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3222 DOCUMENTS OF THE GENERAL FACULTY Following are the minutes of the regular Faculty Council meeting of March 22, 2004. <signed> Sue A. Greninger, Secretary The General Faculty MINUTES OF THE REGULAR FACULTY COUNCIL MEETING OF MARCH 22, 2004 The seventh regular meeting of the Faculty Council for the academic year 2003-2004 was held in the Main Building, Room 212, Monday, March 22, 2004, at 2:15 P.M. ATTENDANCE. Present: Lawrence D. Abraham, Urton L. Anderson, Jacqueline L. Angel, Marian J. Barber, Daniela Bini, David G. Bogard, Jennifer S. Brodbelt, Neal M. Burns, Maggie Chiang, Michael J. Churgin, Alan K. Cline, Donald William Drumtra, Sheldon Ekland-Olson, Larry R. Faulkner, Kenneth Flamm, Wolfgang Frey, Alan W. Friedman, Sue A. Greninger, Lita A. Guerra, Marvin L. Hackert, Susanne Hafner, Brian J. Haley, Julie Hallmark, Michael P. Harney, John J. Hasenbein, Susan S. Heinzelman, James L. Hill, Archie L. Holmes, Sharon D. Horner, Raymond Bert "Rusty" Ince III, Slyman M. Majid, Dean P. Neikirk, Melvin E. L. Oakes, Edward W. (Ted) Odell, Patricia C. Ohlendorf, Anthony J. Petrosino, Theodore E. Pfeifer, Linda E. Reichl, David J. Saltman, David B. Spence, David W. Springer, Janet Staiger, Sharon L. Strover, James W. Vick, N. Bruce Walker, Darlene C. Wiley, Lynn R. Wilkinson, Paul B. Woodruff, James R. Yates. Absent: Kamran S. Aghaie, Ricardo C. Ainslie, Dean J. Almy, Hans C. Boas, Daniel A. Bonevac, Teresa Graham Brett (excused), Johnny S. Butler, Joshua S. Campbell, Patricia L. Clubb (excused), Melba M. Crawford (excused), Janet M. Davis (excused), Andrew P. Dillon, Edwin Dorn, Phillip L. Dubov, Robert Freeman, Charles N. Friedman (excused), James D. Garrison, George W. Gau, Michael H. Granof, Peter F. Green, Carl T. Haas, Donald A. Hale, Thomas M. Hatfield, Fred M. Heath, Kevin P. Hegarty, Kurt O. Heinzelman, Neville Hoad, Judith A. Jellison (excused), Manuel J. Justiz (excused), Martin W. Kevorkian, Robert D. King (excused), Richard W. Lariviere, Steven W. Leslie, William S. Livingston, Amarante L. Lucero, Arthur B. Markman, Thomas G. Palaima (excused), Marcus G. Pandy, William C. Powers, Mary Ann R. Rankin, Johnnie D. Ray, Eric A. Renner, Victoria Rodriguez, Charles R. Rossman, Juan M. Sanchez, Dolores Sands, Diane L. Schallert (excused), M. Michael Sharlot, Mark C. Smith, Salomon A. Stavchansky (excused), Frederick R. Steiner (excused), Ben G. Streetman, Daniel A. Updegrove, Ellen A. Wartella, Gwendolyn Webb-Johnson, John M. Weinstock, Barbara W. White, Glen M. Worley. Voting Members: 42 present 31 absent 73 total Non-Voting Members: 7 present 27 absent 34 total Total Members: 49 present 65 absent 107 total 3223 I. REPORT OF THE SECRETARY. The written report appears in D 3118-3123. There were no questions or comments. II. APPROVAL OF MINUTES. The minutes of the Faculty Council meeting of February 16, 2004 (D 3128-3134) were approved by voice vote. III. COMMUNICATION WITH THE PRESIDENT. A. Comments by the President. President Faulkner welcomed everyone back from Spring Break. He said that he was working on his responses to the reports of the Jackson School Vision Committee, the Task Force on Racial Respect and Fairness, and the Task Force on Enrollment Strategy. He said he hopes to have responses out to the campus in early April. B. Questions by the President. President Faulkner addressed the following question that had been asked by Professor Janet Staiger (radio-television-film), chair, Faculty Grievance Committee, 2003-04: At a recent college Chairs and Directors meeting, a Dean of a college stated that the Handbook of Operating Procedures (HOP) is "only guidelines." I know that the University lawyers and you maintain that faculty have no property rights in the HOP; however, is the HOP "only guidelines?" Janet Staiger, chair, Faculty Grievance Committee, 2003-04. After saying that it would be helpful to know the context of the question, President Faulkner stated the following: There’s no question that in the HOP there’s room for interpretation. In many aspects of the University’s life, there are variations and practices from unit to unit and a lot of the University’s guidelines are meant to accommodate that. A perfectly good example would be the promotion and tenure guidelines that we use to, overall, manage the process, but the precise procedures that are used and given in Department “A” probably differ from exactly what’s done in Department “B,” and they can still be reasonably concordant with the guidelines. So much having to do with faculty process is in the realm of guidelines, and there is room for interpretation. Other aspects maybe more or less well defined. But I think that our goal in an institution like this is not to necessarily to try to write down precisely how every piece of business that would come before the University should be handled but to express the spirit and range of considerations that ought to guide the resolution of the issue. And that’s mostly what you see in the Handbook of Operating Procedures as it relates to, specifically, faculty issues. In other aspects of the Handbook of Operating Procedures, which may address things that are, for example, defined in state law, like the handling of travel vouchers, then we may have to be somewhat more specific. President Faulkner again said the context of the specific issue was important and concluded his comments by saying, “It’s not our goal to have adopted policies that leave an infinite range of interpretive power, but it’s also not our goal to have adopted policies that leave no range for interpretive activity.” 3224     Patricia Ohlendorf, Vice President for Institutional Relations and Legal Affairs, agreed with President Faulkner regarding the importance of the context and said she would be “happy to answer a specific question.”Patricia Ohlendorf, Vice President for Institutional Relations and Legal Affairs, agreed with President Faulkner regarding the importance of the context and said she would be “happy to answer a specific question.” Janet Staiger (radio-television-film) said the specific incident that caused her to ask the question dealt with who could vote on salary raises. She said she thought the HOP clearly stated the policy on this matter and did not just provide guidelines. She commented that the President was confirming her general thinking on the issue. Kenneth Flamm (LBJ school) said he was somewhat confused because he thought the HOP laid out the “rules.” He asked if the portion of the HOP that was photocopied and attached to his hiring letter were rules that had any “legal force.” President Faulkner responded that if statements in the HOP were “highly directive then it should be interpreted literally, and that if there were operational latitude, then the latitude maybe should be indicated.” He said that he thought that the promotion and tenure guidelines gave latitude to departments to establish procedures that were suited to their individual units within certain parameters. He also said that he thought administrative officers could make exceptions to the HOP under certain circumstances and for good reasons unless state law specifically prohibited actions. Vice President Ohlendorf said there was a 1940s case that said that if there wasn’t a state law on an issue that the Regents' Rules were “controlling as it if were state law.” The Regents' Rules give institutions the ability to develop HOPs that address their respective policies. She said there was nothing in the HOP forbidding exceptions or waivers unless it duplicated information in the Regents' Rules, giving as an example faculty leave where a second year of leave had been allowed for high government service. She said the HOP did not have the “force of law,” but compliance with the HOP was expected, concluding that the rules in the HOP were not as bad as those of the NCAA. Chairman Marvin Hackert (chemistry and biochemistry) commented that he thought the HOP spelled out operational rules instead of legal rules. IV. REPORT OF THE CHAIR. Chairman Hackert reported on the February meeting of the Texas Council of Faculty Senates (TCFS), an organization of roughly thirty-six state supported academic institutions in Texas. He said that Dr. Bruce Walker, UT Austin director of Admissions, had given a good presentation at the meeting on issues relating tuition to admissions. Chairman Hackert said there were reports at the meeting on a planned governance survey, computer usage, and Web-based course caps. A resolution was passed by the TCFS to allow faculty members involved in Web-based courses to control enrollment in their courses since this was not being done at some institutions, and enrollment had been allowed to grow exponentially. Chairman Hackert also reported on the recent UT System Faculty Advisory Committee (SYSFAC) meeting that was held March 4-5 here in Austin. He said the primary issue discussed was the development of accountability and performance measures now required by Governor Perry. A 360 page preliminary report on this was prepared UT System and presented to the Board of Regents on March 11. Areas addressed in the report included student access, teaching, research, service to the community, organizational efficiency, and institutional profiles; accountability measures for each of these areas have also been developed. A PowerPoint presentation by Dr. Geri Melandra and a short version of the report are available on the UT System’s Web site and provide interesting information that faculty might want to review. A second item of discussion at the SYSFAC meeting was the faculty satisfaction survey conducted at all UT System institutions. The report done by an outside consultant group was determined to be statistically unsupported at the fall SYSFAC meeting. Dr. Jack Lee from MD Anderson has put together plots of the data to indicate general trends, and Chairman Hackert has asked for a copy of Dr. Lee’s slides to be made available to our UT Austin faculty. Unidentifiable comments from survey participants have been turned over to Professor Sue Greninger, secretary of the Faculty Council. Chairman Hackert said the concept of the compacts that Chancellor Mark Yudolf has requested 3225   from each System component was also discussed at the SYSFAC meeting. The UT Austin compact is being worked on and more information should be available concerning this in the future. Chairman Hackert reported that the Faculty Council Executive Committee (FCEC) has initiated a review and clarification of policies regarding course instructor evaluations done by students and computer privacy issues pertaining to faculty and staff. Provost Sheldon Ekland-Olson has reactivated the search committee for the ombudsperson and approved the honors criteria that the Faculty Council passed at the February meeting. V. REPORT OF THE CHAIR ELECT. Chair elect Linda Reichl thanked members who traveled to the joint meeting of the Texas A&M Faculty Senate and the UT Austin Faculty Council held in College Station in February. She said UT Austin had a great turn out and that she had received a letter from Professor Martha Lodden, speaker of the Texas A&M Senate, who thanked everyone for attending and said she felt the meeting had been successful. Professor Reichl said it was important to have legislators, such as Representative Fred Brown who attended the College Station meeting, at these joint meetings and that she would invite other representatives for the meeting next year here at UT Austin. VI. UNFINISHED BUSINESS — None. VII. REPORTS OF THE GENERAL FACULTY, COLLEGES AND SCHOOLS, AND COMMITTEES. A. Interim report from the Educational Policy Committee — Paul Woodruff, co-chair (professor, philosophy). Professor Woodruff reported that the Educational Policy Committee had discussed the report of the Task Force on Enrollment Strategy and that most committee members support the recommendations but want to review the details more closely. The committee is recommending that the undergraduate educational system here at UT Austin be made more flexible than it currently is in order to allow students opportunities to do educational exploration while they are moving expeditiously through their programs of study. In addition, the committee recommends that student advising about majors be improved in order to help students make information based decisions move more quickly through their undergraduate programs. General recommendations from the committee have been relayed through official channels here at UT Austin. Professor Woodruff said the committee believes the twelve-hour requirement in history and government is “good in spirit, but it is rather constricting in a number of ways.” A proposal should be forthcoming in April regarding this issue. Another issue of concern to the committee involves the approval process for study abroad affiliated programs, such as those offered by Syracuse University. Although aprocess exists here at UT Austin, but it has not been formally approved by the Faculty Council. B. Interim report from the Committee of Counsel on Academic Freedom and Responsibility — Alba Ortiz, chair (professor, special education). Professor Alba Ortiz read an interim report from the Committee of Counsel on Academic Freedom and Responsibility detailing the great disappointment of committee members with the process and the lack of success in gaining approval by President Faulkner on the legislation recommending procedures for administrative investigation on policy violations alleged against faculty that was unanimously passed by the Faculty Council in November, 2002. One of the key concerns raised in the report was whether or not faculty members were receiving annual written evaluations from departmental chairs as required in the HOP. For the complete interim report, please see Appendix A. (Also see D 2360-2362 and D 2539-2541.) Chairman Hackert asked Professor Ortiz to provide a written statement of any future proposals that would be forthcoming from the committee in a timely manner so members would be able to 3226     carefully review the language of the recommendations. He then asked for a show of hands of the Faculty Council members who believed their departments provided written third year reviews for junior faculty, and then he said he thought this practice might be more likely than written annual reviews for all faculty members. C. Interim report from the Faculty Grievance Committee — Janet Staiger, chair (professor, radio-television-film). Professor Janet Staiger read an interim report detailing the activities and concerns of the Faculty Grievance Committee. The primary concern of committee members was the increased legalization of the process and the lack of equity in terms of legal representation for the involved parties. For the complete interim report, please see Appendix B. Professor Sharon Strover (chair, radio-television-film) read a report she had prepared that detailed problems she had encountered with the grievance process and committee. She expressed serious concerns regarding the faculty’s role in administrating the grievance procedures and said the process was “bankrupt” in her opinion. For the complete report of Professor Strover’s comments, please see Appendix C. VIII. NEW BUSINESS. A. Report and Recommendations of the Admissions and Registration Committee Concerning the Coordinated Admissions Program (D 2821-2823) — Larry Carver, chair (professor, English). Professor Larry Carver reported that the Admissions and Registration Committee approved the amendment made in the January Faculty Council meeting to change the wording of the proposed recommendation pertaining to students taking short courses. Committee members did not intend to restrict students from taking the courses; they just did not want these short courses to count toward the required thirty hours. He said the committee also understood that the proposed changes could not be implemented by April 1 of this year and would not apply, if approved by the administration, until the 2005 CAP admissions process. Professor Jim Yates (educational administration) asked if data were available about the ethnic composition of CAP enrollees and whether these enrollees helped the diversity of the UT student body. Professor Carver said Gary LaVerne in the Office of Admissions had collected data regarding this matter and then asked Dr. Bruce Walker (director of admissions) to respond to the questions. Dr. Walker reported that the first CAP class was comprised of 23% Asian, 5% African-American, 20% Hispanic, and 51% white, and the CAP enrollees were more diverse than a typical freshman class or transfer class might be. Professor Yates expressed concern that limiting the CAP enrollees might have a negative impact on UT Austin’s goal to increase diversity among its student population. Professor Carver said the CAP had been very popular and that the next class was expected to be almost as large as the old provisional program with 700-800 students matriculating. He said the committee was concerned that the increased enrollment would adversely impact the number of transfer students that could be admitted; this presented a difficult trade-of since the mean GPA of the transfer students was higher than that of the CAP enrollees. Dr. Walker said restriction on enrollees from CAP was congruent with the recommendation of the Task Force on Enrollment Strategies; the task force recommended that CAP not be allowed to exceed 75% of the available transfer spaces. When Professor Yates said he thought the performance of CAP students was not that much different from that of other students, Professor Carver responded that that the CAP students didn’t have equivalent GPAs with other enrollment groups. He said they haven't performed as well as regular students admitted in the fall or those admitted from the top 10% of their high schools. Professor Alan Friedman (English) asked about the reasoning behind the increased math requirement. Professor Carver said that only two colleges here at UT Austin accept Math 301 so the committee felt the CAP students would be better prepared to maximize their options upon matriculating to UT Austin if they came in meeting the higher math requirement. Since there were no other comments or questions, Chairman Hackert moved the proposal to a vote, and the proposed recommendations unanimously passed. 3227   B. Protest to the Proposed Changes to the Degree Requirements for the Bachelor of Business Administration with a Major in Management Information Systems in the Red McCombs School of Business Chapter of The Undergraduate Catalog, 2004-2006, D 2992-2994 (D 3124) — Paul Woodruff (professor, philosophy). Professor Woodruff withdrew his protest after he realized that the catalog change primarily dealt with admissions criteria. C. Educational Policy Committee Amendments to the proposed Recommendation for Change in the Residency Requirement in The UT Austin Undergraduate Catalog, D 2480-2482 (D 3125-3127) — Paul Woodruff, co-chair (professor, philosophy). Professor Woodruff reported that the increased residency requirement to sixty hours approved last year by the Faculty Council, upon the recommendation of the Educational Policy Committee, had been referred back to the committee by the provost’s office because some deans were concerned about the proposal’s potential impact on study abroad enrollment. He said that, although previously approved exchange courses were counted as in-residence, the status of courses offered through affiliated international providers, such as Syracuse University, needed clarification. Since many of these courses have been accepted for credit by UT Austin departments, the committee was recommending that coursework in approved affiliated study abroad programs offered by international providers be counted for in-residence credit by the University. Professor Woodruff mentioned that the committee was also reviewing whether UT Austin needed an official approval mechanism for this type of course rather than the ad hoc system that currently existed; however, he said the committee was not yet ready to make a recommendation regarding this matter. Professor Alan Friedman (English) asked about the status of study abroad programs administered by UT Austin faculty that were not a part of an exchange program. Professor Woodruff indicated that such courses were already counted for in-residence credit, and Provost Sheldon Ekland-Olson concurred by formally entering a positive head nod into the meeting’s record. Professor Lita Guerra (music) said she thought courses offered by other U.S. institutions counted for transfer credit and special consideration for in-residence status was not merited. Professor Woodruff responded that the committee’s recommendation applied to special courses that were offered by affiliated international providers and designed to count for credit at the home institutions of enrollees. As such, the providers were operating as extensions of UT Austin. Professor Guerra said she was concerned that allowing in-residence credit for courses offered by other institutions might encourage students to petition for UT Austin in-residence credit for courses taken at peer institutions that were not taken outside the U.S. Professor Woodruff responded that doubling the residency requirement from thirty to sixty hours was the primary reason for this recommended exception. Professor Guerra commented that when she served on the committee that sought an increase in the residency requirement, the major concern of committee members had been to encourage increased enrollment in coursework offered here at UT Austin. She said the student members on the committee agreed with the idea that courses offered by UT Austin and taught by its faculty qualified for the residency requirement but that courses offered by other institutions qualified only for transfer hours. Professor Larry Abraham (curriculum and instruction) said that he thought the key concern here appeared to be quality control and that this issue involved the institutions and programs where students were actually studying abroad. He said the providers acted as brokers and broadened the array of study abroad opportunities for students from affiliated institutions. Professor Alan Cline (computer science) asked if his understanding were correct that a course titled “History of Italy” offered by Syracuse University would be classified differently based on where the course was taken; if it were taken in Italy, it would count toward the UT Austin residency requirement, but if it were 3228     taken in New York, it would not. Although Professor Woodruff said two such offerings would not actually be the same course, he generally concurred with Professor Cline’s interpretation. Since there were no other comments, Chairman Hackert called for a vote on the recommended amendment, and the amendment was approved. IX. ANNOUNCEMENTS AND COMMENTS. A. Nominations for Coop Board / Men’s and Women’s Athletics Councils and the Civitatis Award. B. General Faculty Elections – final election phase March 29 through April 9. C. Next Faculty Council meeting – Monday, April 12. D. General Faculty Standing Committee’s annual reports due April 30. X. QUESTIONS TO THE CHAIR — None. XI. ADJOURNMENT. Chairman Hackert mentioned that the election process was underway and encouraged Faculty Council members to think about good nominees for leadership positions for next year. He also reminded committee chairs that their end-of-year reports were due on April 30. There being no other comments, Chairman Hackert asked for a motion to adjourn, and the motion passed by acclamation. The meeting adjourned at 3:38 p.m. Distributed through the Faculty Council Web site on April 8, 2004. Copies are available on request from the Office of the General Faculty, FAC 22, F9500. 3229 Appendix A Interim report from the Committee of Counsel on Academic Freedom and Responsibility — Alba Ortiz, chair (professor, special education). This is a preliminary report of the activities of the Committee of Counsel on Academic Freedom and Responsibility (CCAFR). I am presenting it to alert you to two issues that you will be asked to consider next month. Administrative Investigations and Due Process Legislation. In November of 2002, the Faculty Council passed unanimously legislation proposed by CCAFR on procedures for administrative investigations of policy violations alleged against faculty. In response to the administration's concerns about the new policy, and after negotiations with the administration, CCAFR revised the legislation. The revised version was passed on May 5, 2003, by the Faculty Council. Last month, President Faulkner informed us that he would not approve the legislation. We were extremely disappointed, given the amount of time and energy that has been devoted to this policy, and our lack of success in gaining the administration's approval, even after extensive cooperation and two positive votes by the Faculty Council. We believe it futile to try to rework and resubmit the policy. Instead, we will try to accomplish some of our goals, by introducing legislation, co-sponsored by CCAFR and the Grievance Committee that would amend Section 3.18 of the Faculty Grievance Procedure. The proposed amendment would add language to the HOP to the effect that: 1. A faculty member may be suspended with pay before a hearing is conducted, if after consultation with CCAFR regarding the propriety, the length, and other conditions of the suspension, the chief administrative officer determines that the nature of the charges, and the evidence, are such that the suspension is in the best interest of the University. 2. In other cases, if the faculty member indicates that she or he will contest the actions through the faculty grievance process, the University may proceed with disciplining, before a hearing is conducted, provided that the actions taken by the administration can be revoked later and would not result in any permanent loss of property rights, if the hearing were to result in a judgment favorable to the faculty member. 3. If the administration's actions cannot be rescinded, the amendment would require that the Provost, on behalf of the University, consult with CCAFR explaining why the proposed actions need to occur prior to a hearing, and how the faculty person will be compensated for disciplining that is irrevocable, or for loss of property rights, if the hearing proves that the allegations are not true or results in a judgment that the actions taken were too severe. The intent of this legislation is simply to ensure that faculty rights are protected and that they are afforded due process in cases involving discipline and potential termination of employment. Consultation with CCAFR in Promotion and Tenure Procedures. Also during 2002-2003, the administration approved a process in which any problems that arise with a promotion and tenure case may be reviewed by CCAFR between the time the faculty member is notified of a possible negative decision relative to promotion and tenure and the actual notification of denial or promotion, or of termination in cases involving promotion and tenure. The policy was implemented this fall and faculty were made aware, through the promotion and tenure guidelines, that: they or the President may request that CCAFR review the case to determine whether the procedures followed in the promotion and tenure review process were consistent with both the University’s policies and commonly accepted professional standards for promotion and tenure reviews. It is important to stress that CCAFR only reviews the process and not the decision to promote and/or tenure. In December, CCAFR conducted its first review under this policy, at the request of a faculty member who had been denied promotion and tenure; the subcommittee found that there had been no clear policy violations in this case. The subcommittee did identify several areas that need attention. One of these has to do with faculty annual reviews. The HOP states that: 3230 The annual evaluation of each faculty member shall include an assessment of teaching activities, research, scholarship, publications or public service and that the final results of the annual evaluation shall be communicated to each faculty member by the department chair. The policy further states that this communication shall be written and that it shall advise the faculty member of any areas that need improvement. (See Sec. 3.14, Handbook of Operating Procedures and Sections 3.17). Note from Professor Ortiz: [Asked faculty to indicate whether they receive written annual evaluations of their performance. Only 4 or 5 hands were raised.] We are concerned that this policy is not being implemented as intended. Both the response of the members of CCAFR and that of the Faculty Council Executive Committee has reinforced for us that CCAFR should help ensure that both faculty and chairs are aware of the policy regarding written annual evaluations and, more importantly, that department chairs comply with this policy. We believe that all faculty should receive written feedback. But, we are particularly concerned that junior faculty be provided written annual feedback, most importantly after the third year mid-probationary review, so that they get clear signals as to whether they are adequately responding to areas identified as needing improvement and that may affect the decision regarding their promotion and tenure. We will discuss this matter with you next month, will introduce the amendment related to administrative investigations, and will give you a more complete report of our committee activities. In the interim, I urge you to review the history of the legislation on administrative investigations found in the annual reports of CCAFR and the minutes of this body, as well as the HOP policies regarding annual and promotion and tenure reviews, Sections 3.14 and 3.17 of the HOP. 3231 Appendix B Grievance Committee Interim Report, 2003-04 — Janet Staiger, chair (professor, radio-television-film). The Grievance Committee believes that it is important to report in person as well as through the final end-of-year report about the progress of the Committee’s work. This permits the Faculty Council to ask questions. Additionally, it allows the Committee to put more of a personal touch to the report. This year to date we have been working on thirteen complaints. The complaints run from problems in the tenure and promotion and the post-tenure review processes to disciplining, denial of tenure, and termination before the end of a contract. So far we have had three hearings, two more are authorized, and I expect at least one more to be. Thankfully, the Provost’s office has authorized re-starting the search for an Ombudsperson, and a reconstituted search committee will meet later this week to assess where we are and how to proceed. I would also like to thank the Provost’s office, especially Provost Ekland-Olson and Assistant Provost Carla Steinbomer, for assistance this year. Although I shall address a general and significant concern shared by the members of the Grievance Committee, I would like to state that on the whole I believe the Grievance Committee and the Provost’s office have usually worked well together to try to make the Grievance process viable for the University. That said, it is still the case that at times members of the Grievance Committee have questioned whether trying to make the process work is perhaps more detrimental to the faculty than just giving up what to many is increasingly an illusion that any equitable path exists to resolving complaints about how some (not most, just some) administrators pursue their job. In the last major Grievance report submitted in May 2000, now widely referred to as the Ortiz Report, the Grievance Committee wrote: 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. I regret to state that we are still struggling with two of these problems and others are on-going. Part of the problem, as we see it, is that administrators immediately have access to and constantly use on-campus legal advice. Such counsel is free to administrators. By the time a faculty member is aware that he/she may have a problem in an employment matter, the faculty member is already miles behind. Moreover, to catch up requires a considerable expenditure of funds if a faculty member consults an attorney as well. I realize that the University cannot eliminate its attorneys. To do so would be to put the University at risk. However, faculty are, from the start in any dispute, severely disadvantaged. Moreover, even if they expend funds for a lawyer, they will not have that money reimbursed even if they win their grievance. In a recent case, the only one in the last five years in which the Hearing Panelists agreed with the faculty member’s complaint, the hearing panel recommended that the University reimburse his attorney’s fees. President Faulkner rejected that recommendation, stating that the Grievance process shouldn’t be so legal and faculty shouldn’t use lawyers. This past fall, in the case of an on-going grievance, one of the University attorneys was advising the chair involved in the dispute about whether or not the chair should challenge whether one of the hearing members should be asked to remove himself. I pointed out to that attorney that the grievant was not using legal counsel and that the understanding had been that University attorneys should not then be assisting the administrator. The attorney’s response was that this agreement only applied to during the hearings; outside the hearing, “advising members of the administration on issues with legal implications is one of the responsibilities of the Office of Legal Affairs” and would continue. Moreover, in other ways faculty are severely disadvantaged going into a grievance. As detailed in the Ortiz report, discovery is difficult. We thought we had an agreement in 1999 that only the costs of photocopying 3232 documents would occur. We pointed out that asking faculty to pay hundreds (and in a couple cases into the thousands) of dollars for the labor involved in gathering and redacting documents could severely jeopardize the best interests of the University. If the faculty member can’t afford access to documents to prepare his/her grievance, we cannot know if the proper outcome to a Hearing occurred. Recently, this demand that the grievant pay the costs of labor in discovery recurred. Apparently one of the University attorneys has pointed out that state funds cannot be used to pay this labor and so the open-records office is once again requesting that faculty pay the cost. (I would point out that administrators have free access to these documents--a point I will amplify upon in a moment.) Just this past week, I have had a good conversation with this attorney, and we believe that we can solve the problem. However, he wishes us to create a precise process and put this language into the HOP--something that, while I am willing to do, will take us time. And given the difficulties we have had in the past two years in trying to pass legislation to outline due process for people charged with violating university policies, I am not sanguine that this effort will be easy or successful. Additionally, administrators have easy access to documents which they are using to justify disciplining people but which faculty cannot even obtain during open records searches. At least three cases are going on in which administrators claim they are acting in particular ways to discipline the faculty members because of student complaints. When the faculty member ask to see the complaints, the administrators refuse to share them with the faculty member on the grounds of protecting student privacy (the Buckley amendment). If the faculty use open-records to try to see the complaints, the students’ names are redacted. Entire blank pieces of paper have been given to faculty. Worse, I now have a case in which in a Hearing administrator presented the un-redacted complaints to the Hearing panelists in front of the faculty member. This was the first time she had ever seen or heard of these complaints. She certainly had no ability to defend herself against the complaints. Nearly every significant new grievance raises new problems of increased legal wrangling. This can be as silly as the six hours I spent on e-mail and in person with the Provost’s office over whether or not to copy the parties of a grievance on the Hearing panel’s report at the same time that the report is sent to the President. As I said, I realize that the University needs to minimize its risk. I also realize that not everyone coming to the faculty grievance committee is innocent of wrongdoing However, the odds at present are very low that even a wronged faculty person can win a grievance when faced with an array of University attorneys and an administration that controls so much of the process and access to information. Grievants going through the process increasingly have termed it a “sham.” Grievants have told me that the Grievance process itself is as harmful as the original acts by the administrators against whom they grieved because of subsequent retaliation for filing the grievance. The Grievance Committee determined this fall that we should make this situation public. I have defended the Grievance process because at times we have been able to serve as good sources of information to faculty people--a job I hope the Ombudsperson will take up. I have defended the Grievance process as well because, if it works as it should, it might be an opportunity for people to air their concerns, have them heard, and then have colleagues help them to mend fences. One thing the current Grievance Committee intends to do is to advocate that Hearing Panels set out larger-scale recommendations with a stated process for insuring that those recommendations are followed, recommendations that might help heal breaches among faculty. I am not sure where this leaves us, however. The Faculty Grievance Committee is nearly to the point of suggesting to faculty that we cease cooperating in a failed process that pretends to do what it does not. We would then tell faculty with serious problems that they should hire a lawyer and pursue their concerns through the courts. Such a recommendation, I think, would be a sad day for this University. My own hope is that it isn’t too late to establish the Ombudsperson position and create a grievance process that is fair to all concerned parties. 3233 Appendix C Comments by Professor Sharon Strover (chair, radio-television-film) I would like to take this opportunity to comment on the Faculty Grievance Committee and on the University’s grievance procedure. I am speaking from the perspective of a new administrator who is the target of a grievance filed about a year ago. I respect the grievance process and commend people willing to serving on such University committees. However, my experiences cause me to doubt that faculty should have a direct role in running grievance procedures. Indeed, having third parties conduct grievances would yield a superior process and results that everyone could have faith were fair. My own experiences suggest the current grievance process is bankrupt. For those of you unaware of the grievance process, it has two stages. In the first, a panel of grievance committee members determines whether grounds for a grievance exist; they also determine the scope of the grievance, which has some bearing on burden of proof issues. The second stage is an actual hearing of the grievance in which the two "sides" to the disagreement present their cases. Consider this case in point. The grievance filed against me and the former chair of RTF initially was handled in an above board fashion, with responses to the grievance solicited from the former chair, our Dean, and me. In spite of a public denouncement by the grievant that we were dragging our feet, we conformed to all deadlines. Indeed, the grievant was allowed to file an amended grievance that extended the timeline on actually considering the case. A panel determined that there were grounds for a possible grievance and referred it to the second committee to hear. However, that first committee did not agree that everything in the document filed was grievable and determined the burden of proof fell on the grievant. In other words, they did not accept that all elements of the grievance claims were in fact grievable. When the hearing committee then tried to establish possible dates for a hearing last fall, the grievant said she was not ready, extending the timeline further. It seemed clear she also was not happy with the findings of the first committee. The grievant was mentored, and still is, by the current chair of the Faculty Grievance Committee. When Dr. Staiger became chair of the Grievance Committee in fall 2003, and when Neil Armstrong, the former chair, resigned the committee in the fall, this grievance was determined to have been handled improperly and Dr. Staiger told the hearing committee in October not to try to set a date for the hearing. With no input or consultation from the former chair of my department, our Dean or me, the Grievance Committee somehow determined the grievance had been mishandled. They made this determination in October and intended to restart the grievance processes, beginning fresh. I did not hear about it until December. In effect, a grievance in midstream was halted: it had duly constituted committees deliberating on the matter at hand. One might interpret this situation as an attempt by the grievant to try to "take another bite out of the apple" by having another committee re-determine the grounds for the grievance and possibly find grounds more to her liking. Dr. Armstrong objected to the committee’s actions when he learned of it. I objected to the committee’s intended course of action when I learned of it. The attorney working on the case wrote a lengthy and detailed objection to the committee’s intended course of action, noting it violated the HOP. One member of the subcommittee that evaluated the grievance, an attorney on the faculty of the Law School, wrote on the matter: I agree completely with Dr. Armstrong's first email. It is my view that the first proceeding was procedurally and substantively fair and thorough. Moreover, I think it is unduly burdensome and unfair to the department to begin the process anew. Finally, in light of the careful scrutiny and consideration that we (the subcommittee) gave the complaint and supporting materials, as well as the deference we gave to the complainant's allegations, I am certain that repeating the process will be a complete waste of valuable time and resources. These proceedings are labor intensive. The subcommittee and the interested parties have already invested an enormous amount of time and thought in these issues. 3234 Ultimately, if the committee insists on distorting the grievance process in this way, I can foresee a much more limited role for the faculty in grievances in the future. Another member of the intended hearing committee also wrote, in response to a message from the Grievance Committee informing him in December that the hearing committee was to be disbanded: Thank you for your message explaining that our hearing panel has been disbanded. Although I understood our panel was to schedule a hearing as quickly as possible for the benefit of both parties in the grievance, we have been waiting over two months to hear from anyone. The "issues surrounding [the grievant's] first grievance" are not understood by me. I have had no conversations about, or with, any of the parties involved. However, it appears to this outsider that efforts to redesign the process and restart the [grievant’s name] grievance have had as much to do with the impending outcome of the present grievance as with any issues of principle. Defendants, in grievances have rights as well the grievants and my concern is that these rights are now being violated. Is there any way the "defendants" can restart or circumvent the process if they feel that the act of disbanding the panel violates their rights and the HOP or if they don't like the impending ruling of the next hearing panel? Personally, I am delighted not to be involved any more. However, I am concerned that whatever system we have at UT is viewed by all as one of integrity. As far as I know, the Grievance Committee contacted none of these people, and there has been no public justification or explanation for the Committee’s actions in trying to re-start this grievance or to halt the process that was in place. It would appear now that in order to sidestep this disagreement entirely, yet another new course of action has been taken. The first grievance has been withdrawn and a new and expanded grievance filed; I learned this just about one week ago, three months after being informed that the grievance was being restarted. Most of the same material from the first grievance is in this new grievance, as well as a new segment directed at our Dean. We were never consulted on this or notified until we were presented with a grievance that had been filed and on which a subcommittee had already deliberated. This is, plain and simple, shopping for a forum, a practice that would not be allowed in court. Moreover, the manner in which this grievance is being handled, with no initial response or information from the parties who are the targets of the grievance, deviates from procedures followed at peer institutions, according to research conducted by Dr. Armstrong, and from the procedures he himself used as Chair of the Grievance Committee. At this point, this particular grievance will run its course and if its conclusions find against me, I will appeal its outcome. With such a bankrupt process behind it, I believe any appeal I make would be successful on those grounds alone. Consequently, this entire grievance process is a waste of everyone’s time. Inasmuch as this set of experiences may be typical, I urge this faculty to endorse a much improved grievance process that is immune from practices that are at best unresponsive and secretive, and at worst unfair and a waste of time. It seems to me that it should be mandatory that we put grievances processes in the hands of parties who can in no way have a vested interest in outcomes beyond that they be fair.