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April 1, 1998 Minutes


Present: Anderson, Bible, Conroy, Deduck-Evans, Gillis, Hays, Hunter,
Irvin, McGee, Oliver, Pascoe, Sawey, Simpson, Stimmel, and Winek.

Absent: None

Guests: VPAA Gratz, Dylan Sides (STAR) and Mike Moore.

CONTENTS:
TEMPORARY AND PART TIME FACULTY COMMIITTEE REPORT
REGENT'S RULE REVISIONS (CHAP V, SECT 4)
SENATE GROUP PICTURE
NEW BUSINESS
MINUTES OF 3-25-98

The meeting was called to order by Chair Bible at 4:00.

TEMPORARY AND PART-TIME FACULTY COMMITTEE REPORT

Sen. Hays presented a report from this Committee. Its recommendations will be
considered next week.

REGENTS RULES

A committee of system VPAAs and the system legal counsel has reviewed and made
recommendations concerning chapter V of the Regents Rules, which deals with the
rights of faculty. VPAA Gratz visited with the Senate to discuss these
proposed changes, which will be forwarded immediately to the system presidents;
afterward the Senate decided to forward to VPAA Gratz, the President's Cabinet,
and the Deans Council a statement of its position on the proposals and to
include that statement as an attachment to these minutes.

Denial of Promotion
Chapter V provides that faculty who are denied a promotion are not entitled to
a statement of the reasons or to grieve the matter, unless they allege a denial
of a constitutional or statutory right. The Senate strongly opposes this
approach, believing that it detrimentally affects both the institution and the
faculty member. A statement of our reasons is included in the attachment.

The review committee did recommend adding language to chapter V to formalize
the current practice of allowing administrators to give faculty "suggestions"
for a course of action which would enhance their chances of a promotion in the
future. The Senate's response was that although an explicit statement of the
reasons for a promotion is preferable to such "suggestions," the latter
approach would be workable if such a statement were mandatory. As it is, some
administrators are apparently relying on the discretionary nature of the
"suggestions" policy to justify refusing to tell faculty members anything about
their promotion denial. VPAA Gratz seemed receptive to this suggestion. It
should be noted that he and Dr. Supple have often said that sound policy
dictates some form of feedback in cases of promotion denial.

Faculty Drug Use

The review committee also proposes changing the faculty druguse policy by
substituting the civil law "preponderance of evidence" standard for the
criminal law "beyond a reasonable doubt" standard in administrative proceedings
in which a faculty member is charged with drug use. The Senate focused its
objections not on this issue but rather on the notion of even allowing an
administrative proceeding if the district attorney has decided not to prosecute
the faculty member or, worse, there has been a trial and the faculty member has
been found "Not Guilty." Last year the Senate forwarded to the Regents a
statement of its objection to this approach but no action was taken. The
Senate now reiterates its opposition to this policy, and a statement of its
reasons is included in the attachment. In short, the Senate believes that if
the criminal justice system decides not to proceed against a faculty member
accused of drug use, or the individual is exonerated in a trial, that should be
the end of the matter and should preclude any administrative proceeding.

The Minutes of the 3/25 Meeting were approved.


Addenum to the Minutes:

To: President's Cabinet
Council of Deans

From: Jon Bible


Yesterday Bob Gratz visited with the Faculty Senate to discuss the revisions to
chapter V, section 4 (Faculty) of the Regents Rules which were proposed by the
review committee on which Bob sat. Afterward the Senate met to consider
whether to make any recommendations on these proposals. These recommendations
follow. Because time is of the essence -- these changes will be included in the
packet to be distributed by the System office to the Regents on April 3 -- and
because each of you was asked to review these proposals, I am forwarding our
comments directly to you so that you will have the benefit of our judgment on
the issues.

I. PROMOTIONS

The Regents Rules now provide that faculty denied a promotion are not entitled
to receive a statement of the reasons. The Senate strongly disagrees with this
approach, which it believes works to the detriment of both the institution and
the affected faculty member.

Promotion and tenure decisions are qualitatively different: typically, in the
former instance, the university has already made a commitment to the faculty
member, a vital aspect of which is to do what reasonably can be done to assist
in his or her professional development. Faculty denied tenure are, under the
rules, not entitled to a statement of the reasons, and given the difference in
the level of institutional commitment involved the Senate does not challenge
that approach. We do, however, submit that providing faculty denied a
promotion with an explicit statement of the reasons not only is fundamentally
fair, but also is an essential part of the institution's duty to assist in that
person's development. Simply stated, (1) why should tenure and promotion
denials be treated the same when the nature of the institutional-faculty
relationship involved is vastly different, and (2) how is one supposed to
become a viable promotion candidate in the future if one is not told precisely
what perceived deficiencies need to be corrected?

It has been argued that promotion decisions involve an element of "professional
judgment" which cannot be neatly capsulized and reduced to writing. The
Senate, however, submits that any ostensible "reason" for denying a promotion
should not play any role in the ultimate decision if it cannot be articulated.
Inarticul- able subjective judgments can reasonably be expected in tenure
decisions, as they inherently involve, at least in part, the notion of whether
the faculty member will "fit," but the Senate submits that they ought not to be
a part of the promotion decisionmaking machinery. Given the importance of the
promotion decision, it should be incumbent on one who feels strongly enough
about the issue to recommend or decide not to promote to be able to state the
reasons.

It has also been suggested that if supervisors must attempt to list the reasons
for a promotion denial, there is the risk that they will omit some reason, and
the faculty member may use that as the basis for litigation. The Senate, how-
ever, submits that our approach to promotions and to professional development
ought not to be governed by concerns about litigation; rather, the overriding
issue should be, "What policy will produce the most productive faculty member?"

We also note that there is less risk under the approach we urge than under the
current approach. When disgruntled faculty denied a promotion are given no
reasons at all, they are effectively given a license to conjure up all manner
of ostensible reasons; if, in contrast, they are given reasons, the opportunity
for guesswork is vastly diminished. One can quarrel with the reasons given,
but at least one knows what they are.

An analogy can be drawn: a faculty member fails a student but refuses to tell
him exactly why; in essence, the faculty member simply says, "Do better." The
institution would not tolerate this approach to faculty-student relations, and
the Senate submits that this approach ought not to be tolerated, much less
prescribed, in the administrator-faculty context.

The Senate has many other reasons for opposing the nondisclosure approach; the
foregoing, however, are sufficient to make the point: giving faculty denied a
promotion an explicit statement of the reasons creates no greater risk of liti-
gation than the current system, is sound from a managerial standpoint, is fair,
and would create a win-win situation in which both the institution and the
faculty member would benefit. The task of compiling and stating reasons may be
onerous, but in view of the importance of the matter that is hardly a
legitimate reason not to undertake it.

As a compromise between the ends of the "disclosure" spectrum, the rules review
committee has proposed the inclusion of this statement in the relevant section
of the rules:

"However, nothing herein shall prohibit a supervisor from offering suggestions
for a program of professional development in teaching, scholarly or creative
work, and leadership or service that may enhance the likelihood of promotion in
the future."

At the outset the Senate notes an underlying oddity in this approach: if the
"suggestions" stem from the reasons for the denial, then the rules might as
well require those reasons to be given explicitly, without providing for this
end-run compromise; if, on the other hand, the suggestions do not relate to the
reasons for the denial, then what use are they? This aside, however, the
Senate submits that although this compromise is not satisfactory as worded, it
could, with modification, be workable.

The problem is that this language is discretionary, and we understand that some
administrators are using it to support the claim that "I don't have to tell you
anything about why you were denied a promotion, so I won't." The result is a
wholly untenable system in which some chairs and deans counsel faculty denied a
promotion and others do not. Accordingly, the Senate proposes that section
4.31 of the rules be reworded as follows:

"Faculty members who are not recommended for promotion shall not be entitled to
a statement of reasons for the decision against the recommendation. Such
faculty members, however, are entitled to receive from their supervisor
suggestions for a program of professional development in teaching, scholarly,
or creative work, and leadership or service that may enhance the likelihood of
promotion in the future."

This approach is not ideal, but it would be a vast improvement over the discre-
tionary system now contemplated. "Suggestions for improvement" are not as good
as explicit statements of the reasons for a promotion denial, but at least all
faculty who are similarly situated would have the same expectation if the
provision were made mandatory.

II. DRUG USE

Section 4.41(6) of the rules provide that an administrative proceeding on a
charge of illegal drug use may be initiated even if the faculty member has been
"charged in a criminal case, or is found 'not guilty' therein." Last year the
Senate went on record opposing this approach, and we take this occasion to
reiterate that opposition.

We do not quarrel with the administration's right to address the issue of
illegal drugs. We also recognize that to initiate an administrative proceeding
against someone found "not guilty" of drug use in a criminal case raises no
constitutional issue of double jeopardy. At the same time, we submit that
fundamental fairness dictates that if a district attorney decides not to pro-
secute a criminal case, or a faculty member is found "not guilty" in a criminal
trial, the university as a matter of sound policy should regard the matter as
closed. That the person has been vindicated in the criminal justice system, in
other words, should be enough for that person to be deemed vindicated in the
eyes of the institution as well.

Accordingly, the Senate proposes that section 4.41(6) be rewritten to preclude
an administrative proceeding in instances in which (1) a decision has been made
not to prosecute the faculty member for a criminal offense, or (2) the faculty
member has been found "not guilty" in a criminal trial.

Thank you in advance for your consideration of these recommendations, and we
ask that they be forwarded through appropriate channels for further
consideration as well.