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Faculty Grievance Committee

During academic year (AY) 2003-04, fourteen faculty and assistant instructors have contacted the chair of the Grievance Committee regarding complaints involving termination, denial of promotion and tenure, disciplinary actions, and withholding of substantial rights. Three of these were continuations from the previous academic year, and the rest were new to this year. Of the fourteen cases, seven were resolved through mediation and informational counseling by the chair of the committee. The other seven were found grievable, with three hearings occurring and four being scheduled as of the writing of this report.

Besides the various grievance cases, the Grievance Committee also recommended changes in the HOP to provide consultation with the Committee of Counsel for Academic Freedom and Responsibility by administrators prior to suspension with pay, any irrevocable act of disciplining, or loss of property rights in advance of a grievance or termination hearing. It is also proposing legislation to insure that discovery is not costly to grievants.

Additionally, because of changes last year in the traditional interpretation of grievance procedures by the then chair, the Grievance Committee reviewed the rights of grievants potentially harmed by those changes. After lengthy consultations and extensive discussion, the Grievance Committee determined that any cases from AY 2002-03 in which procedures had deviated from the normal practices of the past seven years would be restarted at an appropriate place. The Grievance Committee recognizes the need for consistency in interpretation and practices. Thus, the committee also approved, on February 26, 2004, its “Guidelines for Faculty Grievance Procedures” to serve as an on-going committee document of interpretation and practice. It hopes that this committee document will help insure continuity in the grievance process from year to year.

The committee was also pleased that the provost re-opened funding for the ombudsperson and looks forward to the inauguration of that assistance to faculty and administrators next year.

The committee made an interim report to the Faculty Council on March 22, 2004, emphasizing the difficulties of the grievance process, particularly in relation to “increased legalization.” The committee reported that some members of the Grievance Committee still question whether trying to make the process work is more detrimental to the faculty than giving up what to many is increasingly an illusion that any equitable path exists for resolving complaints about how some administrators pursue their job. In the last major grievance report submitted in May 2000, now commonly referred to as the Ortiz Report, the Grievance Committee wrote:
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.
We regret to state that we are still struggling with these problems.

Part of the problem is that administrators have immediate 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. We 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 of any dispute, severely disadvantaged. Moreover, if they should 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.

In the case of an on-going grievance this past fall, 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 recuse himself. The grievance chair pointed out to that attorney that the grievant was not using legal counsel and that the University attorneys should not assist the administrator. The attorney’s response was that this agreement applied only 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 documents would be charged. We pointed out that asking faculty to pay hundreds (and sometimes thousands) of dollars for the labor involved in gathering and redacting documents could severely jeopardize the best interests of both them and 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 requiring faculty to pay the cost. (Administrators have free access to these documents--a point to be amplified upon below.) Recently the grievance chair has 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 the committee is willing to do, but that will take 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, the committee is not sanguine that this effort will be easy, quick, 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 to discipline the faculty members because of student complaints. When the faculty ask to see the complaints, the administrators refuse to share them with the faculty 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 deleted. Entirely blank pieces of paper have been given to faculty. Worse, before the Grievance Committee is a case in which in a hearing the 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 them.

Nearly every significant grievance raises new problems of increased legal wrangling. This can be as silly as the six hours the grievance chair 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. The Grievance Committee realizes that the University needs to minimize its legal risk. It also realizes 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 committee members 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. The current grievance chair has defended the grievance process because at times we have been able to serve as good sources of information to faculty people--a job we hope the ombudsperson will take up. The current chair has defended the grievance process as well because, if it works as it should, it is an opportunity for aggrieved 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 to heal breaches among faculty.

The Faculty Grievance Committee is not sure where this leaves us, however. The 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 would be a sad day for this University. Our hope is that it is not too late to establish the ombudsperson position and create a grievance process that is fair to all concerned parties.

I wish to extend my appreciation to those members of the committee who have given of their time and expertise during this academic year and to the members who will serve on subcommittees over the coming months: Lynn Blais (law), Neal Burns (advertising), Mia Carter (English), Karen Engle (law), Karl Galinsky (classics), Susan Heinzelman (English), Martha Hilley (music), Joni Jones (theatre and dance), Robert King (linguistics), Tessie Moon (mechanical engineering), Paula Murray (management science and information systems), Alba Ortiz (special education), Stanley Roux (biological sciences), Lorenzo Sadun (mathematics), Mary Steinhardt (kinesiology and health sciences), Darlene Wiley (music), and James Yates (educational administration).

Janet Staiger, chair