Senate Faculty Caucus Minutes
January 26, 2005
(Approved)
Call to Order
Chairperson Lane Crothers called the meeting to
order immediately following the Academic Senate meeting.
Approval of Faculty Caucus Minutes of December 8,
2004
Motion: By Senator Borg, seconded by
Senator Wylie, to approve the Faculty Caucus Minutes of December 8, 2004. The
minutes were unanimously approved.
The caucus unanimously elected Allan Lessoff of the
History Department to the Student Code Enforcement Review Board’s University
Hearing Panel. His term of service is Spring 2005 through Spring 2007.
01.18.05.01
ASPT Calendar
Senator
Crothers:
We need to have a brief discussion of the ASPT calendar and a legal opinion
that the Provost has received. We need to discuss some short-term adjustments
that we are making in the appeals process procedurally.
Provost
Presley:
The substance of what I am going to talk about is contained in a memo that the
University Review Committee sent to the Faculty Review Committee on December 17th.
This was to answer a query that the 2004 Chair of the FRC sent to the URC. I am
reporting in my role as a member of the URC and my role as Provost. Cal McLean,
who was the Chair of the FRC of 2004, asked the URC to issue a clarification of
the “temporal ordering”, which is the time sequence, of the appeal process for
promotion and tenure. In 2004, I was told that that was the first time that
this version of the FRC had dealt with appeals when I was asked to provide an
explanation of the reasons why I made the recommendations that I had made about
various candidates who wished to appeal. I was told by the Board of Trustees’
legal counsel that under no circumstances could I do that. So, in fact, the
only thing that I could provide in my office as Provost was what I had provided
the candidates—a yes or no recommendation for promotion or tenure. The FRC was
a little non plused by that and did not know what to do. Frankly, a couple of
them complained to URC members and to me that some of what they had done, no
matter how hard they had worked, was a waste of time. That is undoubtedly so
because without an explanation of my thinking, how can they possibly appeal my
decision?
The URC dealt with this at some length. Obviously
they consider it a serious issue and I will just read their memo (document
#12.20.04.01) to you:
“The URC wishes to convey the following findings:
·
Due to advice provided by the Board of Trustees’ legal counsel, neither
the provost nor his/her representative can appear before, or provide
information to, the FRC regarding personnel recommendations made by the provost.”
·
The administrative recommendations of the provost, in effect then, are
not subject to review or appeal by a faculty committee.
·
In view of the information above, the URC suggests that the FRC may
wish to review or hear appeals responding to the recommendations of the DFSC/SFSC,
CFSC or provost and notify the DFSC/SFSC, CFSC and provost of the filing of an
appeal prior to the issuance of the provost’s recommendations. The URC
recommends that the FRC forward its findings simultaneously to the president, provost,
CFSC, DFSC/SFSC, and appellant in advance of the date required in the current
calendar. This would allow time for the provost to consider the FRC findings as
he/she formulates his/her final recommendations to the president.
The URC believes that the current ASPT wording and
procedures regarding the FRC are not workable, are time consuming, and—most critically—do
not fully protect faculty status concerns. Ensuring that faculty members have
appropriate safeguards within the faculty-review process is the University
Review Committee’s highest priority.”
They intend to follow up this finding by appointing
a working subgroup to develop proposed enhancements to the ASPT policies and
then, as required of course, the URC will make a recommendation for changes in
the ASPT policies to the Faculty Affairs Committee and the Academic Senate. That
is their correspondence with the Faculty Review Committee.
Senator
Crothers:
For clarification, they are saying that, as a practical matter, the FRC appeal
that anyone might make of their promotion and tenure documents needs to happen
no later than after the college level but before it goes to the Provost’s
office. If there is no information coming from the Provost, there is no basis
for an appeal. That is, I think, the simplest way to say it.
Provost
Presley:
You are exactly right. They think that that it is not only logically required,
but that it is, in fact, an improvement. Here are the reasons why. First, it
does not present the logical conundrum to the FRC—how do you appeal something that
you don’t know the basis for? It does not “waste their time”. Frankly, they
felt that the appeals process last year, with no information from my office,
was sort of perpetuating a sham. The fourth reason, and this is where it gets
important for me, is if the appeal directly follows the department/school and
college decisions, it allows for complex issues of appeals to be settled by the
faculty governance system before it goes to the administration. I think that
that is very important. It allows for AFEGC involvement before it goes to the
administration, if that is appropriate. It allows the candidate to add, clarify
or update material as might be required by those committees.
If there are disagreements at the department or at
the college level, I would prefer to see them settled. I would prefer to see
the faculty governance system express itself on those issues. Without going
into detail, there is an example last of year of where unethical and
unprofessional behavior was alleged. I have a week to read 50 dossiers. I can’t
possibly adjudicate a case like that nor am I empowered by anything here to
become an investigative office. That is the role of the FRC and the AFEGC in
this matter. So, I would very much prefer, with those sorts of issues, if not
settled, to hear the faculty through its elected representative bodies express
itself on these things. Then, I think I can make a much better recommendation
to the President.
Senator
Crothers: I
think that the other piece of the puzzle here is that Faculty Affairs is going
to be working on language to change our existing policies to reflect that
reality. I think that there is a desire to promulgate this to people who are going
through the process this year.
Provost
Presley:
That was what the URC suggested. What we would have to do to make this fair is
tell every applicant for promotion and tenure right now that this would be the way
it would be done and to give them one new date. Only one date really has to be
changed, in essence, for applicants who wish to appeal negative decisions of
the department, school or college. That deadline should change so that it would
be a week after they are notified by the college what that recommendation is. Everyone
who is not appealing would go through the process as currently laid out in the
calendar. People who are appealing would go directly to the appeal process.
What would happen for them would be that the May 15th deadline for
the President to communicate his decision would become the last day. There is a
date for the completion of the FRC review. That doesn’t have to change and,
therefore, the date for the President’s notification does not have to change
either.
The reason that the URC wanted this to go to the
current applicants for promotion and tenure is that, frankly, anyone who is
appealing should have that extra week to focus on the things that they can
appeal—the school/department and college decisions—rather than continue with
the sham that they are also appealing a decision that I have made.
Senator Reid: Just a clarification—under
the present system, if a case in which you rejected someone went to the FRC,
let’s say without any information on your decision, the FRC could, nonetheless,
decide that they knew better and reject your decision. Would it then just come
back to you to re-decide?
Senator
Crothers:
No, it goes to the President.
Senator Reid: Oh, so the President would
consider their opinion, your opinion and make a final determination?
Provost
Presley:
The FRC can’t do what they are charged to do. Candidates may posit any reasons
whatsoever that they believe that the Provost decided whatever he or she
decided and appeal it, but that is a rather silly state of affairs.
Senator Reid: I am not disagreeing with
any of this. A candidate could also argue, ‘I have no idea why he decided it,
but look how strong my case is.’ Then it would go to the President.
Senator
Crothers: I
think that that is an excellent point. The additional layer is that if we
accept this new calendar, what you are really saying is that, when it comes to
promotion and tenure matters, there is a faculty process and an administrative
process. Therefore, once it gets out of the faculty process and goes to the
administrative process, if it turns out that everyone said yes and the Provost
says no, you sue him.
Provost
Presley:
The obvious question in your mind is, ‘what is my protection against a
capricious Provost?’ This appeals committee was never that protection. The
actual protection is a subpoena. Anything short of that is, frankly, misleading
the candidates. Please believe me; that does not make me particularly happy. It
would be a far simpler matter for me to say that it is on the basis of this or
that and hand it to the appeals committee, but I cannot do that.
Senator Reid: Do you want to put that in
the ASPT document—what their final option is?
Provost
Presley: If
you don’t, I still can’t do it; I won’t do it. When I wind up in federal court,
I want to have followed the Board of Trustees’ lawyer’s directions.
Senator
Holland: If
I understand this correctly, under the current ASPT process, effectively every
decision at every point along the line is advisory until it reaches the
President’s office.
Provost
Presley:
Yes, that is correct.
Senator
Holland: It
sounds like what we are doing now is making all the decisions advisory until it
reaches the Provost’s office.
Provost
Presley:
No, I am still advising the President; I make a recommendation. The fact is
that no one can give you a promotion or tenure but the Board of Trustees and
they have delegated that power to the President.
Senator
Thompson: I
understand that and I guess I am confused as well. Several years back, there
was a concern that a Provost had sort of been a loose cannon and had reversed
decisions made at the department and college levels. I had thought that the FRC
was actually a check and balance against a Provost making a bad decision. Any
Provost can make a bad call, as well as any department or college committee.
So, you are saying that, in fact, the FRC wasn’t a check and balance against a
Provost’s decision?
Provost
Presley:
The people on the committee felt that it wasn’t. They felt that they were wasting their time
because the entire dossier had to be rehearsed in front of them because they
all adopted exactly the tactic that Senator Reid just suggested. In fact, I
cannot participate in the review process.
Senator
Crothers:
It may have been the case several years ago that the Provost and the FRC
actually did engage in what we are trying to respond to in a legal context now,
which says that that cannot happen.
Senator Borg: I think that Senator
Thompson is quite correct in saying that that was meant to be that very sort of
check and balance, but in light of this legal opinion, that process is rendered
moot at this point. Therefore, as a matter of practicality, you are suggesting
the changes.
Provost
Presley: I
absolutely respect that point of view and that concern, but it has been
rendered ineffective by this opinion. You might make an analogy to the fact
that before certain dates of employment are reached, department chairs/ASPT
committees are told that they cannot give reasons why a decision to
non-reappoint has been made. This is the same thing. I am not a star chamber; I
am subject to review, obviously, but not by the governance system, not by the
faculty, is the argument that is has been made.
Senator Reid: Can you give your reasons
to the President?
Provost
Presley:
Yes.
Senator Reid: There is an alternate
structure. One possibility is a two-tiered structure recommending to the
President. The CFSC decisions would go to the FRC and to you at the same time
and then both of you would make your recommendations to the President.
Senator
Crothers:
That is in the proposed recommendation—that the FRC would send its
recommendations to the President.
Senator Reid: The FRC would?
Senator
Crothers:
That is in the language.
Senator Reid: But I thought that the FRC
would also send it to the Provost.
Senator
Crothers:
Sure, and to the CFSC, DFSC and to the appellant. They send it to everybody.
Senator Reid: The difference I am suggesting
is that it would not go to the Provost at all. It would just go to the
President so that you would have two parallel recommendations—an all-faculty
decision.
Provost
Presley:
That is in effect what this does.
Senator
Crothers:
And it doesn’t solve the problem of capricious administrators, it just changes
the capricious administrator.
Provost
Presley:
Please believe me; I firmly believe that capricious administrators and people
who act in the ways that you are describing should be fired—they should be
sanctioned. This is a developmental process; it is an evaluation process. In
many ways I agree with you, but it is also important to put this in a context.
I understand why the current process was developed, but the national context was
demonstrated by a survey that ASCU did about two months ago. I don’t know that
we are the only institution that has this sort of arrangement wherein an appeal
committee deals with a group of faculty decisions and a group of administrative
decisions, but it is a very rare structure. It is much more likely that the sequence
is what is being suggested here or the sequence that Senator Reid suggested. It
is much more likely to be that way. One other way of looking at this is that
for appealed dossiers, this makes the FRC and the AFEGC, when necessary, the
all-campus committee that is, in fact, in place at most institutions. The
all-campus committee is usually either chaired by, or makes a recommendation
to, the Provost. That is the model of the majority of institutions in ASCU.
Senator
Crothers:
Can I take it from this conversation that we are comfortable acknowledging that
this is the appropriate process, even though we have some big questions about what
the Faculty Affairs Committee is going to have to do as they make the
structural changes over time?
Senator
Holland: I guess
I am comfortable with making these kinds of changes, but I am less comfortable with
making these kinds of changes this year. I wonder if we can actually do that.
Senator
Crothers:
The question is really of clarification versus change because the Provost could,
in fact, get nine other legal opinions if he wanted to. Two of them might tell
him that the current process we use is legal.
Provost
Presley:
Actually, no, since the Board gives tenure and promotion. I could get them, but
they would be quite irrelevant.
Senator
Crothers:
Then we could say that the current process exits; however, it is a meaningless
statement because the process ends because the FRC can’t do anything with the
Provost’s opinion.
Provost
Presley: I
understand your misgivings about changing horses in midstream or changing the
conditions of what might be seen as a contract, but what we are doing is that
we are not lying to them about the ability to appeal an administrative
recommendation. Currently, we are and I would argue that having had last year’s
FRC point out this logical conundrum to the URC and having the URC clarify the
language, we would be much more in danger now if we turned our back on that
finding. We would be muddling things if we did.
Senator
Crothers:
It strikes me that we have a couple of options; we can either do this formally
or informally. We can empower the Provost to send out a memo articulating this
clarification to all persons going through the promotion and tenure process
this year. We can do that either by an endorsement by acclamation or we can
make a formal proposal with a formal vote.
Senator Hammel: Might it be a good idea to
send out this communication to all faculty?
Senator
Crothers: I
am happy to send it out to all faculty.
Provost
Presley:
The URC is assuming that some changes might have been made by next year when it
would affect other people.
Senator Hammel: I understand that, but I
think the concern will be that we have made significant changes in midstream
and not informed the faculty about that.
Senator
Crothers: I
am very sensitive to that argument.
Provost
Presley:
That makes sense and I can certainly do that. If I may make a suggestion, I
would feel more comfortable if I signed and the current Chair of the URC signed
because I don’t want this to look as though I am retreating behind a rock.
Senator Wang: Just a
clarification—effective this year?
Senator
Crothers:
The argument is that we are making it effective this year because that is the
real process legally, so even if we don’t make it effective this year, it is
still what is going to happen.
Provost
Presley:
And we are misleading candidates.
Senator
Crothers:
That is the argument.
Provost
Presley:
The reality is if you want to appeal my recommendation or the President’s
decision or, conceived separately, the Board’s action, you have to get a
lawyer. We need to be honest about that.
Senator
Crothers:
Would you like this caucus, by acclamation, to empower the Provost and the URC
Chair to present such a memo to everybody, or would you want to make a formal
proposal that we vote on and ratify?
Senator Reid: Acclamation.
Senator
Crothers:
So, to clarify, we are empowering the Provost to work with the Chair of the URC
to create an appropriate memo to send to all faculty clarifying the appeals
process as it now exists in the law. We are also, as a side measure, insisting
to Faculty Affairs that they come to us, after working with the appropriate
committees, with formal changes in our ASPT process to reflect this new legal
reality. I don’t know if that needs to be said in that memo or not.
Senator Hammel: Would it be a preference
that we not talk about this until you have a chance to send that memo out?
Provost
Presley: It
might be better than people getting upset before they see it in writing.
Senator Wylie: Will we make a special
effort for the people who are going up for promotion that they get this and
understand it?
Provost
Presley: I
probably am going to send them a registered letter and an e-mail to everybody
else.
The Faculty Caucus unanimously agreed to Senator
Crothers’ summation of the URC recommendations for faculty appeals of tenure
and promotions decisions.
Adjournment