A former Trump official claims his university is attempting to prevent him from running for Congress in New Mexico.
New Mexico State University threatened to fire business-law professor Dr. Gavin Clarkson if he did not return from a leave of absence, according to documents The Daily Caller News Foundation obtained. While the college approved Clarkson’s 2017-2020 leave in June, it notified the professor in January he was to return in four days.
Clarkson informed New Mexico State that he had accepted an appointment to be deputy assistant secretary for policy and economic affairs in the Department of the Interior’s Office of Indian Affairs in a June 19 letter requesting an unpaid leave of absence until January 2020.
“As I read the university’s regulation, professional leaves must directly benefit the university and my professional development,” Clarkson wrote to the school in a letter TheDCNF acquired. “While I am fairly certain that a $1 billion economic stimulus for New Mexico, improving tribal economic infrastructure, and human capital development among the tribal nations of New Mexico clearly benefits the university, I also think my service as [deputy assistant secretary] provides a direct reputational benefit to NMSU and the College of Business.”
The professor waived his right to NMSU payment of part of his health insurance “so that no NMSU funds will need to be spent for my benefit during my leave.”
“I justified my extended leave because I’m working on issues that are critical to the economic livelihood of people in New Mexico,” Clarkson informed TheDCNF. “When my students graduate, they can’t get jobs in southern New Mexico. There are very few private employers. You either work for the government, or you work for the military. That’s it.”
New Mexico State approved Clarkson’s request for an unpaid leave of absence until January 2020 on June 28. In its reply, the university does not explicitly state the professor’s leave of absence hinges on his employment at the Department of the Interior.
Clarkson said he left the department on Dec. 29 and stepped down to pursue a seat in New Mexico — Congressional District No.2. He announced his candidacy on Jan. 8. On Jan. 12, New Mexico State sent him a letter instructing him to return to teaching duties on Jan. 16.
“The original approval for leave was specific to supporting your appointment,” NMSU executive vice president and provost Daniel J. Howard wrote in a letter The DCNF obtained, “with no agreement for leave for any other purpose.”
Howard did not mention why the school was informing Clarkson just four days before the spring 2018 semester began. Clarkson claimed he’d called Howard on Friday (Jan. 12) and left his cell-phone number when told Howard had already departed. The provost allegedly did not call the professor back over the weekend, and Clarkson wrote him back on Jan. 16 — the day he was expected to continue teaching.
“Your June 28, 2017, letter granting my leave did not specify that the leave was contingent on anything or subject to revocation,” Clarkson said, according to the letter The DCNF obtained. The professor declined to return from leave.
“The policy that grants professional leave without pay says all conditions of the faculty member’s leave, including any specifics of the faculty member’s return to the campus, must be in writing,” Clarkson told TheDCNF.
But the university argued that Section A of the policy — the leave must be taken “for the purpose of undertaking some project that will directly benefit the university and the person’s professional development” — necessitates Clarkson’s return to work.
Howard noted to Clarkson that the school needs him on campus, in a Jan. 23 email TheDCNF acquired. The professor said he would be willing to teach courses while still on leave for that reason.
Indeed, Section G, 8.53, of NMSU’s Mexico State’s administrative rules and procedures states “all conditions of professional leave without pay, including the status of the individual upon return to the university and (if appropriate) the effect of this period on tenure and promotion eligibility, must be in writing prior to the leave period.”
Clarkson’s next meeting with New Mexico State is scheduled for March 1. Neither Howard’s office nor New Mexico State University responded to TheDCNF’s multiple requests for comment.
TheDCNF discussed Clarkson’s situation with Tyson Langhofer, a senior counsel and director for the conservative, legal nonprofit Alliance Defending Freedom’s Center for Academic Freedom.
“This case will hinge on the court’s determination of two questions,” Langhofer told TheDCNF. “First, what constitutes the contract granting the leave of absence. Second, what is the intent of the parties.”
He noted Section A of NMSU’s professional-leave policy would allow the school to claim it permitted Clarkson to take his leave of absence based on “representations” the professor made in his application of benefits the university would receive.
“Dr. Clarkson may be able to rebut that argument if he is able to demonstrate that the university will receive those same benefits through his work in Congress,” said the senior counsel to TheDCNF.
But he also noted the compelling argument Section G of the policy would grant Clarkson, saying it would allow the professor to argue NMSU could not “add a condition” that did not appear in the school’s letter granting Clarkson his leave.
“Dr. Clarkson’s best argument is that the letter granting the leave constitutes the entire contract and that the court must look to the letter, and only the letter, to determine the terms of the contract,” Langhofer told TheDCNF, speculating on the possibility of a court battle between the professor and NMSU. “If the court determines that the letter is the entire contract and the letter does not include a provision requiring continued employment at the Department, then Dr. Clarkson will have a good chance of prevailing. If, however, the court decides to look to evidence outside the letter, then the University’s chance of prevailing greatly increases.”
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