IV.
REPORT OF THE CHAIR.

Because Chair Neikirk (electrical and computer engineering) was unable to attend the meeting, Chair Elect Alan Friedman presented the Chair’s report. First, he thanked President Powers for the extensive amount of work he had expended in recent weeks on behalf of the UT Austin community. After offering well wishes for the president’s health, he added, “We need you on the job, and we need you doing well.” Second, Chair Elect Friedman said the Faculty Council leadership greatly appreciated the extent to which the administration had involved them in meetings regarding the recent issues and concerns that President Powers had just reported to the Council. The chair elect added that he perceived some of the events and the media coverage during the last few days as positive developments.

Chair Elect Friedman said some faculty members had indicated they were confused about what they could and could not do regarding legislative issues so he had asked Vice President Patricia Ohlendorf (legal affairs) to provide information on these important matters at the Council meeting. Vice President Ohlendorf said she thought the roles of the faculty and that of the individual faculty member were clearer in theory than in practice. She invited those with specific questions about what they were planning or wanting to do to contact her in advance before acting. In addition, she said Associate Vice Presidents Gwen Grigsby and Carlos Martinez (government relations) would also be able to answer questions and provide advice. Vice President Ohlendorf said she thought there were opportunities for individual members of the faculty or a group of faculty members to raise concerns about legislation by working through UT Austin’s governmental relations office. By contacting Associate Vice Presidents Grigsby and/or Martinez, faculty members could possibly channel their concerns and comments to the president or other administrators, who might be able to utilize the information when testifying before a committee or speaking to legislators on a particular issue or closely-related one. She indicated that the letter Chancellor Cigarroa wrote to Governor Perry about the potential impact of concealed guns on overall campus safety drew from information from individuals and groups across the UT System. She said the letter was a good model because the content focused on the facts the chancellor wanted considered and expressed his personal concerns as an individual and member of the broader University community about campus safety issues. She said the chancellor’s letter only addressed detrimental factors, which she thought was quite acceptable. In addition, she said the University, through its administrators, faculty and/or staff, could provide information in response to questions from legislators.

She said it was important that faculty work through the president’s office or through the governmental relations office as had occurred with the Faculty Council resolutions on the concealed carry matter. She said state employees are required by law to refrain from lobbying for or against legislation, which means a state employee cannot ask a legislator to vote either for or against s specific piece of legislation. She said this is different from a state employee providing information about the impact that might occur if a piece of legislation is passed or not passed by the legislature. After describing this as an important distinction, she said it was sometimes confusing and much easier said than done. That is why, according to the vice president, it is important to check with her office if there is confusion or doubt about a specific activity or document being developed.

In terms of a faculty member’s role as an individual, she said it is appropriate to express opinions, attend rallies, and lobby. However, when acting as an individual, she said the University makes two specific requests of its employees. First, the University asks that its resources not be used when an employee is interacting as an individual on a political or legislative matter. The vice president said this means the individual should not use University email, including UT accounts or any located on UT servers. Even though UT has a policy that allows employees incidental use of their email for personal activities, she said it is advisable not to depend on this policy when using email for political/legislative purposes because such usage can run into issues where people are trying to bifurcate the two. Second, the University asks that an employee who registers attendance and/or testifies at a legislative hearing clarify on the registration form that he or she is there as an individual and not representing the views nor otherwise representing the University. She explained that the form has fields for specifying the attendee’s employer and position on the proposed legislation/issue. When an individual is attending the hearing as an individual, it is acceptable to say as a statement of fact that he or she is employed at UT Austin and to indicate a position of being for or against the legislation. However, she said it is highly recommended that the attendee clearly write on the form that he or she is there as an individual and not representing the view nor otherwise representing the University. If the attendee actually testifies, she advised that this same statement be made as part of the testimony so it will be entered into the record as well.

With regard to the registration form, Professor Cummings said she thought it was acceptable to check the “as an individual” representation box and just write “professor” in the occupation field. Vice President Ohlendorf said the individual could still be asked during the course of testifying about his or her employer; if this occurred, she suggested that the individual clearly say that he or she is there as an individual and not representing his or her employer. Professor Cummings said the first question asked was “Who are your representing?’ She asked it if were acceptable to initially make the statement about representing herself but later disclose, if asked, that she was a professor at UT Austin. Vice President Ohlendorf affirmed this would be acceptable, but she said it was important to be clear both on what was written on the form as well as what was stated verbally. Because only a few people see the form, probably the clerk or the committee chair, she said others in attendance might only hear what was said verbally. If the University got a call from someone asking why a professor from UT Austin was testifying about gun legislation, she said there would be proof by what was written on the form that the professor was testifying as an individual and not representing UT Austin.

Professor Philip Barrish (English) asked if he made it clear that he was representing himself and not the University, could he draw on his professional experience as a teacher or researcher and present information that is pertinent to the issue. For example, he asked if he could say what he believed the effect would be in a classroom if students were carrying concealed weapons? Also, he asked if he could provide information about his being in the library on September 28, 2010, when the Colton Tooley tragedy occurred, as long as he talked about the experience based on his personal and professional prospective? Vice President Ohlendorf responded “yes” but added it was important to clarify, as he had indicated, that he was testifying as an individual and not representing the University. She also said it would be important to not disclose any confidential information acquired though his role as a faculty member.

Chair Elect Friedman thanked Vice President Ohlendorf for the helpful information and asked if she might be willing to put the information in writing so individuals would be able to use it as a reference. Vice President Ohlendorf responded “yes,” and the chair elect thanked her again and said, “That would be terrific.”

Professor Barrish asked if it would be possible for an individual to introduce the Faculty Council resolution and read it into the record at the legislative hearing? Vice President Ohlendorf said she recommended leaving it up to the Faculty Council leadership to choose the method by which it would like the resolution to be communicated. In the case of a public resolution that were being read just as a statement of fact as to what had happened, Vice President Ohlendorf said there would not be legal issues involved with an individual doing that.

Professor Edmund T. Gordon (anthropology and African and African Diaspora studies) asked if a faculty member could sign, as an individual, a petition against the right to have guns on campus? Vice President Ohlendorf responded “yes,” but then she said it would be important to be careful how this was done. She said there were some grey areas in the law such that someone could perceive this as a state employee taking part in illegal activity. Professor Gordon asked what would be the legal interpretation if a faculty member decided to circulate a petition that stated, “We are the faculty members of The University of Texas at Austin and we oppose such and such…” Vice President Ohlendorf said she thought such an activity would probably be read as the individual was representing the institution and would be unacceptable according the law. If an individual waned to do something like that, she said they could use language similar to the following: “We, x, y, and z, who happen to be faculty members at The University of Texas at Austin, but not representing the University in any way, want to do such and such…”

Professor Elizabeth Cullingford (English) asked if it were legal for a faculty member to use his or her University email to organize opposition by getting a group of like-minded faculty together to plan a strategy? Vice President Ohlendorf said she needed to bifurcate the question because the first part of the question’s intent seemed to differ from that of the second part. She did not think there would be a problem if the purposes were to just have a meeting of people and talk about what some concerns might be from a factual perspective and what some strategies might be to get that information to the appropriate parties. However, if the intent of the email was actually “to organize people in opposition to some legislative or political issue,” then the vice president said, “… I think that would, at least on first blush, be considered illegal.” Professor Cullingford commented that she thought there was “a very big grey area in the middle.” She said she found it difficult to draw a line between informing and organizing, when, for example, faculty members were using email accounts to do the following: relaying to one another what was occurring or talking about their concerns on issues being presented in hearings or saying ridiculous things about the ridiculous things that others have said or determining times when individuals could go to testify at a hearing. She asked if the vice president were recommending that the faculty should immediately get gmail.com accounts to protect themselves? Vice President Ohlendorf said she had explained to her own children that when they opened gmail.com accounts they were giving up their privacy rights because Google stores everything that occurs in a cloud. However, from a legal rather than a privacy standpoint, it was generally advisable to conduct the types of activities that Professor Cullingford had described in a private email account. She said if the legitimate aim was to establish a faculty group that wanted to actually hold meetings to talk about legislative issues and not to meet to organize against an issue or piece of legislation, then inviting colleagues to the meeting would be legal. However, if the purpose of the meeting were to organize against a piece of legislation, then she would suggest the correspondence should be done privately. She added that it was a reasonable position for faculty members to want to know what is going on and to share information. On the other hand, she said she had heard ridiculous things said by both ridiculous people as well as very reasonable people, which is what she thought kept lawyers in business.

With regard to the matter of confidentiality, Professor Erika Bsumek (history) asked if a faculty member could talk about a situation where there were students with mental illnesses who had threatened other students? Vice President Ohlendorf said the faculty member could certainly tell about this situation as long as particular individuals were not identified.

Chair Elect Friedman thanked the vice president again for her informative report. He added that faculty members were hoping the resolutions approved by the Faculty Council would be widely circulated.

With regard to other business, Chair Elect Friedman said that Chair Neikirk wanted Council members to receive copies of the following correspondence:
  • University of Texas Chancellor Cigarroa to Governor Perry (Appendix A)
  • AAU President Berdahl to Texas A&M University Chancellor McKinney (Appendix B)
  • Texas A&M University Chancellor McKinney to AAU (Appendix C).

Chair Neikirk also wanted the Council to know that selection of the members of the ad hoc Committee on Faculty Excellence was approaching completion. A list of those who have been asked to serve and the responses received thus far is available in Appendix D. Chair Neikirk is planning to call a meeting of the ad hoc committee when he returns to Austin.

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