MEMORANDUM

November 3, 1996

TO:
Senate Subcommittee on Tenure
Senate Committee on Faculty Affairs
Senate Judicial Committee
Faculty Consultative Committee
Members of the Faculty Senate

FROM:
Fred L. Morrison

SUBJECT:
Revised Sullivan Proposal (Sullivan II)

On October 31, Dean Sullivan of the Law School offered for consideration a revised version of the tenure proposal that he first submitted to the Board of Regents earlier in the month. This has been identified in the press as Sullivan II. As before, I am supplying you with my analysis of this proposal and an examination of the differences from the version adopted by the Faculty Senate.

Sullivan II addresses the concerns that had been identified in the previous proposals. It ensures due process by protecting the processes of the Judicial Committee and providing access to that peer review mechanism for all but the most trivial cases. It has eliminated from the drafts the challenges to academic freedom that had been of broad concern. It uses the approach approved by the Faculty Senate for reassignment and retraining in case of programmatic change, permitting termination of an appointment only if a faculty member declines to accept a reasonable reassignment.

The points in which it differs from the version approved by the Faculty Senate and the relevant committees in May are June are as follows:

Coverage. The proposal would cover only the Law School. This is made clear in section 2.1. (There is also a small change in footnote 12 of section 7.11 for the same purpose.) Since the Law School is currently subject to a Status Quo Order issued by the Bureau of Mediation Services, presumably no action can be taken with respect to this proposal at the present time.

Base pay. In all important respects, the Sullivan II draft of section 4.4 follows the Faculty Senate approach. Base pay may only be decreased as is expressly authorized elsewhere in the regulations. There can be no reductions of base pay targeted at particular faculty members. Appeals against pay cuts are to be taken to the Judicial Committee for peer review, including review of academic freedom claims.

A new section 4.5 does provide that base pay could be temporarily cut on a formula basis for all faculty in the University or for faculty in a whole college, but only if the President, the Board of Regents, and the Faculty Senate all agree. Requirement of all three approvals should assure that actions of this kind would only be taken in the most extreme circumstances. The cut could not continue for longer than two years. A similar power already exists in section 11.4 of the current 1985 Tenure Regulations. The new Sullivan language simplifies its language and moves it to immediately follow the provision protecting base pay.

Post-tenure review. The Sullivan II proposal follows the Faculty Senate language with regard to post-tenure review. It does, however, also authorize the Faculty Senate to approve alternative post-tenure review plans put forward by collegiate units. (Section 7A.5) This approach enhances flexibility, while preserving control in the representative faculty body.

Discipline. Dean Sullivan original proposal addressed many of the concerns raised about the discipline provisions of the earlier Regents' drafts. His new draft has addressed the remaining questions.

Grounds for discipline. The Sullivan proposal eliminates all of the contentious rhetoric about the causes for discipline. His proposed section 10.21 retains the four listed causes for termination or suspension of a faculty appointment exactly as they have appeared in the Tenure Regulations since 1985, eliminating the open-ended "adequate cause" language that was contained in the Regents' draft. The Sullivan proposal does add a fifth ground for discipline, "other grave misconduct manifestly inconsistent with continued faculty appointment." It would address serious misconduct (e.g., holding a full-time job at another institution) that might be argued not be to be covered by the existing four grounds. Its scope would be limited, however, by the fact that such grave misconduct would have to be found by peer review through the Judicial Committee.

Minor discipline. The new proposal limits "minor disciplinary actions" to actions such as a letter of reprimand or a suspension of not more than three days. (Section 10.22) By thus limiting these minor actions, it ensures that any more major sanction will need to be accompanied by more substantial procedural safeguards. It permits these these minor sanctions to be imposed only after the faculty member has been given the opportunity for a hearing at which all issues, including academic freedom claims, could be presented.

Programmatic change. The Sullivan II proposal retains the language of the 1985 Tenure Regulations with regard to programmatic change. It then adds to the text of the Regulations language taken from the Interpretation discussed in the Faculty Senate and approved in June. This language requires the University to retrain or reassign faculty members who are affected by programmatic change. The reasonableness of the reassignment can be reviewed by the Judicial Committee, if the faculty member objects. All faculty members affected by reassignment must be given a reasonable reassignment.

The faculty member is also given an additional option. He or she can reject the offered reassignment and take, instead, a termination severance package including a year's notice or severance pay and additional medical benefits, as well as assistance in obtaining other employment. (Section 12.4). Some faculty members may find this option more attractive.

Judicial Committee. The original Sullivan proposal called for the postponement of issues relating to the Judicial Committee and its procedures (items in sections 13 through 15) so that a task force could examine all of the issues in detail. The new Sullivan II proposal seeks an immediate resolution of those issues, so that controversies about the tenure policies can be put to rest for the next few years. Two changes relate to the functioning of the Judicial Committee.

In the future the procedural rules of the Judicial Committee would be approved by a process that parallels that for the approval of rules governing the procedures that departments follow in considering tenure. This involves approval by the Tenure Subcommittee and the Academic Vice President, as well as reports for information to the Board of Regents and the Faculty Senate. (Sections 13.2 and 16.3.)

The Committee is also expressly authorized to appoint a legal officer to assist it in its work. The appointment is subject to approval by the President, but the Legal Officer is subject to the direction of the Committee. This would formalize a process that has already existed for more than a year by mutual consent of the Committee and the President. A similar provision was included in the Faculty Senate version approved in June; there have been small changes in the language.

Judicial procedures. In general, the Sullivan II proposal follows the approach used by the June Faculty Senate draft. It no longer seeks to postpone these questions for further discussion. It rejects the proposals in the Regents' drafts that would have eliminated the obligation of the President to respect the decisions of the Judicial Committee and to meet with the Committee before deviating from its decisions. Under the Sullivan approach, the President must follow the panel recommendation unless the President first meets with the Judicial Committee to discuss any deviation and unless the President identifies in writing "important substantive reasons" for the deviation. (In this latter respect, the language of sections 14.4 and 15.5 are made parallel.)

The Sullivan II draft retains the possibility for a faculty member to appeal to the Board of Regents a decision of the President to terminate that faculty member's appointment. That appeal was contained in the 1985 Tenure Regulations, but was eliminated by the Faculty Senate in an effort to expedite the disciplinary process. The appeal is available only to the affected faculty member; a dean cannot appeal a refusal to fire a faculty member. The change provides additional protection for faculty members.

The Sullivan II proposal would provide for the suspension without pay of a faculty member in very limited circumstances during a dismissal proceedings. The termination could take place only if (1) a majority of the faculty in that individual's department had voted in favor of the removal proceeding, (2) the proceeding had continued for longer than one year, and (3) the length of the delay was not due to the action of the University. This should reduce any incentive to drag out proceedings needlessly, while providing adequate protection against abuse. The faculty member would receive insurance coverage during the suspension and could receive back pay, if eventually reinstated.

* * *

In its response to other proposals that have come forward, the Faculty Consultative Committee identified three overriding issues: the assurance of due process, the protection of academic freedom, and the preserving a reasonable process for change that protects academic appointments. The Sullivan II proposal appears to address all of these concerns satisfactorily. Due process is maintained by effective peer review through the Judicial Committee for all but the most trivial matters (and by assuring access to grievance processes there). Academic freedom is protected in a similar manner and by ensuring that faculty members' appointment cannot be terminated by singling out small "programs" for discontinuation. Barriers to change are avoided by a concept of shared responsibility, in which the faculty members accept the responsibility to accommodate change by retraining and reassignment, if necessary, and the University accepts the responsibility to facilitate that change by assuring continued employment in areas in which the faculty members can be productive.