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2150 DOCUMENTS OF THE GENERAL FACULTY PRESIDENT'S RESPONSE OF SEPTEMBER 17, 2002, TO REPORT AND RECOMMENDATIONS FROM THE FACULTY GRIEVANCE COMMITTEE, 1999-2000 (D 582-585)     September 17, 2002 Dr. John Durbin, Secretary The General Faculty The University of Texas at Austin FAC 22 (F9500) Dear John: I write a second time in response to the "Report and Recommendations from the Faculty Grievance Committee," Documents of the General Faculty, 582-585 (enclosed). In the wake of my previous letter, dated May 28, I received comments in a letter dated July 30, 2002, from several members of the faculty, including present and former chairs of the Faculty Grievance Committee. That letter also contained a request that I review my response of May 28. I have now done so in consultation with the Executive Vice President and Provost, the Vice President for Institutional Relations and Legal Affairs, and the Deputy to the President, and I conclude that changes in my response are in order. The following is a substitute in toto for the response of May 28: A. Role of the President in the Grievance Process This section contains two recommendations. 1. "The Grievance Committee will work with the president through the provost." I approve this recommendation with the understanding that it does not apply to grievances of tenure-track faculty over nonrenewal decisions, or termination of tenured faculty, which are conducted pursuant to Part I, Chapter III, Section 6.3 of the Regents' Rules. It is my intent that the Executive Vice President and Provost be the President's delegate with respect to (a) consulting with the Grievance Committee on any aspect of its work, (b) assisting in convening a hearing panel and facilitating its work as needed, (c) receiving the report of a hearing panel, and (d) forwarding it to the President for final action with the right of comment and recommendation. 2. The second item concerns authorizing a hearing panel when a grievance is brought by a tenure-track faculty member over a nonrenewal decision. (Part I, Chapter III, Section 6.35 of the Regents’ Rules). I cannot approve this recommendation. According to the Regents’ Rules, the President is responsible for deciding whether to provide a hearing when a grievance is brought by a tenure-track faculty member over a nonrenewal decision. This decision must be made within the parameters established by the Regents’ Rules. I am unable to give this responsibility to the Grievance Committee.   2151 B. Hearing Panels I cannot approve this recommendation to the extent that the Grievance Committee proposes its application to grievances of tenure-track faculty over nonrenewal decisions, or termination of tenured faculty, which are conducted pursuant to Part I, Chapter III, Section 6.3 of the Regents' Rules. Of course, the panels for other types of grievances will continue to be drawn at random, as provided in the Faculty Grievance Policy. I hope that, in those instances where the Provost advises that a certain expertise on the panel would be beneficial, the draw will be done so as to secure such expertise. C.. Legal Counsel I agree with this procedure and approve it. I add that if a case arises during which a faculty member of the School of Law is not available to provide legal counsel to the panel, the Vice President for Institutional Relations and Legal Affairs is agreeable to arranging legal counsel by a member of our campus legal staff or the UT System Office of General Counsel who has not been involved previously in the particular case. D. Increased Legalization The Committee will want to continue its work with the Executive Vice President and Provost as indicated in the report. E. Due Process 1. The first recommends the implementation of mid-probationary reviews. I approve this recommendation with the understanding that (a) its implementation is within the sole discretion of the Office of the Executive Vice President and Provost, and (b) its implementation does not create a contractual right to such a review or to a particular review process. 2. The second recommendation is that "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." I cannot approve this recommendation. The proposal, if implemented, would allow an untenured, tenure-track faculty member who is not renewed to grieve that decision by alleging denial of due process. Due process is a constitutionally defined right that is present only if the University, as a governmental entity, takes action to remove a benefit or property interest that it has already bestowed. The Rules and Regulations of the Board of Regents are clear that untenured faculty are not entitled to the expectation of tenure and consequently, have no right to due process in the tenure process. Approval of this proposal would result in an unauthorized expansion of the Regents' Rules, particularly Part I, Chapter III, Section 6.3, which limits the grounds for reviewing a decision not to renew a nontenured faculty member to those situations where it is credibly alleged that such decision was made for reasons that are unlawful under the laws and Constitution of this state or the United States. F.  Faculty Ombudsperson The original "Proposal from the Faculty Grievance Committee to Create an Office of the Faculty Ombudsman" appeared in the Documents and Proceedings of the Faculty Council, 17040-17043. I 2152   disapproved that proposal in my letter of November 30, 2000, to Professor Patrick Davis, who was Chair of the Faculty Council at that time. In 2001-2002, a revised "Proposal from the Faculty Grievance Committee to Create an Office of the Faculty Ombudsman" (Documents of the General Faculty, 1652-1655) was considered and approved by the Faculty Council. If the Executive Vice President and Provost will confirm that he can find sufficient funding to support this new office adequately, I will approve this revised proposal. G. Past Chair I approve the recommendation as given in the report. I appreciate your time and that of the other faculty with whom we met on September 7 to discuss issues regarding the grievance process. I understand that the primary remaining concern of that group relates to the ability of a tenure-track faculty member subject to a possible nonrenewal decision to have the opportunity to raise his or her relevant issues of concern before a final decision is made on the nonrenewal decision. As discussed, we will continue working with you and other faculty on a way to address this concern. If you have any questions, please do not hesitate to contact me. Sincerely, <signed> Larry R. Faulkner President Enclosure cc: Executive Vice President and Provost Sheldon Ekland-Olson   Vice President Patricia C. Ohlendorf   Professor Michael Granof   Professor Neal Armstrong   Professor Alan Friedman   Professor Jack Getman   Professor Martha Hilley   Professor Alba Ortiz   Professor Janet Staiger Distributed through the Faculty Council web site on September 19, 2002. Copies are available on request from the Office of the General Faculty, FAC 22, F9500.