Faculty Grievance Committee
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.
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 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
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
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