IN THE CIRCUIT COURT OF BOONE COUNTY, STATE OF MISSOURI DYLAN C. KESLER

) ) Relator, ) ) v. ) ) THE CURATORS OF THE UNIVERSITY ) OF MISSOURI and its officers and agents, ) R. BOWEN LOFTIN, KENNETH DEAN and ) MARK RYAN, ) ) Respondents. )

Case No. 14BA-CV___________

PETITION FOR PEREMPTORY WRITS OF MANDAMUS AND PROHIBITION COMES NOW Relator, by and through counsel, Johnston & Smith, LLC, pursuant to Missouri Rules of Civil Procedure 94.03 and 97.03 and applies for a Peremptory Writ of Mandamus and a Peremptory Writ of Prohibition from this Court. Relator names The Curators of the University of Missouri and it officers and agents R. Bowen Loftin, Chancellor, Kenneth Dean, Interim Provost, and Mark Ryan, Director of the School of Natural Resources, as respondents. Relator is contemporaneously filing with this Petition his suggestions in support thereof along with the attached record of exhibits. For his Petition, Relator states as follows:

STATEMENT OF THE FACTS 1.

Relator, Professor Dylan C. Kesler, is a tenure-track Assistant Professor at University of

Missouri – Columbia (hereinafter referenced as “UMC”). He is a United States citizen, and a resident of Boone County, Missouri. He has been continuously employed, full-time at UMC in the College of Agriculture, Food and Natural Resources (hereinafter referenced as “CAFNR”), School of

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Natural Resources (hereinafter referenced as “SNR”), Fisheries and Wildlife Sciences Department, since September 2007 on a tenure-track appointment (Exhibit A, hereinafter referenced as “Record,” pgs. 1-2). He presently resides at 2609 Braemore Rd., Columbia Missouri, 65203. 2.

Under Revised Missouri Statute § 172.010 et. seq. (RSMo. 2004) and pursuant to sections

9(a) and 9(b) of Article IX of the Missouri Constitution, the University of Missouri, an institution of higher education, was incorporated and created as a body politic to be known by the name “The Curators of the University of Missouri.” The government of the University of Missouri, thereof, is vested in The Curators of the University of Missouri (hereinafter “UMC”) which maintains and operates a campus in the City of Columbia, Boone County, Missouri where Relator worked and was employed at all times relevant herein. Defendant University may be served in care of Steve Owens, Office of General Counsel, 227 University Hall, Columbia, MO 65211. 3.

Respondent R. Bowen Loftin (hereinafter referenced as “Respondent Loftin”) is

Chancellor and Chief Executive Officer for UMC, a resident of the State of Missouri, and an employee of the University with administrative duties affecting Relator’s faculty, employment and contractual rights at the UMC. He may be served at: Room 105 Jesse Hall, University of Missouri, Columbia, MO 65211. 4.

Respondent Kenneth Dean (hereinafter referenced as “Respondent Dean”) is Interim

Provost and Chief Academic Officer for UMC and he previously served as Deputy Provost for UMC. He is a resident of the State of Missouri, and an employee of the University with administrative duties affecting Relator’s faculty, employment and contractual rights at the UMC. He may be served at: Room 116 Jesse Hall, University of Missouri, Columbia, MO 65211. 5.

Respondent Mark Ryan (hereinafter referenced as “Respondent Ryan”) is, and at all times

relevant herein was, Director of SNR, a resident of the State of Missouri, and an employee of the Page 2 of 30

University with administrative duties affecting Respondent’s faculty, employment and contractual rights at the UMC. He may be served at: Room 103 Anheuser Bush Natural Resources Building, University of Missouri, Columbia, MO 65211. 6.

Relator’s faculty appointment with Respondent UMC states, “If you accept this offered

employment, your appointment will be subject to all rules, orders, and regulations of the Board of Curators, including the academic tenure regulations” (Record, pg. 2). As they apply to faculty and UMC in Relator’s academic home in the Fisheries and Wildlife Sciences Department, the rules, orders and regulations of the Board (i.e. University of Missouri) and academic tenure regulations are published in the Collected Rules and Regulations (hereinafter referenced as “CRR”) (Chapters 310 and 320 are presented in Record, pgs. 3-11), in the CAFNR bylaws, guidelines, and policies (hereinafter referenced as “CAFNR Bylaws and Policies”)(Record, pgs. 12-26), and in the policies of SNR (hereinafter referenced as “SNR Policy 12”)(Record, pgs. 27-30). 7.

As a tenure-track professor, Relator has a valid expectancy in his employment and an

expectancy of employment that the terms and conditions of his employment and tenure status with Respondents would be based on the CRR, CAFNR Bylaws and Guidelines, and SNR Policy 12, on the terms of his appointment letter, and on the customs, practices, or de facto policies promulgated by Respondent UMC. 8.

Relator was denied promotion to the rank of Associate Professor and tenure, and the

given a terminal appointment that will end his employment with UMC on September 1st, 2015 (Record, pg. 31) by Respondents without abiding by the procedural and substantive requirements, terms and rights afforded Relator under Respondent UMC’s CRR, CAFNR Bylaws and Guidelines, and SNR Policy 12. This petition follows.

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9.

Relator was exonerated of a charge of research misconduct by a faculty committee and

affirmed by Respondent Loftin, but the damage to Realtor’s reputation and professional standing caused by Respondents’ failure to abide by the confidentiality provisions of Chapter 420.010 and Respondents’ failure to restore Relator’s reputation, despite requests for same, resulted in the denial of promotion and tenure and continues to cause harm to Relator. This petition follows. 10.

Since being appointed Assistant Professor, Relator exceeded the legitimate expectations

of UMC in a manner consistent with its promotion and tenure regulations governing his teaching, scholarly research, scholarly publications, extramural funding and service activities, including but not limited to: a.

American Ornithologists Union Elective Member.

b.

Outstanding Fisheries and Wildlife Advisor award from graduate students.

c.

Honored for contribution to international course on avian movements and migration technology by course organizers.

d.

New Faculty Teaching Scholar.

f.

Successfully taught numerous undergraduate and graduate courses.

g.

Invited or honoured speaker at more than 20 national and international events.

h.

Recipient of numerous research grants totalling more than one million dollars.

i.

Author or co-author of more than 40 publications and book chapters.

j.

Official science advisory to the Micronesian Kingfisher species survival plan.

k.

Oversaw multiple projects in Pacific island nations preparing for global change.

l.

Conservation advisor to International Union for the Conservation of Nature.

m.

Science advisor to U.S. Fish and Wildlife Service in Hawaii.

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11.

Relator’s appointment letter stated that his academic responsibilities include teaching one

(1) course during his first year of employment, two (2) courses during his second year, and an average of two to three (2-3) courses each year thereafter. 12.

Between September 2007 and July 2014 Relator exceeded expectations set out in his

appointment letter by teaching one (1) course during his first year, three (3) courses his second year, and an average of 2.6 multi-student courses per year thereafter. Additionally Relator taught a number of single-student research and special project courses. 13.

Relator’s appointment letter stated that he was expected to advise undergraduate and

graduate students. 14.

Between September 2007 and July 2014 Relator exceeded expectations by regularly

advising 18-29 undergraduates and he advised and co-advised three (3) postdoctoral fellows, one (1) doctoral student, and nine (9) master of science students. Further, Relator served on at least eleven (10) committees overseeing graduate degree progress by master of science students and doctoral students that were not under direct mentorship of Relator. Relator has overseen independent research projects and investigations for another six (6) graduate and undergraduate students. 15.

Relator’s appointment letter stated that he was expected to develop an Agricultural

Experiment Station research project during the first six (6) months of his employment. 16.

On or about February 2008 Relator exceeded expectations by developing an Agricultural

Experiment Station Research Project, which was within five (5) months of his employment. 17.

Relator’s appointment letter stated that he was to develop an extramurally funded

research program in wildlife ecology and conservation. 18.

Between September 2007 and July 2014 Relator exceeded expectations by garnering

research funding that amounted to more than one million four hundred thousand dollars Page 5 of 30

($1,400,000). Primary measures of Relator’s research productivity at UMC include the publication of more than twenty-eight (28) peer-reviewed articles, co-authorship of three (3) book chapters, and authorship or co-authorship of more than fifty (50) scientific presentations and more than ten (10) technical reports. 19.

Relator’s appointment letter described the process by which Relator was to be evaluated

during his pre-tenure probationary period, which included annual evaluations and a “three-year assessment” that would “identify [Relator’s] academic progress toward tenure,” and a link was included that directed internet browsers to the rules and bylaws of UMC. 20.

On or about April 28th, 2008 Relator was provided a 2007 annual evaluation, which

reported Relator’s overall score as “met overall expectations.” 21.

On or about March 19th, 2009 Relator was provided a 2008 annual evaluation, which

reported Relator’s overall score as exceeding expectations, and ranked as “productive.” 22.

On or about May 21st, 2010 Relator was provided a 2009 annual evaluation, which

reported Relator’s overall score as “met overall expectations.” 23.

On or about March 14th, 2011 Relator was provided a 2010 annual evaluation, which

reported Relator’s overall score as “met overall expectations.” 24.

On or about March 13th, 2012 Relator was provided a 2011 annual evaluation, which

reported Relator’s overall score as “met overall expectations.” 25.

On or about May 8th, 2013 Relator was provided a 2012 annual evaluation, which

reported Relator’s overall score as “met overall expectations.” 26.

On or about May 13th, 2014 Relator was provided a 2013 annual evaluation, which

reported Relator’s overall score indicating Relator “met overall expectations.”

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27.

On our about March 22nd, 2010 Relator was provided a letter written by his supervisor,

Respondent Ryan, which was submitted to Dean Thomas Payne reporting the positive result of the three-year assessment that was referenced in Relator’s appointment letter. Respondent Ryan wrote that Relator’s teaching evaluations were “good to very good,” that peer reviews were “very positive” and that Relator had a teaching-related publication in press at that time. Respondent Ryan further wrote that “in summary, Dr. Kesler exceeds [Respondent Ryan’s] expectations for teaching scholarship.” Respondent Ryan wrote that he “would expect ~9 – 11 peer-reviewed publications by the time [Relator] is considered for tenure.” Respondent Ryan also wrote that “it is typical in Natural Resource disciplines for the bulk of those publications to occur in the last 2 years prior to being evaluated for tenure.” 28.

On or about August 2012, upon knowledge and belief, at least six (6) expert reviewers

from Relator’s field, and from outside UMC, evaluated Relator’s qualifications and wrote letters to Respondent Ryan recommending that he should be granted tenure and promotion. 29.

On or about August 2013, upon knowledge and belief, an additional six (6) letters,

penned by expert reviewers from outside UMC, were sent to Respondent Ryan stating that Relator should be granted tenure and promotion. 30.

Upon knowledge and belief, no outside reviewers wrote letters indicating that Relator

should not be granted tenure and promotion. 31.

On or about February 28th, 2013, Relator compiled and submitted an application for

promotion and tenure. 32.

Relator’s application for promotion and tenure was not processed in a manner required by

the rules governing promotion and tenure, and the same rules and policies referenced in Relator’s appointment letter, in the following respects: Page 7 of 30

A.

On or about September 2013, upon knowledge and belief, Relator’s promotion and

tenure review package was impermissibly altered by Respondent Ryan in violation of the academic tenure regulations and CAFNR Bylaws and Policies and/or SNR Policy 12 when he inserted a subset of commentary letters from two (2) former graduate students who were of the opinion that Relator’s expectations were too high and that his mentorship program was too strict. During a prior 2012 review process, at least five (5) individuals presented letters about Relator’s program and mentorship. Upon knowledge and belief, Respondent Ryan selected the two (2) most minority negative letters from the 2012 set and inserted those into Relator’s 2013 application package, whereas at least three (3) positive letters from the 2012 process were excluded. Furthermore, in order to conceal the fact that the letters were from the 2012 review process, upon knowledge and belief, Respondent Ryan removed identifying information and dates from one or both of the letters. In addition, one of the two (2) former graduate students mentioned above submitted one letter in 2012 and another in 2013. Upon knowledge and belief, Respondent Ryan inserted two letters from the same person into the dossier, presenting one as an anonymous submission to fraudulently misrepresent the impact of negative opinion that would have to be weighed against the 12 positive student letters that had been submitted. B.

The fraudulent misrepresentation of the letters and the insertion of a critical subset

into Relator’s promotion and tenure dossier violates the rules and policies dictating what should be inserted into the dossier containing Relator’s application for promotion and tenure. Pursuant to SNR Policy 12, applications for tenure are compiled and submitted by Relator, not Respondent Ryan. Furthermore, information posted on the web site of the Office of the Provost dictates the particular items to be included in the dossier, and they do not include Page 8 of 30

letters from students. The CAFNR Bylaws and Policies (i.e. the Tenure guidelines section) also warn that “anecdotal comments from one or two people are generally not perceived as useful for evaluating the candidate. If information in this category is to be developed, it should be based on a method that can provide a legitimate sample of views.” Upon knowledge and belief, Respondent Ryan used no such sampling method, and rather he purposely handpicked a negative-biased subsample. Further, insertion of letters from 2012 into Relator’s dossier contradicted Respondent Ryan’s assurance to Relator that the 2013 evaluation would be de novo. C.

No election for School of Natural Resources Tenure and Promotion Committee

(hereinafter referenced as “SNR TPC”) members was conducted in March 2012. Rather, upon knowledge and belief, a faculty member from the Fisheries and Wildlife Sciences Department was assigned to the SNR TPC, and he served through relator’s evaluation in autumn 2013. Upon knowledge and belief, the assignee previously voted against Relator during a 2012 survey and was thus known to oppose Relator’s application for tenure. That he was appointed to SNR TPC (not elected) demonstrated bias against the Relator because, upon knowledge and belief, a majority set of faculty who supported Relator’s application were excluded from consideration and they were not provided with an opportunity to vote on their representative. These actions violated SNR Policy 12, which dictates that “The Department Chair of each discipline in the School of Natural Resources will conduct an election among faculty to determine the representative to the School of Natural Resources Tenure and Promotion Committee. Elections will be held in March and results reported to the Director and faculty.”

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D.

As in 2012, no election was conducted in March 2013 for the SNR TPC

representative from the Forestry Department. Rather, upon knowledge and belief, a faculty member from the Forestry Department was allowed to remain on the SNR TPC in violation of term limits that are clearly defined by the SNR Policy 12. SNR Policy 12 dictates that “The Department Chair of each discipline in the School of Natural Resources will conduct an election among faculty to determine the representative to the School of Natural Resources Tenure and Promotion Committee. Elections will be held in March and results reported to the Director and faculty.” E.

Rather than conduct an election for the Forestry Department representative to the

SNR TPC in March 2013, as SNR Policy 12 instructs, upon knowledge and belief, Dr. Shibu Jose was, upon knowledge and belief, encouraged to remain on the SNR TPC for an extended or sequential term, through Autumn 2013. Upon knowledge and belief, Dr. Shibu Jose began serving on the SNR TPC as a representative of the Forestry Department on or about April 1st, 2010, and thus had already served for three (3) years at the time of Relator’s 2013-2014 review process. Dr. Jose’s extended stay violated SNR Policy 12, which defines terms of service for committee members by stating, “Each member shall serve a three-year term beginning on April 1 the year in which elected.” The SNR Policy 12 further states, “No individual can serve sequential terms on the [SNR TPC], unless there are no other eligible candidates to serve on the Tenure and Promotion Committee from the Department.” F.

Dr. Shibu Jose previously voted against Relator’s 2012 application for promotion and

tenure, information that, upon knowledge and belief, was known by Respondent Ryan. Relator expressed concern about the makeup of the SNR TPC to Respondent Ryan on or about February 7th, 2013, and Respondent Ryan confirmed, “Under current policy Dr. Jose Page 10 of 30

serves through March [2013].” Nonetheless, in violation of SNR Policy 12, and in contrast to Respondent Ryan’s own writing, no election was held in March 2013 to identify a replacement for Dr. Jose and he continued to serve on the SNR TPC through Relator’s tenure evaluation in Autumn 2013. This occurred despite the existence of a majority of faculty members from the Forestry Department who were eligible to serve on the committee and, upon knowledge and belief, were supportive of Relator’s application for promotion and tenure. G.

On or about March 15th, 2013, Respondent Ryan, SNR Administrator, distributed to

faculty a set of proposed changes to the SNR Policy 12. However, the SNR Policy 12 prohibits policy changes being promulgated by administrators, in that SNR Policy 12 states only the SNR TPC – a faculty group – is “To develop SNR policy recommendations for consideration by the faculty.” Thus, Respondent Ryan’s policy changes were in direct violation of SNR Policy 12. H.

Pursuant to language in Relator’s appointment letter, which stated “If you accept this

offered employment, your appointment will be subject to all rules, orders, and regulations of the Board of Curators, including the academic tenure regulations,” Relator’s tenure evaluation should have been conducted using the rules in place at the time of his appointment. Despite protests from Relator, however, his tenure evaluation was conducted in SNR using the modified SNR Policy 12 that was developed and implemented by Respondent Ryan on or about April 2013, after Relator had already submitted his application for tenure on or about March 2013. The policy modifications allowed Respondent Ryan, an administrator, to exert undue influence on what previously had been a faculty-based tenure process. Page 11 of 30

I.

Upon knowledge and belief, on or about November 2013 Respondent Ryan made

disparaging presentations to the CAFNR Tenure and Promotion Committee (hereinafter referenced as “CAFNR TPC”). The CAFNR TPC referenced the presentation in a letter on or about November 15th, 2013, which stated that “outside hearings” were used to confirm a series of misinformed remarks to which Relator had no prior exposure. However, Relator was not given the option of being present or responding to the presentation, which violated CAFNR Bylaws and Policies (Part IV, Major Steps, #6) that states that the CAFNR TPC is required to allow tenure applicants to attend any presentations made to the CAFNR TPC by supervisors and to rebut misinformation presented in those hearings. The rule states that the CAFNR TPC “may request the testimony of the division leader. Such testimony may be given with or without the candidate being present. However, the candidate does have the option to be present.” On or about December 5th, 2013, Relator verbally questioned Dean Thomas Payne about why the rules had been violated and the Dean responded that he did not know. J.

Upon knowledge and belief, Respondent Dean advocated against Relator’s tenure and

promotion to the Campus Promotion and Tenure Advisory Committee (hereinafter referenced as “CAMPUS PTAC”), and/or to Respondent Loftin. These actions were violative of CRR 320.035.A.1-3, which indicate that Respondent Dean, in his official capacity of Interim Provost, was not assigned authority to provide opinions about tenure applicant qualifications. The rules are permissive in that they describe which people and committees shall participate. The rules CRR 320.035.A.1-3 dictate that college and division faculty participate in the tenure and promotion evaluations, and the “campus-wide promotion and tenure advisory committee” is to advise Respondent Loftin in his decision. The Page 12 of 30

CAMPUS PTAC voted in favor of Relator’s tenure. But the rules are also restrictive with regard to the Provost, because they dictate that the Provost’s role in the tenure and promotion process is to shepherd information and oversee the process. The CRR state that the Provost can be involved in providing opinions only “on campuses with no schools or colleges,” but Respondent was reviewed on a campus with schools and colleges and therefore the Provost’s participation was prohibited. On or about June 25th, 2014 Relator notified Respondent Dean of the violation of CRR Section 320, but the Interim Provost has not provided any indication that Respondent UMC intends to follow the very set of rules described in Relator’s appointment letter. K.

Pursuant to the policies and rules of Respondent UMC, Relator should be fully

advised about materials inserted into his dossier, and provided an opportunity to address or rebut that information. CRR 320.035.A.4.b states “… committees, chairpersons, deans … shall communicate their recommendations to candidates under consideration and give each candidate a reasonable time to submit written rebuttal to the recommendation so that both recommendation and rebuttal may be forwarded to the next level of review.” Similarly, CAFNR Bylaws and Policies state “… the candidate has the right to appeal to the next higher authority or body in the tenure and/or promotion process.” SNR Policy 12 states “Faculty members shall have the right to appeal a recommendation of the Committee or a decision of the Director concerning tenure or promotion.” L.

Pursuant to CRR 310.020.F.3 Relator shall also be furnished with the reasoning for

recommendations against his tenure and promotion. The rule states, “In the event of a recommendation at any level for nonrenewal of a regular appointment or for a terminal appointment, the faculty member shall be informed and, upon request, shall be furnished Page 13 of 30

with an explanation of that decision. The faculty member shall have an opportunity to request a reconsideration of the decision and to appeal the decision to the Chancellor.” M.

However, Relator was not provided with all relevant materials inserted into his

dossier and thus he was deprived of the reasoning for such decisions and the opportunity to form and submit appeals and rebuttals. Relator was denied his rights to be informed about concerns and to address criticisms as alleged in paragraphs 32 through 37, infra. 33.

In a conversation with Respondent Loftin on or about July 18th, 2014, and in a subsequent

email on or about July 21st, 2014, Respondent Loftin referenced criticisms from a report or letter generated by the CAMPUS PTAC. Relator has had no access to such a report or letter and thus has been deprived of his rights to address materials, which, according to Respondent Loftin, factored into his final denial of tenure for Relator. Rather, on or about April 1st, 2014, Relator received a positive letter from the CAMPUS PTAC declaring that the group recommended that he receive tenure and promotion. Not providing Relator an opportunity to read or respond to the letter from the CAMPUS PTAC was violative of CRR chapters 310 and 320, which provide promotion and tenure candidates the opportunity to address negative information inserted into promotion and tenure dossiers. Upon knowledge and belief, university officials prohibited committee members from releasing the report to Relator, thus preventing him from exercising his right to respond to criticisms and misinformation. 34.

On or about September 2013, upon knowledge and belief, a series of materials developed

as evidence for a research misconduct investigation were inserted into Relator’s application for tenure and promotion. Relator was not notified that the materials were inserted into his dossier and he was prohibited from viewing the materials in his dossier. Pursuant to CRR 420.010.D.4 and 5, information associated with the investigation was to remain confidential to the misconduct investigation, and thus should not have been inserted into the dossier containing Relator’s Page 14 of 30

application for tenure and promotion. The CRR 420.010.D.4 states that “Disclosure of the identity of respondents and complainants in research misconduct proceedings is limited, to the extent possible, to those who need to know, consistent with a thorough, competent, objective and fair research misconduct proceeding, and as allowed by law.” The research misconduct charge against the Relator was fully investigated by a faculty Research Misconduct Committee (hereinafter referenced as “RMC”) and found to be without merit. 35.

On or about September 2013, in hearings with the faculty of the Fisheries and Wildlife

Sciences Department and the SNR TPC, Relator was questioned about the research misconduct materials that had been inserted into his dossier by Respondent Ryan. Although he requested access to his dossier and the materials therein, Relator’s access was restricted and he was prohibited from viewing the very materials that were being used as the reasons for down-votes by the faculty. In violation of CRR 310.020.F.3 Relator was thereby not furnished with the reasoning for recommendations against his tenure and promotion, and he was prohibited from developing a sincere rebuttal or appeal that could correct misinformation. 36.

The CAFNR Bylaw and Policies (Part V, Portfolio/Dossier Documentation, #4), states

that “Candidates will indicate by signature whether they waive the right of access to the letters of recommendation by outside reviewers.” Relator did not sign any statement waiving the right of access to letters written by outside reviewers, and on or about December 3rd, 2013 Relator sent a note to Dean Thomas Payne asserting his right to see the letters. However, Relator’s right was denied and Relator was never allowed access to letters of recommendation by outside reviewers, and thus Relator has been denied his right to respond to materials therein. This denial is violative of CAFNR Bylaws and Policies, which clearly provide Relator’s right to access the letters and to respond to negative information. Further the restricted access to letters from outside reviewers was violative of Page 15 of 30

CRR 310.020.F.3, because Respondent Loftin used them as justification for denying tenure. Denial of access to the letters prohibited Relator from developing a sincere rebuttal or appeal that could correct misinformation. 37.

Relator was not provided explanations for Respondent Dean’s negative vote on Relator’s

tenure and promotion application despite requests via email on or about May 1st, 2014, in person on or about May 6th, 2014, in a letter dated May 14th, 2014, and in a final letter on June 24th, 2014. On or about May 6th, 2014, Respondent Dean indicated that he was concerned about “all of the events” surrounding a former student who registered a plagiarism complaint that was found to be without merit, but specific information about the Respondent Dean’s tenure denial was lacking. Relator therefore could not exercise his right to respond to criticisms or misinformation. The lack of explanation was violative of CRR 310.020.F.3, which states that Relator has the right to be “furnished with an explanation” for recommendations against tenure and promotion. 38.

Relator requested Respondent Loftin’s reasoning for tenure denial on or about July 1st,

2014, July 14th, 2014, July 21st, 2014, July 22nd, 2014, July 31st, 2014, August 11th, 2014, and on or about August 26th, 2014. After making a final determination to deny Relator’s tenure and promotion Respondent Loftin wrote a letter on or about August 13th, 2014, stating that he would provide a letter giving his reasons for denying tenure, but no such letter has ever been provided. In violation of CRR 310.020.F.3. Relator was not “furnished with an explanation” of Respondent Loftin’s decision, and thus Relator was denied his rights to rebut the decision. 39.

Upon knowledge and belief, Respondent Ryan inserted prohibited materials (including

unsigned letters recruited from two former students) into Relator’s dossier without Relator’s knowledge. These letters were referenced in a communication from the SNR TPC on September 27th, 2013, in a statement that referred to “unsolicited letters from your former students…” Page 16 of 30

However, Relator has not been granted access to the letters and thus cannot address the materials therein. Simply transferring critical comments from any such letters into evidentiary documents in Relator’s dossier without an opportunity for Relator to respond is in violation of CRR 310.020.F.3, which states that Relator has the right to be “furnished with an explanation” for recommendations against tenure and promotion. 40.

Relator was not provided access to promotion and tenure transmittal letters from the

Fisheries and Wildlife Sciences Department Chairperson, the letter from the SNR TPC, or the letter from the SNR Director, Respondent Ryan. Thus, Relator could not exercise his right of appeal to subsequent evaluators in violation of SNR Policy 12, which states that “faculty members shall have the right to appeal a recommendation of the [SNR TPC] or a decision of the [SNR] Director concerning tenure or promotion” and “a faculty member may appeal a decision of the [SNR] Director by petitioning the College Tenure and Promotions Committee.” 41.

On or about January 7th, 2012, by email and letter, Dr. Robert Hall, Associate Vice

Chancellor for Research, notified Relator of an allegation of plagiarism. Relator’s actions eventually were determined by the RMC not to be research misconduct. The allegation was made by a former student who had been hired to work in the laboratory of Josh Millspaugh, and conveyed by Respondent Ryan, both of whom the Relator reported for evidence of defrauding federal grant funding. In the email and in letter correspondence, Robert Hall provided an internet link to the University of Missouri policy on research misconduct and the written correspondence included a paper copy of the policy. The University policy on research misconduct referenced by Robert Hall is contained within CRR 420.010 (Record pgs. 32-40). 42.

Pursuant to CRR 420.010.D.4, the identity of the person being investigated for research

misconduct was to remain confidential, until the outcome of that investigation was known. Page 17 of 30

Respondents’ actions violated the confidentiality rules governing research misconduct in the following respects: A.

On or about September 2013, upon knowledge and belief, Respondent Dean, who

served as Deputy Provost at the time, instructed the SNR TPC via email that the committee had the “obligation” to simultaneously consider the same complaint being investigated by the RMC. Further, on or about March 2014, upon knowledge and belief, Respondent Dean personally addressed the CAMPUS PTAC about the research misconduct allegation. Upon knowledge and belief, the instructions from the high-ranking Respondent Dean damaged Relator’s reputation among the tenure and promotion evaluators. The Respondent Dean’s identification of Relator and discussion about the research misconduct allegation to the Tenure and promotion committees violated confidentiality provisions of CRR 420.010.D. B.

On or about September 2013, upon knowledge and belief, the SNR TPC was told of

the research misconduct charge against Relator, which was later determined to be unsupported. The committee referenced the accusation in a letter to Respondent on 19 September, 2013. And on or about September 23rd, 2013, Relator was asked by the SNR TPC to explain the details of the allegations to the committee during a short interview, and he was expected to demonstrate innocence at that time. The disclosure of Relator and the research misconduct charge to the SNR TPC was violative of CRR 420.010.D.4 which dictates confidentiality about those involved with such charges. C.

On or about September 23rd, 2014, Relator reminded the SNR TPC that there was an

ongoing research misconduct investigation and that the rules required strict confidentiality, but the SNR TPC continued the line of questioning, and then, upon knowledge and belief, referenced the allegations in their promotion and tenure transmittal letter on or about Page 18 of 30

September 27th, 2013. The SNR TPC’s requirement that Relator must demonstrate that the charge of research misconduct was unfounded, prior to the completion of the official investigation, and in order to receive a positive tenure recommendation from the SNR TPC was violative of the confidentiality provision of CRR 420.010.D.4. D.

On or about September 2013, upon knowledge and belief, Respondent Ryan inserted

the letter that was used as the basis for the allegation of research misconduct, and a series of evidence materials developed for the misconduct investigation, into Relator’s dossier containing his application for tenure and promotion. Divulging Relator’s identity and inserting the original document alleging Research Misconduct directly violated confidentiality provisions of CRR 420.010.D.4. E.

On or about October 2013, upon knowledge and belief, Josh Millspaugh and/or

Respondent Ryan informed the CAFNR TPC about the identity of Relator and the ongoing research misconduct investigation, which eventually concluded that the evidence did not support the charge of research misconduct. On or about October 28th, 2013, Relator was asked by the CAFNR TPC to explain the allegations to the committee during a short interview and he was expected to demonstrate innocence at that time. Relator expressed concern about the questioning because of the rule requiring confidentiality, but the CAFNR TPC continued the line of questioning. The CAFNR TPC’s requirement that Relator demonstrate to them that the charge of research misconduct was unsupported, prior to the completion of the official investigation, and in order to receive a positive tenure recommendation from the CAFNR TPC, was violative of the confidentiality provision of CRR 420.010.D.4.

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F.

On or about March 2013, upon knowledge and belief, the CAMPUS PTAC was

informed about the identity of Relator and the ongoing research misconduct investigation. Upon knowledge and belief, Respondent Dean disclosed the charge against Relator, and Relator’s identity to the CAMPUS PTAC, in violation of the confidentiality provision of CRR 420.010.D.4. G.

On or about May 6th, 2014, during a discussion with Respondent Dean about

Relator’s tenure application, Respondent Dean questioned Relator and expected Relator to demonstrate that his actions did not constitute misconduct. Relator reminded Respondent Dean that there was an ongoing investigation and that the rules require confidentiality, but Respondent Dean continued his line of questioning and then contradicted the campus committee’s positive recommendation by suggesting the chancellor should deny Relator’s tenure. Respondent Dean’s questions were violative of confidentiality provisions of CRR 420.010.D.4, which dictates confidentiality “consistent with a thorough, competent, objective and fair research misconduct proceeding.” H.

Upon knowledge and belief, on or about March 2014 information about the research

misconduct investigation of Relator was conveyed to The Ohio State University, where Relator was invited to interview for a faculty position. On or about April 6th, 2014 the chairperson of the Ohio search committee informed Relator that Relator would need to address the issues that were occurring in Relator’s home university in Missouri. On or about 30 May 2014, Robert Gates, the search committee chairperson, wrote to inform Relator that he and one other applicant ended up in “a dead heat” for the position, but the other applicant won the position. Upon knowledge and belief, Relator’s application would have been viewed more positively by voting faculty in Ohio, and Relator would have been offered the Page 20 of 30

position at The Ohio State University, if his reputation had not been impacted by the breach of confidentiality by Respondent UMC, which was in violation of 420.010.D.4. 43.

Pursuant to CRR 420.010.D.6, Respondent UMC is under a legal duty to restore

Relator’s reputation. This rule states, to wit: “The University shall undertake to the fullest extent reasonable all practical efforts, if requested and as appropriate, to protect or restore the reputation of persons alleged to have engaged in research misconduct but against whom no finding of research misconduct is made.” 44.

Furthermore, CRR 420.010.D.6 duplicates Code of Federal Regulations (hereinafter

“CFR”) Title 42 Section 93.304, which describes the policies that research institutions shall have in place in order to be eligible to receive research funding from the National Institute of Health. The CFR Title 42 Section 93.304(k) states that after conducting an investigation of research misconduct “All reasonable and practical efforts, if requested and as appropriate, to protect or restore the reputation of persons alleged to have engaged in research misconduct but against whom no finding of research misconduct is made.” 45.

On or about June 20th 2014 the RMC issued its findings that the charge of research

misconduct against Relator was not supported by the evidence. 46.

On our about July 3rd, 2014 Respondent Loftin concurred with the RMC, wherein he

affirmed the committee’s findings that the charge of research misconduct was not supported by the evidence. 47.

On or about July 16th, 2014, and August 17th, 2014, Relator formally requested that, in

accordance with CRR 420.010.D.6, Respondent Loftin address damages to Relator’s reputation that came about from the charge of research misconduct. To date, Respondents have made no attempt to make reparations and in so doing, Respondents have violated CRR 420.010.D.6. Page 21 of 30

48.

Each and all of the acts of the Respondents, UMC officers, agents and employees, as

alleged herein, were done or are threatened to be done by the Respondents, UMC officers, agents and employees, not as individuals, but under the color and pretense of the statutes, regulations, customs and uses of the United States of America. 49.

Respondents have refused to follow the university’s own rules, order and regulations,

including those referenced in Relator’s appointment letter and those referenced in the letter from Robert Hall on January 7th, 2013. Respondents continue to refuse to inform or explain to Relator why these rules were not followed by them. 50.

The Respondents willfully and intentionally inserted incorrect information into Relator’s

dossier, and they willfully and intentionally disclosed confidential information about a research misconduct plagiarism charge that was determined to be without merit. 51.

The failure of the Respondents to follow the rules, orders and regulations referred to in

Relator’s appointment letter that govern promotion and tenure processes, and govern research misconduct procedures, has resulted in damage to Relator’s reputation and to the denial of his promotion and tenure. RELIEF SOUGHT 1.

Writ of Mandamus A.

Respondents shall provide Relator with any and all materials included in all versions

of his 2013-2014 dossier for promotion and tenure, including but not limited to: the set of external evaluation letters inserted into his dossier; any other information or letters inserted into his dossier; letters or reports inserted by committees, Directors, Deans, and other Administrators; and the report or letter from the CAMPUS PTAC that was referenced by Respondent Loftin in person on July 18th, 2014, and in his correspondence on July 21st, 2014. Page 22 of 30

B.

Respondents shall provide Relator with an adequate time, not less than three (3)

months, to compose a new dossier for promotion and tenure at UMC. C.

Respondents shall conduct a tenure review of Relator’s dossier in accordance with

UMC’s academic tenure regulations including CRR Sections 310 and 320, CAFNR Bylaws and Policies, and SNR Policy 12. D.

Respondents shall not insert erroneous information into the new dossier or depart

from the rules referenced in Relator’s appointment letter, or the rules and policies of UMC, University of Missouri System, CAFNR, the SNR, and the Department of Fisheries and Wildlife Sciences that were in effect at the time Relator was appointed. E.

The membership of evaluating faculty in Fisheries and Wildlife Sciences Department,

the SNR TPC, the CAFNR TPC, and of the CAMPUS PTAC shall conform with the rules and regulations referenced in UMC’s academic tenure regulations which include CRR Sections 310 and 320, CAFNR Bylaws and Policies and SNR Policy 12. F.

Pursuant to CAFNR Bylaws and Policies, if supervisors are permitted to make

presentations to the CAFNR TPC, Relator shall be given the option of being present. G.

Pursuant to CRR Chapter 310, Relator shall be furnished with explanations of

decisions at any level indicating that he is not qualified for tenure and promotion, and he shall have a full opportunity to respond to any such information. Participants at all levels of the process will have full and equal access to official transmittal letters and Relator’s responses. H.

Relator shall be employed by UMC until his application for promotion and tenure is

adequately reviewed in accordance with UMC’s Academic Tenure Regulations (Chapters 310 and 320), CAFNR Bylaws and Policies, and SNR Policy 12, including, but not limited Page 23 of 30

to, the provisioning of a new terminal appointment at the conclusion of the process if promotion and tenure decision with respect to Relator is negative. I.

Respondents shall provide a letter to all persons with actual or constructive

knowledge of the charge of research misconduct that explains that the charge of research misconduct was determined to be unsupported by evidence, and that describes how Respondents intend to conduct a full and complete restoration of Relator’s reputation. J.

Respondents shall distribute a letter to faculty, staff, and students that were alerted to

the charge of research misconduct, which explains that the allegation was determined to be unsupported by the evidence, and that requests a full and complete restoration of Relator’s reputation. 2.

Writ of Prohibition A.

Respondents shall not provide any information to any reviewing body or reviewing

person with respect to Relator's application for promotion and tenure, except those communications specifically provided in this Court's order, or in the rules and regulations governing promotion and tenure. B.

Respondents shall not reduce in any way the benefits of employment, opportunities of

employment, teaching opportunities or other emoluments of employment that were provided to Relator in previous years without the express permission of this court until this order is finally complied with. C.

Respondents shall not distribute any information about the allegation of research

misconduct, or about the determination, without Relator’s first having an opportunity to inspect those materials and approve of their contents.

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D.

The conditions of Relator’s employment shall not change unless mutually agreed by

Relator and Respondents. Respondents shall not deny to Relator and Relator will retain all rights to his equipment, laboratory space, research funds, mentorship, and teaching assignments. E.

All persons involved in Relator’s previous promotion and tenure processes, as

described in this Petition who made any adverse recommendations or decisions, with respect to Relator’s promotion and tenure, shall be prohibited from making any recommendations with respect to the promotion and tenure process ordered by this Court. F.

Pursuant to CRR Chapter 320, representatives from the Office of the Provost shall

not evaluate or provide input on Relator’s qualifications for tenure and promotion. G.

The Court, after final hearing, determine that Respondents were without authority to

issue Relator a terminal appointment, and that Respondents be permanently prohibited from providing false information and from taking any action in reliance on previous erroneous rulings with respect to promotion and tenure and that this Court make its preliminary order in prohibition and mandamus absolute. REASONS WHY THE WRITS SHOULD ISSUE 1.

The UMC’s rules, orders, regulations, procedures, policies, bylaws and guidelines as

proscribed and incorporated as terms and conditions of Relator’s appointment were not followed with respect to Relator’s 2013-2014 tenure and promotion review. 2.

The UMC’s procedures and policies, as defined in Respondent University’s January

7th, 2013 letter, and in the letter of Charge on August 2nd, 2013, were not followed with respect to Relator’s research misconduct charge.

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Without this Court’s issuance of these writs, Relator will be terminated and he will be

3.

unable to be evaluated for promotion and tenure under Respondent University’s Academic Tenure Guidelines, have his professional reputation and standing repaired as a result of the charge of research misconduct, and ascertain whether he can access Respondent University’s grievance process to challenge Respondent Loftin’s denial of promotion and tenure. He will have an inadequate remedy at law. 4.

Without this Court’s issuance of these writs, Relator’s reputation will remain

damaged from the research misconduct proceedings, and his prospects of attaining gainful employment will be damaged and diminished, despite a determination that the charge of research misconduct was unsupported by the evidence. 5.

Had Respondents followed its own published procedures, rules and regulations, as

referenced and incorporated into Relator’s appointment letter, in communications associated with research misconduct investigation and herein, Relator’s reputation would be unblemished, and Relator would have been granted promotion and tenure as evidenced by the following: a. At least 12 expert evaluators in Relator’s field that work outside UMC sent letters recommending that Relator should be granted tenure and promotion. b. Relator’s colleagues in the Fisheries and Wildlife Sciences Department voted overwhelmingly in support of his promotion and tenure (positive 4-1 vote). c. The CAMPUS PTAC advised Respondent Loftin that Relator should receive promotion and tenure. d. Relator’s annual evaluations were at or above expectations for all years he was employed by University of Missouri (2007 to 2014).

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e. Relator greatly exceeded written expectations for promotion and tenure that were expressed by his supervisors in his “third year review.” f. Relator’s graduate mentorship is excellent, as evidenced by the “Outstanding Graduate Advisor” award presented to him by students in the Fisheries and Wildlife Sciences Department. g. Relator’s research program was sustainable for the foreseeable future. He obtained substantial research funding and published numerous research products, which far exceed written expectations by his supervisors (9-11 publications expected and 28 actually produced at MU). h. Relator’s reputation was substantial, as evidenced by the many invitations to present his science, serve as a peer-reviewer, and to interview for a faculty position at The Ohio State University. 6.

The charge of Research Misconduct was determined to be unsupported by the

evidence. 7.

Relator’s productivity has continued in recent months and years.

8.

Relator was issued a terminal appointment that will expire soon.

9.

Respondents wrongfully issued a terminal appointment.

10.

Relator has attempted to utilize Respondent UMC’s rules, regulations, policies, and

guidelines with respect to promotion and tenure but has been denied the opportunity to be evaluated under those rules. 11.

Relator has attempted to utilize Respondent UMC’s rules, regulations, policies, and

guidelines with respect to having his reputation restored after a determination that the charge of

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research misconduct was unsupported by the evidence, but Respondents have been nonresponsive to Relator’s requests to restore his reputation. 12.

Relator is unable to determine whether he is allowed to file a grievance, pursuant to

CRR Chapter 370, because Respondent Loftin has not provided any explanation, as requested, as to why Relator’s application for tenure and promotion was denied. 13.

Because Respondents failed to comply with its own rules, orders and regulations with

respect to Relator, he has no way of enforcing his rights and protecting his job and reputation except by an action in this court. 14.

Unless this Court requires Respondents to comply with its own rules, orders and

regulations with respect to Relator’s application for promotion and tenure, his employment will soon end and he will suffer irreparable harm. 15.

The rights Relator seeks to vindicate though his mandamus proceeding in this Court

are clear and simple administrative duties which are not discretionary in nature; hence mandamus is proper. It has been administratively determined by the Respondent University’s CRR, Academic Tenure Regulations, CAFNR Bylaws and Policies, and SNR Policy 12 that the rights Relator seeks to enforce are clearly established and Relator has a right to the relief requested. 16.

This Court (i.e. Presiding and Honorable Judge Ellen Roper) in Case No.

04CV168093, previously issued a writ ordering the University to take no adverse action against the Relator until such time as it followed its own rules and regulations pertaining to tenure-track faculty and the evaluation for promotion and tenure. 17.

This Court (i.e. Presiding and Honorable Judge Ellen Roper) in Case No. 04BA-

CV168093 rejected the University’s argument that Relator could not demonstrate he had a legal right

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or expectation that the University would abide by its rules and regulations, and Respondents had a legal duty to follow UMC’s rules and regulations. 18.

Respondents lack jurisdiction to proceed with the scheduled termination of Relator’s

employment because Respondents have not complied with its own rules, orders and regulations governing Relator’s employment. The referenced rules, orders, regulations and policies vest in Relator a clear and absolute right to the processes described. Respondents have refused to give Relator a reason for the denial of his promotion and tenure, have refused to make any attempt to undo the harm to his reputation caused by the charge of research misconduct, have refused to abide by the procedures governing his application for promotion and tenure, and have acted in violation of the confidentiality provisions of Chapter 420.010 and the procedural requirements of the academic tenure regulations to ensure that Relator’s application for promotion and tenure was conducted in accordance with said procedures and thus ensuring an unbiased assessment of his scholarship, teaching and service. 19.

Though it is undisputed that the Respondents must follow its own rules, orders and

regulations with respect to applications for promotion and tenure and a charge of research misconduct, Respondents have blatantly, willfully and purposely refused to follow its own rules, orders and regulations. 20.

If this Court requires Respondents to follow its own rules, orders and regulations it is

substantially likely that Relator Dylan Kesler will be successful in his application for promotion and tenure and the stain on his professional reputation and standing as a result of the charge of research misconduct will be removed. WHEREFORE, Relator prays that this Court accept jurisdiction of this case and exercise its power to issue a preliminary writ and to hear and determine these writs of mandamus and Page 29 of 30

prohibition. Pursuant to Supreme Court Rules 94.04 and 97.04, Relator requests that this Court enter its preliminary orders in mandamus and prohibition, which mandate Respondent to immediately proceed with Relator’s application for promotion and tenure process as proscribed by its own academic tenure regulations, and that pending a hearing on the merits of these writs, prohibit Respondents from all further action with respect to its pending dismissal of Relator from employment. Relator and professor Kesler respectfully requests that this Court review his petition, the attached record of exhibits, and his attached suggestions in support thereof, and issue its Writ of Mandamus and Writ of Prohibition requiring Respondents to comply with its own rules, orders and regulations, provide him with the process due him with respect to his application for promotion and tenure and restoration of his reputation, and prevent the Respondents from taking any action that would lead to the loss of employment of loss of any employment benefits for professor Kesler until such time as Respondents, each of them, has fully complied with the Court’s orders. Respectfully Submitted, JOHNSTON & SMITH, LLC __/s/ George S. Smith________ George S. Smith, #53019 2800 Forum Boulevard, Ste 3 Columbia, Missouri 65203 Telephone: 573-499-1616 Fax: 573-449-3004 __/s/ Randall B. Johnston____ Randall B. Johnston, #35936 2800 Forum Blvd., Suite 3 Columbia, MO 65203 Telephone: 573-499-1616 Fax: 573-449-3004 Attorneys for Relator

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