and Universities” which appears to bé in

point reads, as follows:

“The chairman or head of a department, who serves as the

chief representative of his department within an institution,

should be selected either by departmental election or by

appointment following consultation with members of the

department and of related departments; appointments should

normally be in conformity with department members’ judg-

ment. The chairman or department hvad should not have

tenure in his office; his tenure as a ‘aculty member is a

_ matter of separate right. He should serve for a stated term but

without prejudice to re-election or to reappcintment by pro-

cedures which involve appropriate faculty consultation. Board,

administration, and faculty should all bear in mind that the

department chairman has a special obligation to build a depart-

ment strong in scholarship and teaching stents (See page

38 of “Statement.”’) :

- The main thrust of this paragraph is with respect to

selection procedures for department heads. It also refers to

the head as the “chief representative of his department within

an institution,” and notes his “special obligation to build a

department strong in scholarship and teaching capacity.” Both .

departmental representation and building can be characterized

as involving, at least in part, performance of administrative

functions.

The statement distinguishes between a nesacen’s role in the

" “office” of chairman or department head in which there is no

- tenure, and the separate right of the individual to tenure as a

‘

/ /

A-22

faculty member. This notion that a head does not have tenure

as head is consistent with section 8.06 of the Faculty Manual

which states: “A member of the University faculty who holds

an administrative position does not have tenure in the admin-

‘istrative appointment, and he does not lose academic tenure

by appointment to or relief from an administrative appoint-

ment.”, The two provisions are parallel.

Surgery Department Functioning. Although administrative

functions, of the Department of Surgery were more widely

sub-delegated than in many other departments of the

University, the transcript of testimony shows that during his

headship Dr. Peacock did personally exercise many administra-

tive functions. For example, in the area of finances, he

approached the Veterans’ Hospital manager over funding of

‘the hemodialysis program, and he offered the head of the

pediatrics department financial underwriting of that depart-

ment’s graduate education program if collapse of the Tucson

Hospitals Medical Education Program should undercut it.

Dr. Peacock ‘viewed his role as department head as including

handling such external relationships as entering an objection

to press coverage of a kidney transplant by another member

of the surgery faculty, publicly dressing down a professor

‘from another department in the college over a subject of

concern generally to the surgery department, asking the

Attorney General’s office for legal information concerning the

Crippled Children’s Services, and becoming involved in the

controversy over the appropriateness of the Tucson Hospitals

Medical Education Program as a competing surgical residency

program, even though he was not a member of the committee

which was to look into the matter. Dr. Peacock attended and

vigorously participated in various meetings in which adminis-

trative matters were discussed. He and the other clinical

’ XQ ‘ /

A-23

department heads had weekly meetings. He attended the

Dean’s Committee meetings in connection with clinical work

at the VA hospital.

Within the department Dr. Peacock certainly exercised an

administrative role in his actions with respect to faculty meet-

ings. He chaired the major part of most meetings; he prepared

the agenda and noted it on the blackboard; he prepared the

official minutes of faculty action. It was through the efforts

of Dr. Peacock that much of the faculty recruitment was

carried out. Although as the department grew other faculty

members played a significant role, in the final analysis it was

Dr. Peacock who made the recommendations for their

employment. As recently as the spring of 1973 he hired

Douglas Lindsey as a member of the faculty.

Several surgery department members testified before the

Committee that they did not regard a department head as an

administrator. In spite of that, they made it quite clear that

they did regard Dr. Peacock as their “chief representative”

within the College of Medicine; they praised him for building

a strong department; and they acted with respect to him as

though Dr. Peacock were in fact an administrator.

Relationships of Department Heads. During the hearings in

this case much was said about departmental democracy,

especially about that principle of democracy which involves

reaching departmental decisions by majorif:' vote. The

evidence shows that in the surgery department the concensus

mechanism often led to unanimous votes.

We should also be cognizant of some of the other principles

of democracy which are important in academia as well as in

government. Among them is the concept of checks and

balances that requires operating within the established frame-

work of the University for conducting departmental affairs. A

A-24

department functions within the University, not as an inde-

‘pendent unit, but as an entity subject to certain checks and

balances. It must work with and adjust to comparable units,

that is, other departments. It must function within a frame-

work which gives such administrative officials as deans veto

power in certain instances over what the department may

want to do. The department must be prepared to respond to

these lateral and vertical objections to its proposals and

actions by willingness to compromise, rather than by insisting

that its position must prevail at all cost simply because it is

the result of some form of majority concensus within the

department. :

The head of a department must be more than the

representative of the departmental faculty. He also is a

member of the administration. He cannot function effectively

unless he has the confidence of both his faculty and the

college administration. The department head also must be able

to relate well to heads of other departments whose educa-

tional functions are related. The head must be able to

communicate within his own department, to other depart-

ments, and to the college administration. He has a special

responsibility to effect compromise for the good of the total

University; the self-interest of his department requires it. -

Should the faculty or college administration find itself in.

conflict with the department head or should there arise —

dissension among department heads, then all parties have the

responsibility of thoughtful deliberation. In such a situation

the administration should be sensitive to faculty opinion. It

also has the responsibility to judge in the broader context of

the welfare of the college and of the University as a whole.

Findings on Charges

Traditionally at the University of Arizona department heads

A-25

have been regarded by the college and University administra-

tions as fellow administrators; department heads have not

been considered to possess tenure in their headships; and

department heads have served at the pleasure of their adminis-

trative superiors in that they have been subject to dismissal

without formality and for whatever reasons the college or

University administrations deemed adequate. Judge

Turrentine, however, upset this tradition by ruling in his

May 3, 1974 order that Dr. Peacock had a contract right to

his position as department head. In a Notice of Appointment

dated May 24, 1973, Dr. Peacock was designated both as

Head of the Department of Surgery and as Professor of

Surgery. Acceptance of this document by signing it and

returning it to the office of the President, according to the

judge, created a contract.

Although the University administration continued Dr.

Peacock’s salary until the end of June 1974 and the Notice of

Appointment by its terms only applied until that time, this

Committee sees merit in the argument that Dr. Peacock never-

theless had a property interest which was adversely affected

by his ouster as department head. Assuming that such is the

case, he should not have been removed unless there was an

objectively adequate basis of such action. We find that the

two charges filed with this Committee by counsel for the

university administration would, if substantiated by the facts,

form an adequate basis for Dr. Peacock’s removal.

Several witnesses, including Dr. Peacock, complained that

the charges were vague and lacked the specificity necessary

for presentation of an adequate defense. Had counsel for

Dr. Peacock participated in the hearing and requested that the

Committee require the University administration to supply a

bill of particulars which would list specific incidents which

might support the charges, the motion might well have been

A-26

granted. Since Dr. Peacock was not represented by an

attorney at the hearing, no such motion was made. Instead

the Committee, and to some extent counsel for the University

administration, questioned witnesses with respect to specific

incidents which could be classified as supporting one or the

other or both of the charges. In his examination by the

Committee, Dr. Peacock was asked about these incidents. He

responded using notes previously made which indicated that

he was in fact aware of which events would likely be used to

substantiate the charges. Other persons called by the Commit-

tee were also well prepared to provide us with information

concerning the incidents that were in question.

Testimony of the events leading to the October 1973

removal of Dr. Peacock from the headship can be categorized

into six groups. They are: (1) Proposed transfer of Viet Nam

War casualties, (2) Tucson Veterans Administration Hospital

relationships, (3) Tucson Hospitals Medical Education Program

relationships, (4) proposed transfer of Pima County Hospital

patients, (5) Medical Services Plan controversy, and (6) other

interpersonal relationships.

Proposed Transfer of Viet Nam War Casualties. After his

decision to accept the appointment as the head of the Depart-

ment of Surgery, but prior to his arrival at the University of

Arizona in February of 1969, Dr. Peacock approached two

officials of the Veterans Administration in Washington, D.C.

with a proposal concerning transfer of certain Viet Nam War

casualties from military to veterans’ hospitals. Although there is

conflict in testimony before us whether this action was unilat-

eral, it was established that the manner of Dr. Peacock’s

approach was regarded by the officials as offensive. Dean DuVal

found it necessary to repair the relationship with the Veterans

Administration. At that time the College of Medicine was

_ —

A-27

planning for the use of the facilities of the Tucson Veterans

Administration Hospital in conjunction with its clinical instruc-

tion until a university hospital could be constructed, and hence

good relationships with the VA were essential. Dr. Peacock

apologized for this incident, and Dr. DuVal did not let it inhibit

him in completing the formalities necessary for hiring

Dr. Peacock.

Tucson Veterans Administration Hospital Relationships.

While he was heading the University’s clinical instruction in

surgery at the Tucson VA Hospital, Dr. Peacock antagonized

the hospital administration by his conduct toward them. Two

specific incidents illustrate something of these difficulties. At

a Dean’s Committee meeting Dr. Peacock reproached

Dr. William Denny, an official of the hospital, in extremely

strong terms, and, in Dr. Peacock’s words, “backed him

down.” Dr. Denny responded with a letter to Acting Dean

Jack Layton dated August 5, 1971, in which he commented:

“I was astounded at the vituperation, and insulting, degrading

comments delivered by Dr. Peacock. I have never been

exposed to more rude manners, to less productive exchange of

comments, than were delivered by Dr. Peacock.... We have

an excellent working relationship disturbed only by

Dr. Peacock’s hostile and belligerent personality and his

constant criticism of the Medical Service.”

Dr. Denny, when he came before us as a witness, affirmed

that he stood by the language quoted above. He did, however,

retreat from another comment in his letter in which he made

reference to Dr. Peacock firing residents. Dr. Peacock denied

this and Dr. Denny withdrew his charge.

Dr. Peacock’s response to Committee questions about his

relationships with personnel at the VA hospital pointed out

some of the deficiences at the hospital when the surgery

A-28

department undertook its clinical education program there.

His concern over the problems relating to health care and

medical education there was genuine; his manner of expressing

it to the people involved was inappropriate. Dr. Peacock him-

self characterized for the Committee the impact of his

conduct. “The doctor was mad, wasn’t he, when he wrote

that.”

Another example of the difficulties in University VA

Hospital relationships caused by Dr. Peacock related to

funding of the hemodialysis program at the Veterans Adminis-

tration Hospital in Tucson. Starting in September 1969 locally

available funds were used to support the program. Because the

local support exceeded the amount that the VA Washington

office would approve, when other monies from Washington

became available, instead of being used for other projects,

they were allocated to reimburse the sources that made initia-

tion of the hemodialysis program possible. Dr. Peacock, how-

ever, took exception to the decision, visited the hospital

manager, and lodged an intense argument with him that the

decision was bad. The manager filed a formal complaint with

Dean DuVal who on September 15, 1970 wrote a memoran-

dum to Dr. Peacock which stated that his “involvement in this

case is meddlesome and not in the best interest of interdepart-

mental harmony.” The director of the hemodialysis project

was not a member of the surgery department.

Tucson Hospitals Medical Education Program Relationships.

Before there was a medical school at the University of

Arizona three Tucson hospitals had established a residency

program known as the Tucson Hospitals Medical Education

Program. Before the completion of the Arizona Medical

Center it was very important to the school to have good

A-29

working relations with THMEP. Particularly the pediatrics and

obstetrics departments, who' could not do clinical work at the

VA as could the other clinical departments, found coopera-

tion essential. Nevertheless there was some tension between

the school and THMEP because they operated competing

graduate medical education programs.

Dr. Peacock made it quite clear that he regarded having

two competing surgical education programs as inappropriate.

He believed that he could not achieve educational objectives

in his department by any affiliation with THMEP. At one

time he negotiated for transfer of surgical patients from a

hospital affiliated with THMEP which he commented would,

if successful, have destroyed THMEP. In a letter to Dr. DuVal,

who then was in Washington, Dr. Peacock told us that he said

to him: “It is going to be interpreted as the cleaver dropping

on THMEP and they are right, it is.”

Although Dr. Peacock’s cleaver did not in fact destroy

THMEP, it did anger Dr. Eric Ramsay, the head of THMEP.

With respect to this controversy Dr. Peacock told the

Committee: “It looks like we got another fellow mad at me,

doesn’t it?” That is an accurate appraisal of Dr. Ramsay’s

letter of November 5, 1973 to Dr. DuVal. He noted that “in

surgery...the relationship has been hostile and totally

frustrating.” He commented on Dr. Peacock’s “personal

antipathy,” and his “repeated efforts...to control the

county surgical patients.”” He then launched into an attack

upon Dr. Peacock’s performance at the Arizona Medical

Center.

Proposed Transfer of Pima County Hospital Patients. It is

the policy of the Board of Regents not to accept charity

patients at the Arizona Medical Center. Pima County Hospital

which is the county’s charity hospital in Tucson is over-

A-30

crowded. Dr. Peacock wished to do. something to take the

pressure off the Pima County Hospital by taking patients

from it. Although he went to the administrator of the

Arizona Medical Center before contacting county officials, he

did not inform Dr. Jack Layton who was at that time Acting

Dean of the college. When Dean Layton learned of

Dr. Peacock’s action, he impressed upon Dr. Peacock that the

college administration should be notified of that sort of

approach outside the college. Dr. Layton testified that

Peacock’s action had compromised discussions he was con-

ducting with people in the community for dealing with

under-served Tucsonans.

Medical Services Plan Controversy. When Dr. DuVal

returned from Washington and became Acting Dean of the

College of Medicine early in 1973 he was told by Dr. Layton

that there were two problems in the college that required his

immediate attention. One was the difficulties with the surgery

department; the other was the controversy over the Medical

Services Plan. Dr. DuVal took the MSP matter up with the

clinical department heads, and until March they discussed

ways and means of getting the departments in compliance

with the plan by revamping it so that it could effectively take

care of the so-called “salary gaps’”—the difference between a

faculty member’s state salary and the amount he could

command in practice, the research needs of the departments,

and the over-all needs of the college. A few department heads,

including Dr. Peacock, sought a re-written plan which would

(as compared with the plan forwarded by the other heads)

favor the departments over the college. The majority, how-

ever, favored what could be described as the “college plan.” A

vote of the heads was taken on March 14, 1973 in which the

majority prevailed. The matter of wording of the plan was

A-31

delegated to the dean and in two weeks he returned with the

final version which then was approved. It was understood that

this plan was to be presented to the Board of Regents and

that after a year of experience with it the whole matter was

to be re-opened. Resolution of the MSP question came only

after compromise which had followed considerable contro-

versy.

Dr. Peacock told us that he considered the March 14 vote

as a mere “straw vote.” Dr. DuVal did not so regard it; he

considered it as a binding vote, and he understood that the

department heads had agreed to be bound by a majority vote.

Dr. Paul Capp, Head of the Radiology Department, sided with

Dr. Peacock in the deliberations of the clinical department

heads. Nevertheless he testified that it was his view that “so

far as I was concerned, it w:is settled.”

Dr. Capp further testified that “the reopening of the plan,

you know, did cause some problems in terms of opening up

another can of worms.” It was Dr. Peacock who opened that

can by attempting to persuade other department heads to

reverse their position and by suggesting that surgery would

withdraw from the plan. Although surgery has not done so,

the threat was quite disruptive to the medical school.

Other Interpersonal Relationships. The Committee finds

that in his interpersonal relationships Dr. Peacock did more

than once abuse his status. Dr. Capp testified that Dr. Peacock

had made a highly~emotional telephone call to him concerning

radon seeds. He became totally incensed over the telephone,

and then stormed into the Radiology Department office and

there “exhibited the kind of behavior that is difficult to put

into words, totally intimidating and in an emotional

uproar... .”

In another instance Dr. Peacock demanded a vehicle from

A-32

the car pool, was told that none were available, and there-

upon acted in such a “totally intimidating” manner that he

“virtually emotionally destroyed” the car pool manager. The

man was so shaken that he pulled a set of keys off the wall,

threw them to Dr. Peacock, locked his doors, went to his

superior and said “I quit. I will take no more of this.”

While they were passengers on the same airplane,

Dr. Peacock braced Dr.Irwin Fruendlich, Chief of the

Diagnostic Division of the Department of Radiology, about a

mechanical problem in diagnostic radiology. Dr. Peacock

became so upset about it that he stated to Dr. Fruendlich, “If

you can’t settle this, we don’t want to have to get rid of you

and Paul.” Among the passengers who overheard the conversa-

tion was another university professor.

When Marilyn Drago, a local newspaper reporter, reported a

story which Dr. Peacock apparently thought her paper had

agreed not to report, he called her and, according to her

testimony, “he yelled, he said that I was absolutely

disgusting. ... [H]e said I was repugnant, that no physician at

the medical school would ever allow me to interview him

again, that all my work was completely incompetent, it was

unprofessional, it was unethical and then he said, ‘How dare

you call yourself a science writer?’ And then he said, ‘Do you

realize you’re going to be responsible for the deaths of 150

kidney patients?’ ”’

Dr. Peacock apologized for this incident. It nevertheless

provoked the newspaper to lodge a formal complaint with the

President of the University.

Cumulative Effect. Some of these incidents are explainable

as misunderstandings. Others are explained in terms of

impatience, momentary anger, etc.; and apologies have been

extended in some of the situations. In some of these instances

A-33

we have noted a conflict in testimony. The cumulative weight

of evidence convinces us that, even though some of the

specific issues are not resolved, the testimony does paw

the charges. In his dealings with Dr. Fruendlich, Dr. Capps,

and his fellow clinical department heads within the College of

Medicine, Dr. Peacock did conduct the affairs of the Depart-

ment of Surgery in an unprofessional manner inimical to the

best interests of the College of Medicine. His dealings with’

personnel of the Veterans Administration, Dr. Ramsay, and \

Mrs. Drago outside of the College can similarly be charac-

terized.

Trust and Confidence. Dr. Schaefer and Dr. DuVal both

testified that they had lost confidence in the ability of

Dr. Peacock to perform adequately as a department head.

Dr. Oscar Thorup, head of internal medicine, referred to

Dr. Peacock’s conduct as “disruptive” and responded in an

affirmative manner to the question whether the time came

when he had lost his “trust and confidence” in Dr. Peacock.

Dr. Vincent Fulginiti, head of pediatrics, testified that after

One incident with Dr. Peacock he could no longer trust him.

The difference between the need for trust and confidence

among the department heads in the College of Medicine and

the need for such relationships among other heads at the

University may be one of degree; it is not one of kind. It is

essential to the operation of the institution that fellow depart-

ment heads can rely upon the conduct and statements of each

other. It is an improper burden on these administrators to ask

them to ascertain what really lies behind the words and acts

of another department head.

The Committee has in its possession affidavits from all of

the clinical department heads which were filed in connection

with the lawsuit. They can be generally characterized as

A-34

supporting the proposition that removal from the headship of

the Department of Surgery of Dr. Erle Peacock has not inter-

ferred with the programs of their departments and that his

reinstatement would not improve their programs. Some of

them go further and state that his presence was divisive and,

that his reinstatement would not be in the best interests of

the College of Medicine.

Freedom of Speech and Academic Freedom. It is our ,

judgment that Dr. Peacock was not removed from his head-

ship position because he expressed differences with other

persons. It was the manner of his expression that contributed

to the events for which he was removed. His constitutional

right to free speech has not been infringed.

Judge Turrentine has expressed his view that no issue of

academic freedom is present in this case. We do not see the

matter quite that simply. Although this case may not directly

involve academic freedom, there are quite clearly overtones of

academic freedom issues. If removal of Dr. Peacock were

intended to bring about a change in the teaching approach of

the department or to induce the faculty to alter its education-

al goals and means, then not only would it have impinged

upon his academic freedom, but also upon that of the faculty

members within the department. There is no indication that

Dr. DuVal acted with such intent. Indeed so far as we have

been able to ascertain subsequent to Dr. Peacock’s removal

there has been no appreciable change in either the educational

goals within the surgery department or the means whereby

they have been effected.

One member of the surgery department faculty reminded

the Committee that the faculty must have an effective

channel of communication to the administration of the |

college and of the university. If the dean and the president

A-35

have lost confidence in the department head, an important

channel of communication is blocked and to that extent the

department “faculty members have lost their academic

freedom. Communication involves not only channeling infor-

mation from the faculty to the administration of the college,

but also from the college level to the departmental level. It is

entirely consistent with the concept of’academic freedom to

replace a department head who cannot communicate both

ways with one who can.

_ Academic freedom does not imply the right of one group

or department to go exclusively its own way in disregard of

the institution as a whole. The dean’s duty is to blend the

welfare of the various department faculties with the, overall

welfare of the college. A department head is the message

center for the necessary two-way communication.

Dr. Peacock referred to himself as a man with a “mission.”

His ends may have been justifiable: his means of achieving

them have in the instances detailed herein been unjustifiable.

His conduct as a department head made it impossible for him

to work effectively with the other clinical department héads

_for the good of the University of. Arizona College of

Medicine.

Procedures Followed In This Case

' Since it has been ruled that a contract interest is involved

in this case, it is incumbent upon the Committee to comment

upon the procedures used by the University administration in

affecting that interest. Due process of law must be followed

in any taking of property and a contract right is a property

interest. In order to comply with due process procedure, there

must be adequate notice and a proper hearing.

Dr. Peacock contends that he has’ not yet received notifica-

/

A-36

tion of the reasons why he was removed as department head.

We do not agree. Dr. DuVal’s testimony on rebuttal categori-

cally stated that ‘as early as his conference with Dr. Peacock

about May 11, 1973 when he first informed Dr. Peacock that

there would have to be a change in the departmental adminis-

_ tration, he gave Dr. Peacock a list of reasons for the action he

indicated he was going to have to take. It is noteworthy that

during the spring of 1973 Dr. DuVal also informed another

department head that it would be necessary for a change in

departmental leadership. Dean DuVal testified that as soon as

he was aware of the nature of the difficulty in the other

_ department, he, telephoned the other department head -who

was out of the country and gave him notice of the reasons for

the required change in leadership.

The other change in the medical school was effected grace-

fully and without any public acrimony or embarrassment—at

least there was no .embarrassment until it became public

knowledge due to the controversy over the Department of

Surgery change. It is usual ‘for such shifts to be accomplished

smoothly, and it is likely that Dr. DuVal believed that such

would be the case with the Department of Surgery. He was

wrong. Dr. Peacock, backed by members of his department,

decided to resist the change. He had two interviews with

President Schaefer about the headship, interviews which

neither persuaded Dr. Peacock to acquiesce nor Dr. Schaefer

to withhold his support from Dr. DuVal. In August 1973 Dr.

_DuVal attended a, surgery ‘department faculty meeting. He

neither convinced the surgeons of the appropriateness of his

proposed course of action nor was he convinced by them to

not take it. Later the department voted to re-affirm

Dr. Peacock’s leadership as department head. During all of this

time Dr. DuVal did not make any public announcement of

¢

A-37

the reasons for demanding Dr. Peacock’s resignation. To do so

would have unnecessarily embarrassed Dr. Peacock, if he had

elected to resin quietly. Not doing so, however, caused the

members of the department to conclude that there were no

adequate reasons for the dismissal that was impending. It is

possible that their understandable attitude helped to convince

Dr. Peacock that he was not given the reasons for the head-

ship action.

As the positions of the two sides hardened, the University

administration undertook an increasingly thorough investiga-

tion of Dr. Peacock’s performance as department head. As

they did so new information zbout events which became a

part of the accumulation we earlier referred to came to light.

But by the time of the preliminary injunction hearings in

Phoenix in March of this year, Dr. Peacock surely knew the

nature of the case against him.

The University’s statement of charges of June 17 consti-

tutes an express notification of why the action was taken. We

have earlier addressed ourselves to the adequacy of that notice

when coupled with the occurrences at the hearing.

The University did not give Dr. Peacock a formal hearing

prior to the actions of October 1973 when he first was

dismissed and of May 1974 when he was reinstated and

immediately suspended from. performance of his duties as

department head. When it became obvious to Dr. Peacock that

he would be removed, and it must have before he was in fact

removed, he could have gone to the Committee on Concilia-

tion and thereafter he could have sought the help of this

Committee. He did not do so. Nothing in the Faculty Manual

would have prevented Dr. DuVal and President Schaefer from

having given Dr. Peacock a formal hearing, if he wished one,

before action was taken.

A-38

Instead of formal proceedings, the University administration

used informal conferences with Dr. Peacock and the depart-

ment, not for the purpose of fact-finding, but in a futile

effort to persuade Dr. Peacock to bend to their will. These

informal. conferences were not an adequate substitute for a

full hearing.

The administration did, however, as early as December 5,

1974 make a public announcement that it was ready to lay

the facts before this Committee if Dr. Peacock invoked our

jurisdiction. It was this offer that Judge Turrentine directed

the University administration to keep open insofar as it

applied to another issue concerning these parties. The offer

initially, however, related only to the dismissal of Dr. Peacock

from his headship.

We believe that the hearing which we have held was indeed

a full hearing and a complete airing of the facts of the case.

We wish it had come sooner, but it was held. The Judge’s

order to the administration to make this hearing available

broke the Alphonse and Gaston act of the parties. There now

has been a proper hearing.

Recommendation

The Committee therefore recommends that the suspension

of Dr. Earl E. Peacock, Jr. from his duties as department head

on or about May 8, 1974 now become a permanent dismissal

from that position.

/s/ David L. Hetrick

David L. Hetrick, Chairman

/s/ Raymond Thompson

Raymond Thompson

: /s/ Ray Davis

Ray Davis

iatioial

THE UNIVERSITY OF ARIZONA

TUCSON, ARIZONA 85721

OFFICE OF THE PRESIDENT

September 27, 1974

Erle E. Peacock, Jr., M.D.

4525 North Hacienda del Sol

Tucson, Arizona 85718

Dear Dr. Peacock:

I have reviewed and considered the report

submitted to me by the University Committee

on Academic Privilege and Tenure regarding

the headship of the Department of Surgery.

I have decided to accept and abide by the

recommendations of the Committee.

Yours sincerely,

/s/ John P, Schaefer

John P, Schaefer

JPS :mm

cc: Dr. D. Hetrick

Dean Vanselow

Dr. DuVal

A-39

CERTIFICATE OF SERVICE

I, JACK J. RAPPEPORT, certify that the respondents’

BRIEF IN OPPOSITION TO THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT was served upon

counsel of record by personal delivery of three (3) copies of

said brief on June 5, 1975 to:

William Lee McLane, Esquire

McLane & McLane

2970 Valley Center

Phoenix, Arizona 85073

and by depositing three (3) such copies in the United States

mail on June 4, 1975, postage prepaid, to:

Jeremy E. Butler, Esquire

Lewis & Roca

100 West Washington, 23rd Floor

Phoenix, Arizona 85003

K J. P

205 North Bentley Avenue

Tucson, Arizona 85716

COUNSEL FOR RESPONDENTS