V. The Parker-Nye Correpondence
A. Parker's Letter of October 25, 1991.
After his summary expulsion, Nehls asked Michael E. Nye, a local attorney and a member of the Michigan state legislature, to assist him. On October 23, 1991, Nye wrote to Parker, the college's attorney, and asked for copies of the documents Nehls saw in Barker's hands. Nye also charged that Nye was expelled because "Mrs. Barker was out to stop Mark from publishing the ‘Spectator.'" Finally, Nye protested the lack of due process in expelling Nehls and cited the applicable provision of the "Hillsdale College Code of Conduct," which provides that students are subject to discipline "through due process."
Parker answered by letter dated October 25, 1991 but did not forward copies of the documents Nye had requested. He would ultimately produce them on October 30, 1991, a mere five days before Roche heard Nehls' appeal. Instead of producing the document, Parker defended Barker's actions and his own refusal to produce the documents requested. Parker's letter stated the following:
You should be advised that Mr. Nehls . . . was . . . discharged for his unauthorized acts of entering into contracts on behalf of the College. Mr. Nehls has all of the information which you desire[,] including all of the agreements with TCP [sic] Publishing Company.
Mr. Nehls probably has told you that he was the treasurer of the Student Federation. He had no authority on his own to solicit advertising or engage in any other fund raising activity on behalf of the College. This type of endeavor must be expressly approved not only by the Federation, but also by the advisor.[] Mr. Nehls violated these principals [sic] and this was discharged as a student from Hillsdale College.
From Harwell's investigation, we know that as of the date of the letter, the college's attorney had begun contacting local merchants. This fact, the tardy production of the documents requested, and the content of Parker's letter indicate that the college was bluffing about its knowledge of TCB's purportedly fraudulent solicitation of the local merchants. Parker could not possibly know whether Nehls had copies of "all of the agreements with TCP [sic] Publishing Company." Nehls was a signatory to the Distribution Contract only. He had not signed the Sales Contracts, which alone of the two contracts is relevant to the issue of how local merchants were solicited. If Parker had obtained copies of the Sales Contract from local merchants as of October 23, 1991, he would have known this fact. He would also have known that the transaction described in the Sales Contract was not a fund-raising project for the college. Moreover, even if Nehls had signed all of the relevant contracts, Parker could not know that Nehls had them in his possession. Undergraduates are notoriously unorganized. Parkers was simply covering a bluff when he declined to produce the documents Barker had held in her hand on October 22, 1991.
In addition Parker's letter shows complete confusion about the charges against Nehls. Barker's letter had accused him of entering into an unauthorized contract which somehow or another was followed by a "false representation" of the college to solicit advertising from local merchants. Parker charges Nehls with "soliciting advertising or engaging in . . . fund raising activity on behalf of the College," a completely different charge. The former charge alleges deception, possibly by a third party, and no profit to the college. The latter charge merely accuses Nehls of unauthorized activity, from which the college profited. Certainly Parker, who presumably has gone to law school, must have understood the difference between fraudulent conduct and unauthorized conduct. In addition, Parker's version of the charges is completely inconsistent with the demand that Nehls return the money. If Nehls had engaged in unauthorized fund-raising, the money would be in the college's hands, not his. It is odd that Lawyer Parker did not notice the inconsistency, since Barker's expulsions letter advised Nehls that he must deal with Parker in "matters related to the funds fraudulently solicited." More than sloppiness is at work here.
B. Parker's Letter of October 29, 1991.
On October 28, 1991, Nye wrote to Roche formally requesting an appeal and reconsideration of his dismissal. In the same letter, Nye also protests the lack of due process in the expulsion. According to Nye, "[t]he college's Code of Conduct states [that] ‘students or others are subject to discipline through due process' CarolAnn [Barker] did not have a hearing on the matter or anything close to due process. To ask a student to come to an office and then hand them a letter of dismissal does not meet any form of due process." On the same day, Nye also wrote to Parker to renew his request for copies of the contracts Barker had held in her hand when she notified Nehls of his expulsion, six days before.
Roche's executive assistant, Carolyn Spencer wrote to Nye on October 29, 1991 to schedule the "appeal." She stated that "[i]t is the consensus of both President Roche and Mr. Parker that in the interest of time and consideration, an appeal for reconsideration should be addressed promptly. This appeal has been scheduled for Friday, November 1 at 10:00 a.m. in the President's Office. Mr. Parker will be present as well as Mr. Ken Cole and Dean CarolAnn Barker."
On October 30, 1991, Parker responded to Nye's requests for documents by forwarding to him "the contract purportedly entered into between Hillsdale College and TCB Publishing by Mark Nehls, who is designated as the authorized representative for the College. Additionally, I have a document entered into between Domino's Pizza of Hillsdale and School Folders, a division of TCB Publishing. . . . I have been told by some of the individuals who purchased advertising that they would not have advertised had they known that this was not a college sponsored and authorized function."
As of October 30, 19191, Parker must have completed contacting the college's three pet businesses, Broad Street Market, Hillsdale County National Bank, and Domino's Pizza. For reasons given above, it is unlikely that Parker's letter accurately expressed their sentiments about the willingness to purchase advertising from TCB. Certainly, they would not have purchased space in the folders if they had known the furor that would ensue. If there had been no furor, it is unlikely to have mattered to them whether the college had endorsed the folders or not.
Parker's letter of October 30, 1991 also undertook to defend the procedures Barker had used to expel Nehls. He wrote: "I also wish to advise you, as bearing on the due process issue, that Mr. Nehls chose not to discuss this matter during the initial phase of the disciplinary procedure, ie. the session with H. Kenneth Cole and CarolAnn Barker." This defense of Barker's conduct is shameless, even for the professional yes-men who swarm Central Hall. The decision to expel Nehls had been taken prior to the meeting in Cole's office and sprung on Nehls without so much as one minute's warning. It was coupled with a demand to repay several thousand dollars and threats of a lawyer. Nehls was wise to keep his mouth shut before a woman who was plainly treating him as a political enemy. If he had said anything, it most certainly would have been used against him.
Finally, Parker's letter establishes the procedural rules--if that is what they should be called--for the "appeal" in the following passages:
If Mr. Nehls' appeal is to be given careful consideration he should provide a written defense of his actions before his appearance before George Roche, Hillsdale College President[,] and have said defense in the hands of the College by 5:00 p.m. on Thursday, October 31, 1991.
Finally, the appeals hearing (assuming Mr. Nehls' defense has been received the day before the hearing) will proceed as follows: Mr. Nehls will be allowed to make any statements he wishes to make; the President will then be given the opportunity to question Mr. Nehls; thereafter, Mr. Nehls will be given an opportunity to pose questions to the President of the College; and if it is desirable, the attorneys may ask additional questions. This procedure is not adversarial in nature, the Rules of Evidence are not going to be applied, and we do not plan on having anyone present, including members of the public or staff, who are not directly involved in the event.
It does not take much legal acumen to see that the procedures specified are a further violation of Nehls right to fair procedures. He is given less twenty-four hours to prepare a defense. At the minimum, preparation should have included interviewing the eight allegedly aggrieved local merchants to ascertain what was said to them and by whom, a task impossible to complete on such short notice.
Parker's letter is a real laugher in other respects as well, especially when it states that the proceedings would not be adversarial in nature and that the rules of evidence would not apply. The college had treated Nehls as an adversary from the start. One does not expel a friend summarily or withhold documents necessary to his defense. If the appeals hearing before Roche was not adversarial, it was because Nehls was not permitted to defend himself vigorously against charges for which the college provided no real proof. As Parker said, the rules of evidence would not apply.