SCHWELB, Associate Judge:
Dr. Apostolos Kakaes brought this action in the Superior Court against George Washington University, alleging that the University had unlawfully refused to grant him tenure. He claimed that the University failed to provide him with timely notice of a final and definitive denial of his application for a tenured appointment, as required by the University's Faculty Code.
In September 1987, the University appointed Dr. Kakaes to its faculty as an Assistant
A. The Faculty Code.
A proper understanding of this somewhat esoteric dispute requires familiarity with the applicable provisions of the Faculty Code. The Code provides that "Assistant Professors shall be appointed for a period of not more than three years and may be reappointed, with or without tenure, for one or more additional periods." Code § IV.A.4.1.b. "All appointments or reappointments to regular, active-status positions, [except for those that confer tenure], shall be for a specified term." Code § IV.A.3.1.a. The total of such terms, however, "shall not exceed seven years." Code § IV.A.3.1.b. Under the Code, therefore, the professor's employment is terminated if tenure is not granted after seven years.
Decisions regarding tenure "shall normally follow faculty recommendations," unless the University administration "nonconcurs" and offers "compelling reasons" for its nonconcurrence. Code Procedures § B.3.
The Code also contains a notice provision which states, in pertinent part, that
Code § IV.A.3.1.c. Dr. Kakaes' principal contention is that the University failed to comply with this provision.
B. Dr. Kakaes' Tenure Application.
In September 1992, at the beginning of the sixth year of his maximum term of appointment, Dr. Kakaes submitted an application for tenure and promotion to the EECS Personnel Committee. In November 1992, the Personnel Committee unanimously recommended to the Dean of the SEAS, Gideon Frieder, that Dr. Kakaes be granted tenure and promotion. Dean Frieder, however, disagreed, and after explaining the reasons for his nonconcurrence, he requested the Personnel Committee to reconsider its recommendation. On March 24, 1993, the Committee met to consider Dean Frieder's request, but again voted to recommend that Dr. Kakaes receive a tenured appointment. The views of the Personnel Committee and of Dean Frieder were thus in conflict.
On May 14, 1993, with the impasse still unresolved, the University's Vice President
On May 15, 1993, Dean Frieder formally notified Vice President French that he did not concur with the recommendation of the EECS Personnel Committee. Vice President French conveyed Dean Frieder's nonconcurrence to the Executive Committee of the Faculty Senate. On June 21, 1993, after reviewing Dr. Kakaes' application, the Executive Committee concluded that Dr. Kakaes should not be granted tenure. In the Executive Committee's view, Dean Frieder had presented compelling reasons for his nonconcurrence with the Personnel Committee's recommendation. The Executive Committee requested the Personnel Committee to withdraw its recommendation in Dr. Kakaes' favor. At a September 1993 meeting, however, the Personnel Committee adhered to its original position, and the impasse between Dr. Kakaes' faculty colleagues and the University administration remained unresolved.
Meanwhile, by letter dated June 28, 1993,
(Emphasis added). On the same day, Vice President French advised the chairman of the EECS department by memorandum that
On September 7, 1993, the University's Assistant Vice President for Legal Matters advised Dr. Kakaes' attorney that "there ha[d] not yet been any final action regarding Professor Kakaes." On December 1, 1993, Stephen Trachtenberg, the President of the University, transmitted Dr. Kakaes' tenure file to the Chairman of the Board of Trustees. President Trachtenberg stated in his letter of transmittal that he believed that the matter required review by the Board.
On February 10, 1994, seven months after Dr. Kakaes received the purported notice of non-renewal, the Board of Trustees voted to uphold Dean Frieder's nonconcurrence, thereby denying Dr. Kakaes' application for tenure.
C. The Proceedings in the Trial Court.
On October 22, 1993, more than three months prior to the action of the Board of Trustees, Dr. Kakaes filed this suit against the University in the Superior Court, alleging breach of contract. Dr. Kakaes prayed the court, inter alia, for declaratory relief and for an order requiring the University to grant him tenure. Dr. Kakaes alleged that he was entitled to tenure because Vice President French's letter of June 28, 1993 was legally insufficient to constitute the required notice that tenure will not be granted. He alleged that the Board of Trustees had not acted on his tenure application, that no final decision regarding tenure had as yet been made, and that therefore "the notice requirements
After conducting substantial discovery, the parties filed cross-motions for summary judgment. In an order filed on July 5, 1994, the trial judge held, inter alia, that "[n]owhere in the Code does ... a requirement [exist] that the notice of a denial of tenure not be given until the Board of Trustees ha[s] acted." Apparently concluding that the Faculty Code was unambiguous and that the notice which the University had provided to Dr. Kakaes complied with the Code as a matter of law, the judge granted the University's motion for summary judgment and denied Dr. Kakaes' motion. This appeal followed.
A. Scope of Review.
The question whether the trial court properly granted summary judgment in favor of the University
"In the area of contract interpretation, the existence of a genuine issue of material fact generally turns on whether or not the contract is ambiguous." Gryce v. Lavine, 675 A.2d 67, 69 (D.C.1996). The University is therefore entitled to summary judgment if, and only if, the Faculty Code unambiguously supports the University's interpretation. Id.
B. The Faculty Code.
The University contends, and the trial judge effectively held, that Vice President French's letter was sufficient, as a matter of law, to satisfy the University's contractual obligations. We disagree.
Words in a contract "are to be given their common meaning." Basch v. George Washington Univ., 370 A.2d 1364, 1367 (D.C. 1977) (per curiam); see also Sawyer v. Mercer, 594 S.W.2d 696, 699 (Tenn.1980) (applying this principle to language in a faculty guide). The Faculty Code provides that a member of the faculty "who will not be granted tenure ... shall be so notified in writing no later than June 30 ...." Code § IV.A.3.1.c (emphasis added). An impartial trier of fact could reasonably conclude that the words "will not," as used in this context, presuppose that a final and definitive decision has been made with respect to tenure prior to the notice being given. The Code does not state that the faculty member is to be notified that he "may not" be granted tenure, or that he "is not likely to" be granted tenure, or that he "has not been recommended for" tenure. The operative words are "will not." A reasonable person could find, in this context, that "will not" means "will not," not something less definitive, and that a "predictive" notice is not sufficient.
The University reads the notice provision as though it stated: "If the Dean recommends that tenure be denied, then the faculty member shall be so notified." According to the University, a recommendation by the Dean that tenure be denied is the event which triggers the notice requirement. It may be that such a provision would be a sensible one and that the University could readily comply with it, but the parties agreed to something quite different. The Code as written contemplates notice of a decision that tenure "will not be granted." The apparent triggering event is not the Dean's nonconcurrence, but a final decision denying tenure.
A definitive decision could not have been made in this case in conformity with the Faculty Code until after the Board of Trustees had acted on Dr. Kakaes' application. Where, as here, the faculty and the administration have disagreed as to whether tenure
In the present case, Vice President French's "notice" to Dr. Kakaes was transmitted on June 28, 1993, more than half a year before any action was taken by the Board of Trustees. Moreover, the notice itself reveals the non-final character of the tenure decision. To be sure, French began his letter by advising Dr. Kakaes, in the language of the Faculty Code, that "you will not be granted tenure at the conclusion of your current appointment." The ostensible certitude of this assertion, however, was dissipated by the disclosure, later in the letter, that the matter was being referred to the Board of Trustees "for its consideration" and that Dr. Kakaes "will be notified of the outcome as soon as possible." If the "outcome" was dependent on an action by the Board which was to be taken in the future, then nobody could know for sure, at the time the letter was written, whether or not Dr. Kakaes "will" be denied tenure.
The summary judgment record contains further evidence, aside from Vice President French's letter, that the University itself fully understood that the Board of Trustees was to be the final and decisive actor with respect to Dr. Kakaes' application. Dr. French acknowledged in his memorandum of June 30, 1993 to the chairman of Dr. Kakaes' department that "the question of [Dr. Kakaes'] ultimate tenureing or termination remains to be resolved." (Emphasis added). Moreover, as we have noted, the non-finality of the Dean's recommendation was subsequently acknowledged by counsel for the University and by President Trachtenberg. See pp. 131-132, supra.
The University argues that the Board of Trustees has never declined to follow a nonconcurring recommendation forwarded by the Dean, and that "predictive" notice which is sent prior to review by the Board is therefore sufficient as a matter of law. The contention that the Board automatically and uncritically approves the recommendations of administration officials, however, does not square with the language of the Code. The Code Procedures provide that nonconcurring "recommendations" (rather than "decisions") "shall be transmitted to the Board of Trustees." By the terms of the contract, then, the Board played a significant role in the tenure review process. Specifically, the Board was designated to make the final decision as to tenure when the administration and the faculty were unable to reach a consensus. In this case, as in Kyriakopoulos v. George Washington Univ., 275 U.S.App. D.C. 237, 243, 866 F.2d 438, 444 (1989), "the contract does not transmogrify the Board into a rubber stamp of committee[
The University also contends that the Code does not require notice of a final decision regarding tenure because the language is prospective: it calls for notice that tenure will not be granted at the end of the faculty member's maximum term of appointment. This argument takes the Code's use of the future tense out of its evident context. The prospective nature of the notice requirement simply reflects the fact that the faculty member will continue to be employed through the end of his maximum term, at which point he will not be granted tenure. The provision requires notice that tenure will not be granted, not that tenure might not be granted. Accordingly, an impartial trier of fact could reasonably conclude that in order to comply with the Code, the University was required to complete its decision-making process by the contractual deadline.
The University asserts that "[e]very court faced with similar arguments regarding the sufficiency of notice to faculty has uniformly rejected [the argument that proper notice requires a definitive decision denying tenure]." This statement is not correct. The parties have cited no case law precisely in point, and we have found none. Dr. Kakaes' reading of the notice provision in the Faculty Code, however, finds support in at least two cases in which courts have recognized that notice of the denial of tenure, or of some comparable action, is not effective unless the underlying decision has been made in a timely fashion by the appropriate authority.
In Papadopoulos v. Oregon State Bd. of Higher Educ., 14 Or.App. 130, 511 P.2d 854 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974), the court was called upon to interpret a state board regulation requiring twelve months' notice "[i]f any appointment of an academic staff member... not on indefinite tenure, is to be terminated otherwise than for cause." Id. 511 P.2d at 873. No official below the level of the President of the University had the authority to terminate a professor's employment. Professor Papadopoulos had applied for tenure, but he received notice of nonretention before the president had acted on the application. The court held that the notice was deficient because
Id. at 874 (emphasis added); cf. Perrin v. Oregon State Bd. of Higher Educ., 15 Or.App. 268, 515 P.2d 409, 412 (1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974) (distinguishing Papadopoulos as a case involving the "problem . . . of construing the recommendation of a subordinate as a definitive decision by one entitled to make the decision").
In Farrington v. School Comm. of Cambridge, 382 Mass. 324, 415 N.E.2d 211 (1981), the court was called upon to construe a state statute which required that teachers be given notice no later than on April 15 of the current academic year if they were not to be retained for the following year. Id. 415 N.E.2d at 212. The court had previously held in Bonar v. City of Boston, 369 Mass. 579, 341 N.E.2d 684, 687 (1976), that a teacher is entitled to tenure after three consecutive years of employment unless the appropriate body (in Ms. Farrington's case, the school committee) has provided timely, authorized, and proper notice to the contrary. 415 N.E.2d at 212. Ms. Farrington received an otherwise timely notice from the superintendent of schools. At the time of the notice, however, the school committee had not yet voted on her reappointment. The court held that the notice was defective, and that Ms. Farrington was entitled to tenure:
Id. at 213 (emphasis added) (citations omitted).
The issue in this case is at least roughly analogous to the questions resolved by the courts in Papadopoulos and Farrington, See also James T. Payne, Annotation, Sufficiency of Notice of Intention to Discharge or Not to Rehire Teacher Under Statutes Requiring Such Notice, 52 A.L.R. 4th 301, 365-68 (1987 & 1995 Supp.).
C. Substantial Compliance.
The University next asserts that, even if the notice to Dr. Kakaes was defective, "[a]ny alleged technical defect ... has no legal significance because the central purpose behind providing timely notice was served, and thus no breach [of contract] occurred." Because "Dr. Kakaes had over a year of continued employment with the University after receiving notice of denial of tenure during which time he could seek another job," the notice, according to the University, served the purpose for which it was required. The University therefore argues that, as a matter of law, it has substantially complied with its notice obligation under the Code.
The University suggests that Vice President French's letter provided Dr. Kakaes with sufficient warning to allow him to begin looking for a position elsewhere. Upon receiving the letter, however, Dr. Kakaes found himself (to use the vernacular) between a rock and a hard place. He had taught at the University for six years. He had applied for tenure there. His faculty colleagues apparently thought well of him, and the Personnel Committee had unanimously recommended that he be promoted and granted tenure. In his letter of June 28, 1993, Vice President French apprised Dr. Kakaes that the administration disagreed with the Personnel Committee's recommendation, but he also stated that the final decision was up to the Board of Trustees.
Dr. Kakaes was thus left with two less than ideal choices. He could start all over again, seek a position at another institution, and accept such a position if offered, thus in effect giving up his opportunity to remain at George Washington University if tenure was ultimately granted to him. Alternatively, he could take his chances on the possibility of a favorable decision from the Board and defer any efforts to secure placement elsewhere until after the Board had acted. This course of action would, however, entail an increased risk that he would not find a position at all. The notice provision was at least arguably designed to avoid placing professors in just such a quandary.
Moreover, the Board did not make its final decision denying Dr. Kakaes' application for tenure until seven months after the contractual deadline. Rather than the one year's
D. Custom and Practice.
According to the University, "[i]t is well-settled law in this jurisdiction that the custom and practice of a university is to be taken into account when interpreting any contract between the university and a faculty member." (Citing Howard Univ. v. Best, 547 A.2d 144, 149 (D.C.1988) (Best II)). The University contends that the notice provision in the Faculty Code should be read in light of the University's "usual custom and practice [of giving] faculty members notice that they will not be granted tenure without any prior review of the matter by the Board of Trustees." We do not agree that the University's allegations as to custom and practice entitle it to summary judgment.
The University claims that the Board of Trustees becomes involved in very few cases in which the administration has recommended denial of tenure. Specifically, the Board considers tenure applications only in cases like this one, in which the faculty and the administration make conflicting recommendations. This means, according to the University, that its usual custom and practice is to send a notice of denial to an unsuccessful applicant for tenure without any prior action by the Board of Trustees. But if any custom is relevant to this case, it must be the University's procedure where there is a difference of opinion between the faculty and the administration. In that situation, the University concedes, the Faculty Code provides that variant recommendations "shall be transmitted to the Board of Trustees," evidently for the Board's decision. The University's practice in other situations is of questionable relevance.
The University's custom and practice are not necessarily irrelevant. Procedures utilized by the University with respect to cases in which the faculty and the administration have made conflicting recommendations may properly be considered to resolve any ambiguity in the Faculty Code, in the event that the trial court concludes that such an ambiguity exists. See Howard Univ. v. Best, 484 A.2d 958, 967-68 (D.C.1984) (Best I); see also Best II, 547 A.2d at 149.
For the foregoing reasons, the judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
Because the question whether the University is in breach of contract has not yet been conclusively determined, we do not decide whether Dr. Kakaes will be entitled to specific performance in the event that he ultimately prevails as to liability. See, generally, EDWARD YORIO, CONTRACT ENFORCEMENT: SPECIFIC PERFORMANCE AND INJUNCTIONS, § 19.1, at 441 (1989). "This court has no authority to issue advisory opinions regarding questions which may or may not arise." District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182 (D.C. 1993) (citations omitted).