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DOCUMENTS OF THE GENERAL FACULTY

REPORT AND RECOMMENDATIONS FROM
THE FACULTY GRIEVANCE COMMITTEE, 1999-2000


Alba A. Ortiz (special education), on behalf of the Faculty Grievance Committee, has filed the report and recommendations set forth below.

The secretary has classified these recommendations as general legislation. Notice is hereby given that these recommendations will be presented to the Faculty Council for action at its meeting on May 8, 2000.


<signed>

John R. Durbin, Secretary
The Faculty Council


Posted on the Faculty Council Web site on May 4, 2000. Paper copies are available on request from the Office of the General Faculty, FAC 22, F9500. This document was revised after the date of circulation as indicated in the footnotes.

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REPORT AND RECOMMENDATIONS FROM
THE FACULTY GRIEVANCE COMMITTEE, 1999-2000


Function

The Faculty Grievance Committee is authorized to hear, or otherwise dispose of, individual faculty grievances. Faculty grievance procedures are set forth in Section 3.18 of the UT Austin Handbook of Operating Procedures.

Composition

The committee consists of sixteen full-time voting members of the general faculty, serving overlapping terms. Ten members are elected at-large by the general faculty, and six members are appointed by the president through the regular procedures of the Committee on Committees. In addition, the chair of the Faculty Council shall appoint two general faculty members of the Faculty Council for one year terms as members of the committee. The total membership shall not include more than four faculty members from any college or school. The committee shall elect its own chair and vice chair, both of whom shall be members of the general faculty.

Cases Handled/Ongoing

To date, the Faculty Grievance Committee has dealt with eleven cases, in five colleges, at either the informal or formal stages of the grievance process. These cases involved the following issues:
Termination of a tenured faculty member
Denial of promotion and tenure
Denial of promotion to full professor
Termination of appointment (lecturers)
Salary
Vindictiveness/Retaliation/Discrimination

Subcommittee on Grievance Policies and Procedures

The chair, Alba Ortiz (special education), named a subcommittee on grievance policies and procedures to work with President Larry Faulkner and Provost Sheldon Ekland-Olson to ensure that the grievance process is one in which both the faculty and the administration have full confidence. The subcommittee is chaired by Julius (Jack) Getman (law), with Alba Ortiz, Alan Cline (computer sciences), Gretchen Ritter (government), and Janet Staiger (RTF; immediate past chair of the Grievance Committee) serving as members. Among the issues the committee is addressing with the administration are the following:
1.
The role of the president in the grievance process (please note that references to "the president" are to the position, not to President Larry Faulkner).
2.
Selection of hearing panel members.
3.
Legal counsel for the committee and for hearing panels.
4.
Increased legalization of the grievance process.
5.
Due process.
6.
Faculty ombudsperson.

Role of the President
. The president has determinative authority over the convening of hearings in cases involving promotion, tenure, and dismissal of tenure/tenure-track faculty, and also represents the last appeal in such cases. For example, if a subcommittee of the Grievance Committee determines that a faculty member has stated a complaint upon which relief can be granted and approves the faculty member’s request for a hearing, the president must approve the hearing. If a hearing is held, the hearing panel reports its findings and recommendations to the president, who then approves, rejects, or amends the recommendations, or reaches different conclusions based upon the record of the hearing. The president’s decision is final. The effect of this policy is that the president controls the grievance process at the initial and final stages. Faculty, then, have reason to question the impartiality of the process. The grievance subcommittee has asked President Faulkner to approve the following operating procedures:


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1.
The Grievance Committee will work with the president through the provost.
2.
Consistent with the Regents Rules (Chapter III, Section 6.35), the provost will approve the Grievance Committee's recommendation that a hearing be conducted when the committee believes the faculty member has stated a claim upon which relief may be granted. This tacit approval is not to be construed to mean that the provost agrees with the committee's recommendation, but simply that the provost is honoring the request that a hearing panel be convened to hear the case.

Hearing Panels. The Handbook of Operating Procedures requires that hearing panel members be randomly drawn from the pool of hearing officers, but it also requires that the president approve the panel membership. The president can ask that representatives be removed or can require that certain expertise be represented on the panel (e.g., by not approving the panel until it includes the membership he or she wishes to have). The grievance subcommittee has asked President Faulkner to approve the following recommendation:

Hearing panels will be constituted according to the procedures described in the Handbook of Operating Procedures. Panels will be drawn at random from the pool of hearing officers and the panel will routinely be approved by the provost as drawn. In rare cases, if the provost and the chair of the Grievance Committee mutually agree that specific expertise must be represented on the panel, the panel will be drawn to ensure such representation. Alternates will also be drawn at random in instances when a panel member is challenged and voluntarily disqualifies himself or herself, or when, after consultation with the Grievance Committee chair, the panel member decides that he or she cannot serve with fairness or objectivity.

Legal Counsel. Current policies allow the hearing panel to ask the dean of the Law School or the president to provide legal counsel to the hearing panel. Having the administration’s legal counsel also act as counsel to the panel represents a potential conflict or an appearance of conflict of interest. We have thus asked the president to approve the following recommendation:

If legal counsel is needed by the Grievance Committee during the informal phase of the grievance process or is requested by a hearing panel, the chair of the Faculty Grievance Committee, working with the dean of the Law School or the dean's designee, will request such counsel directly from the Law School.

Increased Legalization. We are concerned that legal tactics can be used to interfere with, or slow down, the efficient conduct of hearings and to create unreasonable burdens for the grievant. Such tactics reinforce perceptions that the grievance process does not serve the faculty well and raise questions of conflict of interest. Examples of such legal tactics include charging for discovery, claiming that documents are privileged and thus cannot be shared with the grievant, or denying the grievant access to tapes of hearings. The subcommittee on policies and procedures is discussing these issues with Provost Ekland-Olson. In addition, the chair has named a subcommittee on the role of general counsel chaired by Jack Getman, with Alan Cline and David Rabban (Law) serving as members.

Due Process. The Grievance Committee strongly supports the recommendation approved by the Faculty Council calling for mid-probationary period reviews of tenure-track faculty and urges the administration to implement this recommendation as quickly as possible. Frequently, promotion and tenure grievances arise because faculty (a) do not receive systematic feedback about their progress toward promotion during their probationary period, or (b) receive positive annual reviews, but then are denied promotion. Formal mid-probationary period reviews can help alleviate these issues.

The Handbook of Operating Procedures makes clear that faculty members cannot grieve because of a "good faith" dispute over the outcomes of the promotion and tenure process. They can grieve serious violations of the procedures that result in a denial of due process. Consequently, faculty are increasingly grieving promotion and tenure decisions on procedural grounds. They grieve because they do not believe they received a fair, customary review by their department or college, and that violations of procedures were intended to "stack the deck" against them. To provide better guidance to faculty and to avoid frivolous complaints, the Grievance Committee will work with the administration to develop operating guidelines as to what constitutes "substantive" or "egregious" violations of the promotion and tenure guidelines, and procedures that would allow faculty members to grieve on procedural grounds.

Faculty Ombudsperson. We are also concerned about the increasing number of faculty grievances that allege vindictiveness/retaliation/discrimination on the part of administrators. Such complaints reinforce the need for a faculty ombudsperson. The Grievance Committee supports the Faculty Council’s recommendation that the

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administration appoint a faculty ombudsperson. The committee recommends that the ombudsperson be a former Grievance Committee chair given these individuals' familiarity with the University’s policies and procedures and experience in handling faculty complaints.

In the absence of a faculty ombudsperson, the Grievance Committee chair, by default, serves in this role. In addition to handling active cases, the chair is the point of contact for faculty who simply seek advice on how to handle problems they are experiencing in their department or college, for those who want to explore informally whether their problems are covered by the grievance process, and for those who want to understand how the process works in order to decide whether to file a grievance. Because of the excessive time commitments, it is increasingly difficult to find faculty willing to serve as vice chair of the Committee; the vice chair becomes the chair the following year. The vice chair position is vacant at this time. Until the position of ombudsperson is created, the Grievance Committee recommends that the chair of the Grievance Committee be given release time (one-course during the academic year).

Past Chair

The past chair of the Grievance Committee serves in an important advisory capacity to the current chair and to the committee. Moreover, the past chair typically continues to handle cases that were initiated, but not resolved, during his or her term of office. The Grievance Committee therefore recommends that the past chair of the Grievance Committee serve as an ex-officio, voting member of the committee.

Respectfully submitted,


Alba A. Ortiz, Chair


On behalf of the Grievance Committee members who have so ably served the University community:

Mark Alpert (marketing administration)
Phillip Barrish (English)
Gerard Behague (music)
Alan Cline (computer sciences)
Robert Duke (music)
Alan Friedman (English)
Julius Getman (law)
John Ivy (kinesiology and health education)
Robert Koons (philosophy)

Parker Lamb (mechanical engineering)
Joseph Malina (civil engineering)
Madeline Maxwell (speech communication)
David Nancarrow (theater and dance)
David Rabban (law)
Gretchen Ritter (government)
Stanley Roux (botany)
Dorothy van Soest (social work)
Kamala Visweswaran (anthropology)


Motions for Action by the Faculty Council

1.

Move that membership on the Grievance Committee be expanded to include the immediate past chair as an ex-officio, voting member of the committee.
2.
Move that the chair of the Grievance Committee be given release time, equivalent to four and one-half teaching credits, until the position of ombudsperson is created and filled.*


* Motion 2 was amended by the Faculty Council on May 8, 2000, to read "equivalent to four and one-half teaching credits," instead of "one course during the academic year."