Davis Adv. Sh. No. 27
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Paul Ross, M.D., Appellant,
Medical University of
South Carolina, James B.
Edwards, W. Marcus
Newberry, Stanley, C.
Baker, Jr., Thomas C.
Roland, M.D., Melvyn
Berlinsky, Wm. Bruce
Ezell, Jr., M.D., Cotesworth
P. Fishbume, Jr., D.D.S.,
Herbert C. Granger, Charles
B. Hanna, M.D., Robert C.
Lake, Jr., E. Conyers
O'Bryan, Jr.. M.D., Claudia
W. Peeples, Harrison L.
Peeples, M.D.. Philip D.
Sasser and Alan E. Stalvey, Respondents.
Appeal From Charleston County
William L. Howard, Sr., Judge
Opinion No. 24694
Heard May 7, 1997 - Filed September 22, 1997
AFFIRMED AS MODIFIED
Ellis I. Kahn and Justin S. Kahn of Kahn Law, Firm, of
Charleston, for appellant.
Richard S. Rosen. Morris D. Rosen, and Alex B. Cash. of
Rosen. Rosen & Hagood. and Joseph C. Good, Jr.. of
Charleston, for respondents.
Burnett, A.J.: Appellant Paul Ross, M.D., seeks judicial review under
the Administrative Procedures Act (the APA)1 of the termination of his tenured
position by Respondent Medical University of South Carolina (MUSC). Dr. Ross
contends multiple and overlapping errors at all levels in the process of his termination
resulted in denial of his procedural due process rights in violation of the United States
and South Carolina Constitutions.2 The circuit court affirmed the termination. We
affirm as modified.
Dr. Ross was a tenured professor at MUSC. In 1989, his employment
was terminated by James Edwards, President of MUSC. Pursuant to the procedures set
forth in the MUSC faculty handbook, Dr. Ross requested and received a hearing before
a Faculty Hearing Committee (Committee). The Committee recommended Dr. Ross'
termination be upheld. In accordance with the handbook procedures, the Vice-
President for Academic Affairs, Marcus Newberry, reviewed the Committee's
recommendation and rationale and concurred in the termination. Thereafter, the Board
of Trustees (the Board) granted review and, after hearing argument from counsel for
both Dr. Ross and MUSC, unanimously voted to uphold Dr. Ross' termination.3 After
taking additional evidence, the circuit court concluded, inter alia, Dr. Ross' termination
was supported by substantial evidence and his due process rights were not violated.
EVIDENCE BEFORE COMMITTEE
The following evidence was presented during the seven-day hearing
before the Committee in September 1989. In 1975, Dr. Ross was hired by MUSC as a
tenured professor and the Chairman of the Department of Radiology (the Department).
Like other faculty, Dr. Ross' income was comprised of a base salary, supplemented by
funds distributed from a professional fee account. Funds for the professional fee
account were generated by clinical work performed by the Department faculty.
2 U.S. Const. amend. XIV, § 1; S.C. Const. art. I, § 3.
3 After receiving notification the Board concurred with the Committee's
recommendation, Dr. Ross filed an action in circuit court alleging due process
violations, breach of contract, accord and satisfaction, defamation, and seeking judicial
review under the APA. MUSC removed the action to federal court. The federal court
remanded Dr. Ross' petition for judicial review under the APA to the circuit court and
held the remaining causes of action in abeyance.
The Department received funding directly from MUSC and from the
professional fee account. As Chairman, Dr. Ross had authority to distribute the
Department's funds for Departmental salaries, research, and expenses as he saw fit.
Dr. Ross agreed he was accountable for the distribution. MUSC administration agreed
Department faculty would not be informed of Dr. Ross' income.
In 1982, Dr. Ross' net income was $392,702. The Acting Dean of the
School of Medicine advised Dr. Ross he was concerned about the level of the doctor's
income. Over the next few years, Dr. Ross' income increased to $662,556. In 1985,
the Vice-President for Academic Affairs warned Dr. Ross about his high income. At
times, MUSC reduced the direct funding for the Department to force Dr. Ross to
allocate more of the professional fees for Departmental purposes, rather than to his
In 1986, the Dean of the School of Medicine notified Dr. Ross his total
income could not exceed the 80th percentile of income for radiology professors as
reported by the Association of American Medical Colleges times 1.2%. The Dean
instructed Dr. Ross to resign as Chairman of the Department. Dr. Ross submitted his
resignation in mid-1988 and then went on sabbatical. His resignation as Chairman was
effective on February 1, 1989. Between 1980 and 1988, Dr. Ross allocated to himself
over $2,000,000 more than the average medical school department chairman.
Shortly after Dr. Ross' resignation as Chairman, the Department faculty
met with Vice-President Newberry and expressed concern over the direction of the
Department. The faculty informed Vice-President Newberry it had discovered the level
of income Dr. Ross had distributed to himself from funds generated by the Department
as a whole. The faculty was upset because Dr. Ross had maintained MUSC
administration had denied the Department adequate funding for their academic
endeavors and because he had allocated available funds to his personal income.
Vice-President Newberry spoke with Dr. Ross about his income and the
faculty's concerns on at least three occasions between February 9 and the end of March
1989. At these meetings, Vice-President Newberry informed Dr. Ross Department
faculty members were demoralized by his presence and preferred he leave MUSC.
By letter dated and personally delivered to Dr. Ross on March 29, 1989,
Vice-President Newberry notified Dr. Ross of complaints he had received and charged
repeatedly violated Article X, III (B) of the [MUSC] handbook by
conduct seriously prejudicial to [MUSC] through infractions of commonly
accepted standards of behavior in academic and professional
communities. Specifically, it is alleged that you misused your position as
Department Chairman for personal gain by unfairly compensating
yourself in relationship to your actual contributions to the department's
earnings. You knowingly allocated [professional account] monies in such
a manner as to unfairly penalize your departmental employees while
knowingly raising your level of compensation to a point far exceeding
that of any M.D. at [MUSC] and exceeding nationally accepted levels.
These actions continued even after warnings from the administration.
This letter concluded by stating Vice-President Newberry would appoint a peer review
committee to investigate these allegations. Vice-President Newberry testified he tried
to resolve the matter with Dr. Ross by offering him the option of resigning in lieu of
appointing a peer review committee.
On April 5, 1989, Dr. Ross met with Vice-President Newberry; he
refused to resign. Thereafter, Vice-President Newberry discussed the situation with the
General Counsel for MUSC. The two reviewed the MUSC faculty handbook and
determined, rather than appointing a peer review committee, the matter should be
brought to President Edwards' attention.
President Edwards testified he independently investigated Dr. Ross'
conduct. By letter dated April 13, 1989, President Edwards notified Dr. Ross he was
guilty of conduct seriously prejudicial to MUSC and terminated his employment. In
response to a letter from Dr. Ross' counsel, President Edwards wrote Dr. Ross on April
20, 1989, delineating the particular charges of misconduct.
Other testimony before the Committee indicated faculty members
recruited by Dr. Ross were paid less than radiologists in the 50th percentile of the
Association of American Medical Colleges. Faculty members left the Department
because of lack of money. In 1987, Dr. Ross told a faculty member there were no
additional funds for raises and his (Dr. Ross') own salary was directly controlled by the
A faculty member testified Dr. Ross performed clinical work one-half to
one day per week and read scans approximately one to one and one-half hours per day.
He explained, at that rate, it was impossible for Dr. Ross to have generated the income
he collected as professional fees. Nonetheless, Dr. Ross had the highest income at
President Edwards testified Dr. Ross' conduct irreparably damaged
MUSC and resulted in MUSC losing $500,000 in known donations. Various witnesses
testified Dr. Ross' conduct significantly deviated from standard practice in academic
administration, was improper, was unethical, and was seriously prejudicial to MUSC.
1. Did the circuit court err by concluding the APA did not apply to the
grievance procedure at MUSC?
A. Did Dr. Ross receive notice as required by the APA?
B. Was Dr. Ross improperly prohibited from taking discovery
under the APA?
C. Do the Board's findings of fact and conclusions of law comply
with the APA?
II. Did the circuit court err by concluding Dr. Ross' due process rights
were not violated because he was afforded an adequate pretermination
III. Did MUSC violate South Carolina Constitution article I, § 22?
IV. Did the circuit court err by concluding Dr. Ross was required
to establish he was prejudiced by certain ex parte communications
between employees of MUSC?
V. Did the circuit court err by issuing its own findings of fact and
conclusions of law?
I. Applicability of APA to Grievance Proceedings
While his petition for judicial review was pending, Dr. Ross served
discovery on MUSC. MUSC refused to respond and was held in contempt. On appeal
of the contempt order, this Court determined, pursuant to provisions in the APA, the
circuit court, sitting as the reviewing court, had the discretion to order discovery and to
admit extrinsic evidence concerning alleged irregularity in the agency proceeding.4 In
addition, the Court concluded ex parte communications between MUSC's General
Counsel and Vice-President Newberry violated provisions of the APA.
Accordingly, the Court affirmed the circuit court's jurisdiction to order discovery and
remanded the matter for further proceedings under the APA. Ross v. Medical
University of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994)(Ross I).
where there are alleged procedural irregularities which do not appear in the record.
Dr. Ross contends the circuit court was bound by Ross I as the law of
the case and, therefore, erred by concluding the APA did not apply to MUSC's
.grievance proceedings. We agree.
The doctrine of the law of the case prohibits issues which have been
decided in a prior appeal from being relitigated in the trial court in the same case. 5
Am.Jur.2d Appellate Review § 605 (1995). The law of the case applies both to those
issues explicitly decided and to those issues which were necessarily decided in the
former case. Nelson v. Charleston & Westem Carolina Railway Co., 231 S.C. 351,
357, 98 S.E.2d 798, 800 (1957)(where Court granted a new trial in first appeal for
errors in the charge, it logically determined trial court had not erred in refusing
defendant's motion for a directed verdict "for if there had been error in this respect it
would have been unnecessary to consider any other questions");5 see also Warren v.
Raymond, 17 S.C. 163 (1882)(all points decided by the Court on appeal, or necessarily
involved in what was decided, are res judicata and cannot be considered again in the
In Ross I, the Court specifically determined the lower court had
discretion under provisions of the APA to order discovery concerning alleged
irregularities in the grievance proceedings at MUSC and, during the grievance process,
MUSC's General Counsel and Vice-President had violated provisions of the APA
prohibiting ex parte communication. In arriving at these conclusions, the Court
necessarily decided the APA was applicable to MUSC's grievance proceedings. The
lower court was bound by this decision as the law of the case. Accordingly, the lower
court erred by concluding the APA did not apply to the grievance proceedings before
A. Notice under the APA
Two months prior to the hearing, Dr. Ross requested the Committee order
MUSC to provide more specific information regarding the charges against him. The
Committee denied this request. Dr. Ross contends the Committee's failure to grant his
motion violated the notice provision of § 1-23-320(b)(4). We disagree.
Section 1-23-320(a) requires all parties to be afforded an opportunity for
presented by the case cannot be considered a dictum, and this rule applies as to all
pertinent questions, although only incidentally involved, which are presented and
decided in the regular course of the consideration of the case, and lead up to the final
conclusion, and to any statement in the opinion as to a matter on which the decision is
predicated.") (Emphasis added).
hearing after notice. Notice includes: (1) a statement of the time, place, and nature of
the hearing; (2) a statement of the legal authority and jurisdiction under which the
hearing, is to be held; (3) reference to the particular sections of the statutes and rules
involved; and (4) a short and plain statement of the matters asserted. § 1-23-320(b).
Section 1-23-')20(b)(4) provides, "[i]f the agency or other party is unable to state the
matters in detail at the time the notice is served, the initial notice may be limited to a
statement of the issues involved. Thereafter, upon application, a more definite and
detailed statement shall be furnished."
MUSC provided Dr. Ross with notice of the matters asserted (the reasons
for his termination) in compliance with § 1-23-320(b)(4). Vice-President Newberry's
letter of March 29, 1989, stated the alleged misconduct and referred to the particular
sections of the MUSC faculty handbook the conduct was alleged to have violated.
President Edwards' letter of April 13, 1989, terminating, Dr. Ross' employment also
stated the nature of Dr. Ross' misconduct and referred to specific sections in the faculty
handbook the conduct was alleged to have violated. Further, by letter of April 20,
1989, President Edwards responded to Dr. Ross' request for a more detailed statement
and provided detailed allegations of misconduct, the effect of the misconduct on
MUSC, and statutory provisions the misconduct was alleged to have violated. Dr.
Ross was fully and fairly apprised of the matters asserted in such time and manner so
as to be able to meaningfully respond at the hearing. Accordingly, the Committee did
not err by denying Dr. Ross' request for more specific information regarding the
charges against him. We find no error.
B. Discovery under the APA
Dr. Ross argues the Committee violated the APA by refusing to compel
the deposition of a representative from MUSC and refusing to subpoena television
footage covering his termination.
Under the APA, any party to a contested proceeding may depose
witnesses in accordance with the provisions which apply in civil actions. § 1-23-
320(c). In addition, the agency hearing the contested case has the power to issue
subpoenas for the attendance of witnesses and production of records. § 1-23-320(d).
At the motion hearing, the Committee denied Dr. Ross' request for an
order compelling the deposition of a representative of MUSC. The Committee also
denied Dr. Ross' request to subpoena television footage covering his termination.
While the Committee had the authority to compel the requested
deposition and subpoena the requested television footage, we conclude Dr. Ross' rights
were not substantially prejudiced by the Committee's denial of these requests. Dr.
Ross took full advantage of the opportunity to cross-examine the witnesses presented
on behalf of MUSC. He has not established his inability to depose a representative of
MUSC or gain access to television footage substantially hindered his ability to respond
to the charges against him. Accordingly, Dr. Ross was not prejudiced by the
Committee's denial of these motions. Section 1-23-380(g)(on appeal under the APA,
the reviewing court may reverse the decision if substantial rights of the appellant have
been prejudiced because the administrative findings are in violation of statutory
C. The Board's Findings of Fact & Conclusions of Law
Dr. Ross asserts the Board, the final decisionmaker in MUSC's grievance
procedure, failed to issue adequate findings of fact and conclusions of law as required
by the APA. We disagree.
Section 1-23-350 provides: "[a] final decision or order adverse to a
party in a contested case shall be in writing or stated in the record. A final decision
shall include findings of fact and conclusions of law, separately stated."
The Board issued a letter stating, "[a]fter fully reviewing the complete
record of the [Committee] proceedings, after oral arguments before the Board by
counsel, and after due deliberation, [the Board] voted unanimously to uphold the
termination of [Dr. Ross]." The lower court concluded the Board adopted the
Committee's findings of fact and conclusions of law.6
We find no error as a result of the Board's failure to issue its own
findings of fact and conclusions of law. Since the Board agreed with the
recommendation of the Committee, it was unnecessary for the Board to restate the
analysis and conclusion in its own order. Moreover, Dr. Ross has not established any
prejudice from failure of the Board to draft its own findings of fact and conclusions of
law. Section 1-23-380(g)(on appeal under the APA, the reviewing court may reverse
the decision if substantial rights of the appellant have been prejudiced because the
administrative findings are in violation of statutory provisions).
fact and conclusions of law. To the extent he does, however, challenge the
Committee's order, we conclude the reasons supporting the Committee's decision are
clearly set forth in its report and are sufficient to enable the reviewing court to
determine whether substantial evidence exists to support Dr. Ross' termination. Able
Communications, Inc. v. South Carolina Public Service Commission, 290 S.C. 409,
351 S.E.2d 151 (1986).
II. Adequacy of Pretermination Hearing
Dr. Ross contends the trial judge erred by concluding he received an
adequate pretermination hearing, before he was discharged. We agree.
The Due Process Clause of the Fourteenth Amendment provides "nor
shall any state deprive any person of life, liberty, or property without due process of
law." U.S. Const. amend XIV, § 1. Similarly, the South Carolina Constitution
provides no "person [shall] be deprived of life, liberty, or property without due process
of law . . . ". S.C. Const. art. I, § 3. A tenured professor has a property interest in
continued employment which is safeguarded by due process. Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); cf.
Storrer v. University of South Carolina, 288 S.C. 555, 343 S.E.2d 664 (Ct. App.
1986)(South Carolina Constitution does not require notice and hearing comporting with
due process prior to the non-renewal of a non-tenured professor's contract).
All the process which is due is a pretermination opportunity to respond
and a post-termination procedure. Cleveland Board of Education v. Loudermill, 470
U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). "Some kind of hearing" is required
prior to the discharge of an employee who has a constitutionally protected property
interest in employment. However, a full evidentiary hearing is not required prior to
termination. Id.; Arnett v. Kennedy 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15
(1974). Instead, a tenured employee is entitled to 1) oral or written notice of the
charges against him, 2) an explanation of the employer's evidence, and 3) opportunity
to present his explanation. Louderrnill, supra.
[T]he pretermination hearing need not definitively resolve the propriety of
the discharge. It should be an initial check against mistaken decisions -
essentially, a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and support the
proposed action .... The essential requirements of due process ... are
notice and an opportunity to respond. The opportunity to present reasons,
either in person or in writing, why proposed action should not be taken is
a fundamental due process requirement.
Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495, 84 L.Ed.2d at 506 (emphasis
As a tenured employee, Dr. Ross had a property interest in continued
employment at MUSC. Accordingly, he was entitled to due process, including a pre-
termination hearing. Board of Regents of State Colleges v. Roth, supra.
MUSC asserts Vice-President Newberry's four meetings with Dr. Ross
between February 9 and April 5, 1989, constituted the pretermination hearing. We
question whether meetings over a two-month period qualify as a pretermination
hearing. Nonetheless, we need not resolve that issue because we find Dr. Ross was
never advised MUSC administration was considering terminating his employment.
Instead, the record indicates Dr. Ross was informed, if he refused to resign, a peer
review committee would be appointed to investigate the allegations of misconduct.
However, the peer review committee was not appointed and Dr. Ross was terminated.
Since Dr. Ross was not advised MUSC was contemplating terminating his
employment, he did not have an opportunity to respond to the proposed action.
Therefore, MUSC did not provide Dr. Ross with a pretermination hearing. Loudermill,
supra; Cotnoir v. University of Maine Systems, 35 F.3d 6 (1st Cir. 1994).
Nonetheless, although the preterrnination procedures afforded Dr. Ross
did not comply with minimum due process requirements, the error was remedied by
the subsequent Committee hearing. Dr. Ross received notice of a post-termination
hearing, a written list of specific charges against him, and references to the sections in
the faculty handbook and South Carolina Code his conduct was alleged to have
violated. The hearing as originally scheduled was postponed at Dr. Ross' request.
Thereafter, while represented by counsel, Dr. Ross fully participated in the seven-day
hearing. He presented his own witnesses and evidence and cross-examined MUSC's
witnesses. Any lack of opportunity to respond to charges in a pretermination hearing
was clearly remedied by Dr. Ross' full and meaningful participation in the post-
termination hearing. Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980)(any error in pre-
terrnination hearing cured by subsequent hearing); Agarwal v. Regents of University of
Minnesota, 788 F.2d 504 (8th Cir. 1986)(even if employee did not receive all
procedural safeguards during initial proceeding, his right to due process was not
violated due to later hearing); McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994)(state
may cure procedural deprivation of due process rights by providing later procedural
remedy); Jones v. Chatham County, 223 Ga.. App. 455, 477 S.E.2d 889 (1996)(available
post-termination procedures cured employer's failure to have pretermination hearing).
III. South Carolina Constitution article I. § 22
Dr. Ross contends MUSC violated South Carolina Constitution article I, §
22. Specifically, he contends 1) neither Vice-President Newberry nor President
Edwards provided him with notice or the opportunity to be heard and 2) Vice-President
Newberry and President Edwards served as prosecutors and adjudicators, both in
violation of article 1, § 22.
In recognition of the increasing number of governmental powers
delegated to administrative agencies, South Carolina Constitution article I, § 22 was
added to the 1895 Constitution in 1970 "as a safeguard for the protection of liberty and
property of citizens." Final Report of the Committee to Make a Studv of the South
Carolina Constitution of 1895, p.21 (1969). Article 1, § 22 provides, in part:
No person shall be finally bound by a judicial or quasi-judicial decision
of an administrative agency affecting private rights except on due notice
and an opportunity to be heard; nor shall he be subject to the same
person for both prosecution and adjudication; . . . .
We have interpreted this provision as specifically guaranteeing persons
the right to notice and an opportunity to be heard by an administrative agency, even
when a contested case under the APA is not involved. Stono River EPA v.
Department of Health and Environmental Control, 305 S.C. 90, 406 S.E.2d 340 (1991).
Article I, § 22 requires an administrative agency provide notice and an opportunity to
be heard, but does not require notice and an opportunity to be heard at each level of
the administrative process. It mandates notice and opportunity to be heard at some
point before the agency makes its final decision. See DeGroot v. Eml2lovment
Security Commission, 285 S.C. 209, 328 S.E.2d 668 (Ct. App. 1985)(Employment
Security Commission did not violate article 1, § 22 by allowing testimony before
Appeals Tribunal but not on appeal to Commission).
A) Dr. Edwards' Participation
Dr. Edwards investigated Dr. Ross' conduct and then terminated Dr. Ross.
Thereafter, Dr. Edwards testified against Dr. Ross at the Committee hearing,
While we conclude Dr. Ross was entitled to a pretermination hearing in
accordance with the Fourteenth Amendment and South Carolina Constitution article I,
§ 3, we find article I, § 22 did not mandate Dr. Ross be provided with notice and an
opportunity to be heard by Dr. Edwards. Article I, § 22 requires an administrative
agency to provide notice and an opportunity to be heard prior to the agency's final
decision, but does not require notice and an opportunity to be heard at each level of
the administrative process. Id.
We further conclude Dr. Edwards' participation in Dr. Ross' termination
did not violate the provision of article I, § 22 which prohibits the same person from
serving as both prosecutor and adjudicator. First, although Dr. Edwards testified as an
adverse witness against Dr. Ross at the Committee hearing, he did not later participate
as an adjudicator.
Second, although Dr. Edwards investigated Dr. Ross' conduct and,
thereafter, terminated Dr. Ross7 , we conclude this is not the investigatory/adjudicatory
situation article I, § 22 intended to prohibit. Instead, we find the purpose of article 1, §
22 is to ensure adjudications are conducted by impartial administrative bodies. See
Babcock v, Office of Audits, supra note 7(due process requires an impartial
decisionmaker). Partiality exists where, among others, an adjudicator either has ex
parte information as a result of prior investigation or has developed, by prior
involvement with the case, a "will to win." See Grolier, Inc. v. Federal Trade
Commission, 615 F.2d 1215 (9th Cir. 1980)(federal APA prohibits person from serving
as adjudicator where, by prior involvement with case, he has obtained ex parte
information or had a "will to win"). Here, there is no evidence Dr. Edwards' initial
decision to terminate Dr. Ross was not impartial. Dr. Edwards had no access to
information which he obtained as a result of his investigation but which he should not
have considered in making his decision regarding Dr. Ross' employment. Further,
there is no evidence Dr. Edwards' personal investigation prevented him from making
an objective decision regarding Dr. Ross' employment. We find no constitutional
B) Vice-President Newberry's Participation
Vice-President Newberry investigated the faculty complaints against Dr.
Ross, testified as an adverse witness at the Committee hearing, and sat as the
intermediate judge in the three-step disciplinary procedure. In his role as intermediate
decisionmaker, Vice-President Newberry was not required by article I, § 22 to provide
Dr. Ross with notice and an opportunity to be heard during his consideration of the
Committee's recommendation. Dr. Ross was given due notice and an opportunity to be
fully heard during the Committee proceeding. DeGroot v. Employment Security
However, Vice-President Newberry's participation as both prosecutor and
adjudicator clearly violated the provision of article I, § 22 which prohibits the same
person from serving in these dual capacities. Having participated as a witness in the
Committee hearing, Vice-President Newberry was prohibited from reviewing the
Nonetheless, while we do not condone Vice-President Newberry's
participation in this dual capacity, we find the error harmless. After Vice-President
Newberry concurred in the Committee's recommendation, the Board reviewed the
record of the hearing before the Committee, heard oral argument from the parties, and
conducted its own deliberations. The Boards' independent consideration of Dr. Ross'
the Court included investigatory activity with prosecutorial activity.
grievance cured the constitutional violation.8 See Schaper v. City of Huntsville, 813
F.2d 709 (5th Cir. 1987)(alleged conspiracy at pretermination procedure did not violate
due process rights where employee had right to appeal termination); Davis v. Mann,
721 F.Supp. 796 (S.D.Miss. 1988)(where there is an adequate appeal process, bias on
part of initial decisionmaker is not denial of procedural due process).
IV. Ex Parte Communications
Dr. Ross argues two ex parte communications during the grievance
procedure violated his due process. Specifically, he contends A) the Committee's
distribution of its "Comments" to outside counsel for MUSC, Vice-President Newberry
and the Board, but not to himself, and B) Vice-President Newberry's communication
with MUSC General Counsel during his consideration of the Committee's
recommendation violated §1-23-360 and due process. Dr. Ross claims he was not
required to establish the ex parte communications resulted in prejudice. We disagree.
Section 1-23-360 provides:
Unless required for the disposition of ex parte matters authorized by law,
employees of an agency assigned to render a decision or to make findings
of fact and conclusions of law in a contested case shall not communicate,
directly or indirectly, in connection with any issue of fact, with any
person or party, nor in connection with any issue of law, with any party
or his representative, except upon notice and opportunity for all parties to
(emphasis added). Criminal sanctions may be imposed for violations of § 1-23-360.
A. Committee's "Comments"
After deliberations, the Committee prepared a five-page report. The first
four pages of the report were entitled "Decision and Rationale." In its conclusion, the
"Decision and Rationale" states: "[a]ccordingly, although the committee had concerns
about the actions of MUSC administrators in this matter, it recommends to the Vice-
President for Academic Affairs that the grievance appeal by Dr. Ross be dismissed."
The fifth page was entitled "Comments." The "Comments" state MUSC
cure this due process violation because the Board's review was also defective since it
had the Committee's "Comments." In that Dr. Ross did not establish the "Comments"
affected the decision of the Board, this argument is without merit. See Part IV.
knew of Dr. Ross' excessive personal income yet allowed an inordinate length of time
to elapse before taking "precipitous action." The "Comments" recognized MUSC's
arrangement with Dr. Ross permitted his self-serving conduct and called for adequate
oversight and accountability by MUSC administration.
The Committee instructed its counsel to distribute the "Decision and
Rationale," alone, with a transcript of the hearing and other matters, to counsel for Dr.
Ross, outside counsel for MUSC, and Vice-President Newberry. The Committee
instructed its counsel to distribute the "Comments" to outside counsel for MUSC, and
Vice-President Newberry, but not to counsel for Dr. Ross. Committee Counsel
testified the Committee believed the four-page document constituted its decision on Dr.
Ross' termination. Committee counsel explained the "Comments" were the
Committee's criticism of MUSC's handling of Dr. Ross' termination and were prepared
for MUSC administration. Committee Counsel agreed the "Comments" were helpful to
Dr. Ross because they were critical of the administration. The "Comments" were
forwarded to the Board.
During argument before the Board, outside counsel for MUSC referred
to the "Comments," stating,:
Because in addition to finally ruling they [the Committee] sent the
administration a message that listen, we think you are right in this case
but you could have done it better. I mean they weren't afraid of the
administration, these people on that committee.
At this point, Dr. Ross learned of the existence of the "Comments."9
The Committee members were employees of MUSC assigned to render a
decision. In this position, they were prohibited by § 1-23-360 from communicating ex
parte with any party or party's counsel about any issue of fact or law. Although the
Committee characterized its "Comments" as mere criticism, the "Comments" clearly
express the Committee's findings as to MUSC's conduct in this matter and, therefore,
address factual issues. We conclude the Committee's distribution of its "Comments" to
outside counsel for MUSC, but not to Dr. Ross or his counsel, violated § 1-23-360.
Furthermore, apart from the APA, the Committee's failure to distribute its "Comments"
to Dr. Ross while distributing the "Comments" to outside counsel for MUSC, Vice-
procedure which did not appear on the record, the circuit court allowed discovery and
took evidence regarding the alleged irregularities. See Ross I, supra. The testimony
regarding the "Comments" and other ex parte communication was heard by the circuit
President Newberry, and eventually to the Board was ex parte communication.
Nonetheless, although the Court condemns ex parte communication, it has
refused to adopt a per se rule automatically reversing rulings which result from ex
parte communications. Instead, the Court considers whether prejudice results from the
ex parte contact. Burgess v. Stern, 311 S.C. 326, 428 S.E.2d 880 1993 .
Dr. Ross has not established any prejudice from not receiving a copy of
the "Comments." While the "Comments" offer a more thorough explanation of the
Committee's criticism of MUSC's administration, the "Decision and Rationale" which
Dr. Ross did receive also expresses the Committee's concern about the administration's
actions. Dr. Ross has not shown receipt of the "Comments" by Vice-President
Newberry or the Board influenced the decisions of those adjudicators. Since Dr. Ross
has not established any prejudice from not receiving the "Comments," the error is
harmless. Id.; Tall Tower, Inc. v. South Carolina Procurement Review Panel, 294 S.
225, 233, 363 S.E.2d 683, 687 (1987)(in an administrative proceeding, "[a]
demonstration of substantial prejudice is required to establish a due process claim");
Palmetto Alliance. Inc. v. Public Service Commission, 282 S.C. 430, 319 S.E.2d 695
(1984)(proof of denial of due process in administrative proceeding requires showing of
B. Vice-President Newberry's Communication with MUSC General Counsel
Along with outside counsel, MUSC General Counsel represented MUSC
before the Committee. After receipt of the Committee's recommendation and reaching
his own conclusion, Vice-President Newberry asked MUSC General Counsel about the
grievance procedure and to draft a letter reflecting his (Newberry's) decision agreeing
with the recommendation of the Committee. MUSC General Counsel drafted a letter
for Vice-President Newberry; Vice-President Newberry signed and distributed the
letter. By failing to respond to Dr. Ross' discovery, the circuit court deemed MUSC
admitted Vice-President Newberry and MUSC General Counsel discussed the
Committee's "Comments." Ros I, supra.
Under § 1-23-360, Vice-President Newberry, an employee of MUSC
assigned to render a decision, was prohibited from discussing Dr. Ross' case ex parte
with MUSC's General Counsel. Ross I, supra. Nonetheless, Dr. Ross has not show
any prejudice by the ex parte contact. The record indicates Vice-President Newberry
had reached his decision concerning the Committee's recommendation before
communicating with MUSC General Counsel. MUSC General Counsel was merely the
scribe who forwarded Vice-President Newberry's concurrence to the parties. The letter
drafted by MUSC General Counsel simply stated Vice-President Newberry concurred
in the Committee's recommendation and informed Dr. Ross of the procedure for
appeal. The letter does not set forth findings of fact and conclusions of law.
Accordingly, although improper, Vice-President Newberry's communication with
MUSC General Counsel did not prejudice Dr. Ross and, therefore, is not reversible
error. Burgess v. Stern, supra; Tall Tower, Inc. v. South Carolina Procurement Review
Panel , supra; Palmetto Alliance. Inc. v. Public Service Commission, supra.
V. Circuit Court's Order
Dr. Ross contends the circuit court erred by issuing extensive findings of
fact and conclusions of law when MUSC failed to do so. We disagree.
After stating the relevant factual background of this matter, the lower
court's order addressed Dr. Ross' various appellate issues. In addition, the order
addressed Dr. Ross' challenge to the alleged procedural irregularities which he claimed
did not appear in the record of the grievance proceeding and on which the circuit court
permitted discovery and heard evidence. Moreover, we note this argument is
disingenuous: Dr. Ross' proposed order to the circuit court is thirty pages in length
and contains references to testimony and his conclusions based on the evidence.
Although we have found errors in the process of Dr. Ross' termination,
we conclude, as a whole, Dr. Ross was provided with sufficient notice and opportunity
to meaningfully respond to the allegations presented by MUSC. Accordingly, the
decision of the trial judge is affirmed as modified.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.