MINUTES OF THE REGULAR FACULTY COUNCIL MEETING OF
April 15, 2013
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VIII. NEW BUSINESS.
A. Report on UT System’s Conflicts of Interest, Conflicts of Commitment, and Outside Activities policy (UTS 180).
Chair Hilley said she had invited two guests from UT System to come and answer questions about the new proposed UTS 180 policy, and they had graciously agreed. She first introduced Mr. Dan Sharphorn, associate vice chancellor and deputy general counsel of The University of Texas System, by saying she liked his forthright manner in reporting information at the System Faculty Advisory Committee meetings and how he listened to questions and comments made by the faculty representatives. Chair Hilley then introduced Dr. Stephanie Huie, director of The University of Texas System Office of Strategic Initiatives, by describing her as “great” and saying she thought Council members would want to ask specific questions about the UT System Productivity Dashboard from Dr. Huie, the person responsible for implementing this new project. The chair asked for and received a warm round of applause from the Faculty Council to greet the guests.
Associate Vice Chancellor Sharphorn said that he had received a good number of questions from faculty and thanked the Office of General Faculty staff for compiling and sending him the list ahead of time. He first explained that UTS 180 had resulted from Regents Rule 30104, which he described as unlikely to be modified; he said, however, there might be “a little bit of wiggle room” for some changes to UTS 180. He encouraged faculty members to propose specific language for policy changes in those sections they found to be problematic. He recommended that faculty members look at UTS 175, which he described as “settled” and not going to change, for ideas for suggested language changes to UTS 180.
Mr. Sharphorn addressed a recurring question from faculty members about the definition of “UT time” and its relationship to summers and weekends. He noted that , even after much deliberation, the concept remains “vague and confusing” and might best be locally defined. For faculty members on twelve-month contracts who only teach nine months, there is likely no conflict of commitment, though there may be a conflict of interest. He noted that for at least the last ten or fifteen years “The University of Texas System has had a policy that all outside employment has to be approved, even if it is during the summer.” While he perceived that “approval should be a foregone conclusion” if sought for employment or activities during the summer months, he said that disclosure would still be required. He said that the normal faculty grievance procedures were available if faculty members thought their deans or department chairs unfairly denied opportunities for outside work or activities. He said he perceived that many faculty members worked more than eight hours per day on their UT Austin responsibilities and that many also worked on weekends. He recommended that rules be locally defined in a particular university, college/school, or discipline. Mr. Sharphorn said that outside work could detract from a faculty member’s “work, whether it’s a conflict of interest or a conflict of commitment.” He added that the notion of appearances could be problematic, but he thought pre-disclosure was often the best way to remedy or prevent such situations. He said there had been problems in the past caused by specific employee situations, and there have been some cases where the individuals involved in outside activities have caused embarrassment to themselves and/or their affiliated institutions. He also explained that there exists a procedural process to handle confidential activities; however, he perceived there was the opportunity to develop local policies that would allow an administrator, such as a dean, to approve an activity as confidential, even when that activity would need to be reported in what he called “some generic sense.”
Associate Vice Chancellor Sharphorn next addressed questions regarding whether administrative pre-approval was needed for each specific instance of what is thought of as normal scholarly work, such as editing journals or serving on peer review committees. He said he thought general pre-approval could be granted through local institutional policies for many of these traditional scholarly activities that were often encouraged. He also mentioned the sale of artwork or novels, which could possibly generate a large amount of money, as something that would likely require faculty reporting; however, he again said that he thought various units could create particular local policies, all the while understanding and adhering to the spirit of UTS 180. While the notion of conflict of interest is generally understood, conflict of commitment seems to be much more vague and problematic. Because University employment is generally expected to be full-time and a primary responsibility of each individual jobholder, he said it was understandable that members of the Board of Regents could express some concern should they perceive that “faculty members are spending too much time on outside activities,” and could therefore be “neglecting their university responsibilities.”
Associate Vice Chancellor Sharphorn then turned the microphone over to Vice Chancellor Huie who explained that her office was “primarily responsible for the implementation of the policy.” She also noted that in a meeting earlier that day, UT Chancellor Francisco G. Cigarroa had personally expressed his interest in hearing feedback about the policy from faculty members. Therefore, Dr. Huie encouraged faculty members to review the Regents Rule and provide written suggestions regarding areas of particular concern.
When Chair Hilley asked about the specific form faculty members were to use in complying with the new policy, Dr. Huie said that UT System had circulated a form, which will be available electronically, as guidance for institutions to use in developing their own forms. She confirmed that the deadline for submission of the form was May 1, 2013, but she explained that an online process would involve a point-and-click format that will be self-guided and take faculty through the process of disclosure and request for approval. When Chair Hilley asked for additional clarification on what information would be included about faculty members on an individual faculty member’s dashboard, Dr. Huie responded, that “the individual’s name, the nature of the work, whether it’s consulting or something like that, the extent of the work, how often done, and the range of compensation.” Although the form asks about family members, Dr. Huie said information about family members would not be on the dashboard. She explained that presently “the requirement is for a searchable web-based system.” As an example, she said one could search the database to determine what percentage of UT Austin faculty has consulting contracts.
Dr. Blinda McClelland (biological sciences) inquired about the perception of outside employment, especially for non-tenure track faculty members. She asked if punitive action would be taken should an individual receiving full benefits as a contract lecturer at UT choose not to disclose employment in a second job. She also inquired as to whether holding a second job might be used as justification for reducing the UT lecturer’s from full to part-time. Mr. Sharphorn responded that noncompliance with any University policy, including UTS 180, could result in disciplinary action. He also thought that any situation where an employee was holding two full-time jobs would likely have to be addressed on a case-by-case basis. However, he acknowledged that non-tenure track lecturers, who are not expected to perform “scholarly work or research to any great extent” and who generally receive low remuneration from their employment at UT, might be likely to be working at a second job. Vice Chancellor Huie interjected, “Compliance with the policy will be a campus-wide project.” She explained that UT System employees would not be monitoring faculty activities and enforcing compliance. She added, however, that employees from her office were assisting UT Austin compliance and legal officers on technical issues, such as report generation. But any interpretation of data and decision-making outcomes were the responsibility of local campus officials.
Professor Dean Neikirk (electrical and computer engineering) requested privileges of the floor, which were granted. He recalled the earlier example of the artist or author whose work might perhaps be on “a list of activities that would be pre-approved,” but he noted that all compensated activity would still have to be reported along with the amount of money earned. He summarized this situation by saying that this artist or author, who by his/her annual report had been deemed possibly to even have exceeded UT Austin performance expectations and not have had any conflict of commitment, would end up having any outside earnings from work done on non-UT time reported in a searchable database for anyone to easily find. He said he perceived this to be “an extremely intrusive policy and a violation of what little privacy we seem to have.” Dr. Huie responded that this was the input that was needed and being sought. When she inquired if it were the public access that concerned him most, Professor Neikirk confirmed it was, but he also asked why what people do on their own time had to be determined if yearly evaluations confirm that “someone is meeting their responsibilities for the University.” He stressed that faculty are evaluated constantly, often by very stringent peer review committees. If no conflict of interest was discovered, he wanted to know why the compensation amounts were relevant. He pointed out an inconsistency, saying he thought a conflict of commitment could still exist if a piece of art were freely given away with no compensation to the artist. Professor Neikirk asked if all state employees, including the regents and the governor, “had to report every penny they make.” Mr. Sharphorn responded that “the chancellors and the vice chancellors fill out like 25-page documents on all their financials,” although he did not know if the information was retrievable from a publicly searchable database.
Professor Jody Jensen (kinesiology and health education) declared that she considered this policy “an incredible invasion.” She felt very strongly that, if “there is a demonstration or an agreement that there’s no conflict of commitment, then there should be no need to report it.” She was very concerned about undefined appearance being used as the basis for judging appropriateness, which she felt was a form of discrimination. She said UT could ask if she was doing an adequate job here at UT and even if there were anything that conflicted with the job she was responsible for performing here at UT. However, she felt strongly that UT had no right to ask what she did with her private life, what amount she earned in her private life, or whether she “had to work at McDonald’s another forty weeks, so she could send her kids to school. Professor Jensen’s statement was followed by applause from the audience.
Professor Hart asked the Faculty Council to grant the right to speak to Professor Brian Evans (electrical and computer engineering, and chair of UT Austin’s Committee of Counsel on Academic Freedom and Responsibility [CCAFR]), which was then granted. After thanking the system officials for attending the meeting, Professor Evans voiced his concern that UTS 180 had not separated personal from professional activities. He explained that the “professional norms as faculty include academic freedom in teaching, research, and expression.” Because of Professor Evans’ role as chair of CCAFR, his statement regarding the proposed policy is included as follows:
UTS 180 violates the academic freedom safeguards of tenure, due process, and faculty governance. First, it allows termination of tenured faculty for noncompliance. Second, the only due processes are one level of higher review, which is vague, and standard faculty grievance procedures, which are primarily and almost exclusively, for allegations of violations of state and/or federal law. Other options for due process, for example, reviewed by the academic freedom committee are not included. Further, the president has to approve the merits of a grievance for it to proceed to a hearing. Third, faculty-governing boards are not part of this oversight of this policy.
Beyond academic freedom, an employee at a public institution has the full rights of expression and privacy guaranteed by the US Constitution in the way she carries out her work. These rights also apply to her as a private citizen, yet UTS 180 intrudes on the rights of freedom of speech, freedom of religion, and privacy in both professional and private activities. Please scrap UTS 180.
Professor Evans’ statement was also followed by applause. Mr. Sharphorn responded by suggesting that Professor Evans “propose other review processes besides just the grievance procedures.”
Professor Ehud Ronn (finance) asked if UT System had received formal input from the Faculty Council and if such input could still be provided before May 1. He then strongly suggested to his Council colleagues that a committee be expeditiously convened to deal with and preserve faculty rights. Associate Vice Chancellor Sharphorn said that the UT System Faculty Advisory Committee (SysFac) had also raised objections similar to the ones from the UT Austin Faculty Council, and Vice Chancellor Huie added that some changes have been made as a result. Mr. Sharphorn said that there was still time for input. Chair Hilley interjected that SysFac Chair Murray Leaf had written a paper on privacy. While the paper had related to encryption, she said he has since talked to SysFac about UTS 180. Chair Hilley indicated that the “faculty want very much to comply with what is fair,” and that meant “as faculty of a research university that we have no conflict of interest with the contract that we have signed with this University or with UT System and that we have no conflict of commitment.” Once those assurances were determined, Chair Hilley saw no reason for faculty to have to turn in any other documentation. In her opinion, she and the Internal Revenue Service were the only two entities that had a right to know how much money she earned.
When Professor Linda Reichl (physics) inquired if this policy pertained only to UT System, Mr. Sharphorn confirmed that was true. Professor Reichl expressed great concern that once this fact becomes publicly known around the world that there would be very few really outstanding people who would want to join faculties in the UT System, and therefore the policy would end up “destroying the quality of the universities within the System.” Along the same lines, Professor Jon Olson (petroleum engineering) asked, “if there’s been any benchmarking with other public universities as to whether they have similar policies.” He also asked if he were a regular state employee, would he have similar reporting requirements, or did this policy only pertain to those employed in public education. Mr. Sharphorn replied that he had not looked at all other universities, but he thought Rutgers University might have something similar. He indicated that none of the peer institutions that were reviewed had a similar policy to this one. He was also not aware of other state agencies with similar policies. Dr. Huie agreed that there was certainly none with the same publicly searchable component.
After acknowledging that some data collection activities may have contributed to the improvement of educational quality or efficiency, Professor Kamran Aghaie (Middle Eastern studies) said that others might be “politically motivated” and not data-driven. He questioned if there had been any prior determination that a problem needed to be solved, or was the development of the policy “based on a perception or perhaps a prejudice?” Mr. Sharphorn said there had been no systematic data collection, but that there had been “an incident in one of the institutions where somebody’s outside activities far exceeded anything that was reasonable.” After being granted floor privileges, Professor Ali Yilmaz (electrical and computer engineering) asked how the specific incident had been discovered. Mr. Sharphorn replied that the case ended up being reported by the news media largely because the employee had done consulting work for individuals outside the University who were being indicted by the federal government. He added that a number of other issues had surfaced, such as using University resources to run an outside business, which made the situation even more problematic than first discovered.
When Professor Janet Davis (American studies) asked if any projections had been made regarding the cost of the new policy to the UT System as well as the component institutions, Mr. Sharphorn replied they had not. Professor Evans asked if anybody at system had looked at the American Association of University Professors (AAUP) statements regarding conflict of interest and commitment. Mr. Sharphorn noted that he had seen some of the statements at an earlier time but not recently. Professor Evans noted that AAUP had looked at this closely in 2004 and “pretty much took down this kind of policy, just took it apart piece by piece and dismantled it.” He noted that his committee frequently looked to the AAUP for guidance on academic freedom.
After thanking the presenters for their attentiveness and calm and cool demeanors, Professor Alan Friedman (English) said he wondered if perhaps their takeaway from the meeting might be “not that you need to hear a great deal more from various constituents who would be affected, but that this is now clear to be an extraordinary over-reach, an excessive reaction to an incident that will cause an enormous amount of harm and do no good.” The audience responded with applause.
Professor Beckner asked, “how much of page 1 of Form 1040 are you entitled to have, and how much does not intrude on our privacy?” Professor Novak warned that the policy opened up the possibility of lawsuits and invited potential condemnation by the AAUP, which would adversely impact faculty recruitment for many years into the future.
Professor Snehal Shingavi (English) asked for further clarification regarding the types of uncompensated activities that would necessitate faculty reporting. Mr. Sharphorn answered that service on boards and anything else that might appear to create a conflict of commitment. When Professor Shingavi further probed about volunteer service, Mr. Sharphorn responded that a number of different activities had been excluded, such as neighborhood and youth sports activities as well as those that are totally personal. Dr. Shingavi asked if his volunteering for the union on campus might be considered a conflict of interest, and Mr. Sharphorn responded that it would depend on the amount of time spent on the activity. He also did not think that it would be a conflict of interest if a faculty member spoke to the media about things related to the profession. Professor Shingavi expressed confusion and asked what kinds of activities would constitute a conflict of interest, to which Mr. Sharphorn replied: “An unpaid outside activity that might be a conflict of commitment or a conflict of interest.” When asked if raising money for the University by serving on one of numerous bodies of the Texas Exes might constitute a conflict, Mr. Sharphorn answered “no.” When a follow-on question was posed regarding if it mattered if the board generated money for UT, Mr. Sharphorn said that reporting would be required. Professor Shingavi apologized for being obtuse but admitted that he did not understand the policy. Vice Chancellor Huie interjected: “Service on all outside boards is to be reported whether or not it creates a conflict.”
Professor Christine Julien (electrical and computer engineering) asked if the policy applied to staff and graduate students, and Mr. Sharphorn replied that it applied primarily to faculty and employees who are exempt from the Fair Labor Standards Act and therefore do not get paid overtime for working extra time.
Professor Neikirk said that he understood that the policy not only covered disclosure of uncompensated activities but it also required employees to gain approval for participation in those activities. He said he was deeply disturbed that some authority figures would be deciding what was permissible and what was not and that it bothered him that he was being asked to report both compensated and uncompensated activities as well as amounts of compensation earned, but it bothered him even more that he could not participate in an activity unless approval had been granted. Dr. Huie noted that the workflow of the electronic system was being set up for approvals to be made by whomever the employee would normally ask, such as an immediate or functional supervisor.
On behalf of some of his colleagues who had served on the original task force, Professor Pat Davis (pharmacy ) asked why those task force participants did not “see much of a relationship between what that task force came up with and what ultimately ended up as the 180.” Mr. Sharphorn explained that the task force’s proposal was not in the form that could have been a policy and that “the principles within that document sort of evolved and strayed over the course of the fall as we got direction from the board office.”
Dr. Hart asked what was considered part-time faculty, to which Mr. Sharphorn replied that this was “a fractional issue” rather than one pertaining to tenured or tenure track status. When Dr. Hart asked if part-time faculty members could “decide for themselves if they believe there’s a conflict or not,” Mr. Sharphorn replied “yes.” Dr. Huie interjected that a provision could be added if the institutional leadership was not comfortable with the policy. Dr. Hart said she found it odd that the policy was trusting of part-time faculty members to decide for themselves whether or not they have conflicts of interest, while it was not trusting of the full-time faculty to make these decision.
Professor Reichl asked how implementation was going to be policed. She wanted to know if everybody’s personal lives would be searched or would this only occur to certain people of interest? Dr. Huie responded by saying, “Compliance with the policy will be centered on your campus and with your normal compliance officers, as with all other campus policies”
Professor Anthony Petrosino (curriculum and instruction) asked if there was the possibility of extending the May 1 deadline, possibly by a week or ten days, considering the type and depth of the conversation, so that groups could be convened to provide the input that was sought. Mr. Sharphorn thought that that might be possible, although he indicated that feedback should still be provided as quickly as possible. Dr. Huie assured the audience that any feedback from the meeting would be shared immediately with the chancellor; she said the information would also be shared with other UT System staff members .
Professor Evans pointed out that system records indicate that “graduate teaching assistants and research assistants are exempt from the Fair Labor Standards Act and, therefore, may be covered under this policy.” He added that there were approximately 5,000 individuals in these job classification across the campus.
Professor Olson asked that UT System define the term “uncompensated activity” and list what should be considered in this context. He noted that some activities should be protected and not require pre-approval for the employee to participate in, if they are “not within the Systems right to ask.”
Chair Hilley noted that approximately 98% of her outside activities were “silently encouraged” by her dean and the head of the Butler School of Music because they served to put the presence of UT Austin’s College of Fine Arts and the Butler School of Music out all over the country and throughout the international community. Mr. Sharphorn replied that, again, a college or school could have a policy listing pre-approved activities, for which no permission had to be obtained.
Professor Hilley asked any deans that might be attending the meeting if they “have had discussions with their academic unit heads” about the new policy, given the fast approaching May 1 implementation deadline. Dean Thomas Gilligan (McCombs School of Business) responded that his school had been “having conversations about this in our executive committee, which are department and program chairs from when we first learned about it.” He said his school had made the documentation and the form available to all faculty members and asked for their opinions to be shared back to their department chairs. He indicated that there had been discussions with the provost and other deans. However, he thought the approach had been to wait and see what was going to actually be required and who was going to have to approve the forms. He added that he needed more guidance about the approval process and the information that had to be disclosed. From his discussions with colleagues at peer institutions, Dean Gilligan said he had become “convinced that this is a cutting-edge policy.” This comment was met with laughter and applause.
Professor Lynn Westbrook (information) cautioned that faculty member’s personal safety might be jeopardized if information about their involvement in controversial activities were made public. Mr. Sharphorn thought that there should be a way to prevent public disclosure by dealing with some of these issues locally. Dr. Huie stated that this very issue had been raised, and while she was not in a position to make a decision regarding this important matter, she planned go back to the system and raise the issue again.
After being granted permission to speak, Professor Robert Young (community and regional planning) also expressed serious concern about the impact this policy would have on recruiting. Early on in every recruiting meeting, he said, the question regarding the policy on outside activities and endeavors was raised. He said he was convinced that recruits would decline offers based on this policy, which would result in a loss of talent and would have a negative impact on the University’s standing. He concluded his comments with: “I would also just say that when one of my colleagues from the business school says that we need to have a committee to talk about resisting this program, then you know you’re on the verge of revolution, and you have to be very careful.” His comment was followed by laughter and applause. Mr. Sharphorn expressed his frustration over the lack of systematic feedback regarding issues such as recruitment, and he suggested that represented groups get together and provide this kind of feedback. While many of the issues have been raised before, he said they might not have received the necessary attention. He further stated that he was “supportive of the notion that let your faculties in your units work this out,” and then the units should tell UT System what would work for them. He continued: “On the other hand, what I think we sometimes hear from the faculties is that you’ve got a mistrust of your administrators so you want us to set up the rules that protect you, rather than have you work it out locally.” He added that he did not know how to deal with that situation because he would rather defer to the faculty and individual units to come up with specific policies that will work within the parameters provided in the Regents' Rule.
Professor Susan Klein (law) asked what kind of evidence was sought and if names should be provided of faculty members who would either resign from outside activities or from their employment at the University to avoid having to disclose the information required by the new policy. She also knew of specific colleagues who are leaving for Harvard, Yale, and other places because of recent legislation regarding guns on campus. Professor Klein also said she knew of one former task force member who stated that the UTS 180 policy had “nothing to do with what she did on the committee.” Mr. Sharphorn replied that names were not required, but it would be helpful to him if she emailed him the example cases she just cited.
Professor Aghaie commented that employees are being “required to provide a lot of data to prove all sort of things, yet the policy was not based on any actual data to begin with.” Mr. Michael Morton (president, Senate of College Councils) added that the students are greatly concerned about how the policy was negatively impacting recruitment. He explained that the students have chosen The University of Texas at Austin because of its high academic standards and its great faculty. He added that policies that harm recruitment affect the students as well as the faculty and staff.
Chair Hilley provided the following email addresses for the two presenters: (email@example.com and firstname.lastname@example.org). She asked Faculty Council members to flood them with emails with requested data and specific information as requested. After thanking Mr. Sharphorn and Dr. Huie for their participation in the meeting, Chair Hilley asked the Council for a round of applause.
Professor Ronn asked Chair Hilley how the Council should address the proposal in addition to flooding the presenters’ email boxes. Chair Hilley said this issue would be the first item at the next meeting of the Faculty Council Executive Committee.
When Professor Friedman reminded the Council that any member could introduce a motion for action, Chair Hilley seconded that comment. She invited all members to send her emails with any comments or suggestions. She then asked Professor Mary Rose to present the internal transfers legislation (see item “C”).
Reference meeting transcript.