By Tim Eberly
Former Montana State University-Northern women's basketball coach Kevin Emerick has filed a lawsuit seeking reinstatement to his coaching position.
Emerick's attorneys, Dan Boucher and Robert Peterson, filed suit in District Court in Hill County on Dec. 20. District Court Judge John Warner denied the attorneys' request for a temporary restraining order but set a hearing for Thursday on their request for a preliminary injunction.
"It's not unexpected," MSU-N Athletic Director Ted Spatkowski said of the lawsuit. "He likes the job, and to be honest, it's a great position. And I don't think he wants to give it up."
In his ruling, Warner said it is "possible that (Emerick) has a protected property or liberty interest that has been infringed by (MSU-N)."
At the hearing, attorneys for MSU-N will be required to present reasons why Emerick should not keep his job. At Emerick's request, Warner has removed himself from the case. District Court Judge Marc Buyske of Toole County will preside at the hearing.
MSU-N Chancellor Alex Capdeville, who could not be reached for comment, suspended Emerick from his coaching job with pay on Dec. 12 and said Emerick's contract would not be renewed when it expires June 18. Capdeville allowed Emerick to continue teaching his two physical education classes for the fall semester, which concluded Thursday when Emerick submitted his final grades.
Capdeville acted after reviewing results of an investigation he had ordered after Emerick, 41, accused a former Skylights assistant coach and recruiter of sexual misconduct. The reports, by MSU-Bozeman's human resources director for affirmative action, have not been made public or released to any of the parties involved.
Cathy Conover, director of university relations for MSU, said Bush conducted a comprehensive investigation and agreed with Capdeville's final decision.
"She felt the action that was subsequently taken was appropriate based on the review that she conducted," Conover said today. "And we hope the court supports that."
Emerick alleged that Jerry Wier had inappropriate sexual contact with Anna Fabatz while recruiting her to play for the Skylights and during her freshman season. Fabatz, now 23, is Emerick's girlfriend and played under him during her fourth and final season in 2000-01.
Emerick initially made allegations against Jerry Weir in a Sept. 25 meeting with Spatkowski, he said. Spatkowski said he first learned of the allegations the day before Oct. 3 meeting with Capdeville and Emerick, when Emerick reiterated the accusations toward Wier. The three met on Oct. 3 to discuss Fabatz's removal from her position as student assistant coach, a position she held briefly this preseason.
Wier worked as an assistant coach for the Skylights, as MSU-N's sports information director and a volunteer recruiter before becoming a part-time property manager for the university's foundation last year.
Emerick sent a mass e-mail to about 100 MSU-N staff and faculty members on Oct. 11 repeating the allegations against Wier. Shortly after the e-mail was circulated, Wier told a reporter the allegations were false.
Bush issued two reports one regarding information about Wier and Fabatz and the other about Emerick and Fabatz. Capdeville has declined to release them to the public or to the parties involving, as attorney's for MSU cited issues of privacy. But Emerick said shortly after his suspension that Capdeville told him he was being released because of information he received that Emerick was having a social relationship with a student.
In his civil lawsuit, Emerick claims MSU-N violated his right to due process by failing to notify him of an official complaint againt him and failing to provide him with an official cause for his dismissal.
Emerick's suit also said he wasn't given an opportunity to question people interviewed during the investigation and has been denied the chance to see the 20-page report."I haven't even known what the charges are against me," Emerick said Thursday. "It's really bizarre."
Though the investigation originally focused on Wier's behavior with Fabatz, Spatkowski has said, it expanded to include Emerick when Bush received allegations about him during the course of her interviews.
After his suspension, Emerick said he would not give up his job until he was provided the reason for his dismissal. On Thursday the deadline Capdeville set for Emerick to vacate his office in the athletic department Emerick gave his keys to Spatkowski.
"I did exactly what they asked," said Emerick, who was hired in August 2000. "I turned in my keys and my grades to Ted and moved out of the office."
Included in the court documents was a letter Emerick received on Dec. 19 from Capdeville outlining the reasons behind the suspension. "Even though I am not required to provide you with such reason, I am doing so as a courtesy," Capdeville wrote.
In the letter, Capdeville said Emerick violated the code of ethics of the MSU-N Department of Health, Physical Education, Recreation and Athletics by "maintaining a personal relationship with a student." In her fifth year at MSU-N, Fabatz is still a student and plans to graduate this year.
"That's the closest they came to providing a reason to us" for Emerick's suspension, Boucher said.
Wrote Capdeville: "I believe it is totally inappropriate for you to act as instructor for a student with whom you are engaged in a personal relationship and I have previously advised you that I felt your proposal to assign Ms. Fabatz as a coach was also inappropriate."
Emerick briefly hired Fabatz as a student assistant coach in the preseason until Capdeville and Spatkowski told him he couldn't in the Oct. 3 meeting. Emerick also taught Fabatz in one of his classes this fall.
Emerick said Spatkowski gave him permission to keep Fabatz in the class as long as Spatkowski supervised and graded her course work. Emerick said he was given permission from Capdeville and Spatkowski to pursue a relationship with Fabatz last spring, after her final season with the Skylights. Spatkowski said he and Capdeville permission to date Fabatz and that Emerick admitted he was dating her at the start of the school year.
Capdeville said in the letter: "You have failed to provide complete information about the nature of your relationship with Ms. Fabatz and you have misrepresented my statements to you concerning this matter."
Capdeville also criticized Emerick's decision to "widely publicize matters of a personal nature about a student of MSU-N."
Fabatz has said Emerick wrote the letter in her presence at his Havre residence, with her approval.
"Having made the decision not to renew your contract, I believed that if I did not make an immediate change in leadership in the MSU-N women's basketball team and replace you as Head Coach, the program would suffer," wrote Capdeville.
Emerick is not seeking monetary damages in the suit, but said the untimely suspension has inflicted damage upon his reputation in the coaching ranks.
"These are the years that propel an individual, like me, to a Division I head coaching job," Emerick wrote in an affidavit that accompanied his lawsuit. "For Montana State University-Northern to suspend me, in the middle of a winning season, without giving me an opportunity to clear my name, is causing me irreparable injury not only to my reputation but also to any future opportunities for me in the coaching profession."
Skylights assistant coach Joan Steffen has assumed temporary coaching duties while Spatkowski searches for a replacement. No coach will be hired until after the court hearing, Spatkowski said. The Skylights left this week for a holiday tournament in Arizona.