MAY 20, 1999
The fifth meeting of the Faculty Senate for 1998-99 was convened in 25 Law Building, Minneapolis campus, on Thursday, May 20, 1999, at 3:16 p.m. Coordinate campuses were linked by telephone. Checking or signing the roll as present were 105 voting faculty/academic professional members, 1 ex officio member, and 3 nonmembers. President Mark Yudof presided.
A. Interim Policy on Faculty Development Leaves
(http://www1.umn.edu/usenate/policies/facdevleavecp.html)
| Approved by the: | Faculty Senate October 15, 1998 Administration November 25, 1998 Board of Regents December 11, 1998 |
B. Administrative Procedures for the Interim Policy on Faculty Development
Leaves
(http://www1.umn.edu/usenate/policies/facdevleaveadmin.html)
| Approved by the: | Faculty Senate November 5, 1998 Administration April 22, 1999 Board of Regents - no action required |
C. Amendments to Faculty Tenure
| Approved by the: | Faculty Senate April 22, 1999 Administration PENDING Board of Regents PENDING |
D. Interpretation of Faculty Tenure
| Approved by the: | Faculty Senate April 22, 1999 Administration PENDING Board of Regents PENDING |
E. Amendment to the Judicial Committee Rules of Procedure
| Approved by the: | Faculty Senate April 22, 1999 Administration PENDING Board of Regents PENDING |
The Faculty Senate minutes are available on the Web at the following URL:
APPROVED
FOR INFORMATION:
According to Section 14.4 of the Tenure Code, "If the Judicial Committee decides that the President has imposed an action that is less favorable to the faculty member than it had recommended, it shall inform the faculty by publication of the President's action in the docket of the Faculty Senate. If the faculty member waives rights to confidentiality, the full text of the statement will be published. Otherwise a summary of the statement will be published without identification of the faculty member or information that may indirectly identify the faculty member." A background and summary of the President's decision in a termination-for-cause case heard by the Senate Judicial Committee follows:
The Complainant was hired as an assistant professor in 1966 and was promoted to an associate professor and awarded indefinite tenure in 1967. In 1994, the Dean initiated steps to terminate the Complainant's status under the Tenure Code because, "there had been no progress on any front with the Complainant, that he was not contributing usefully to the campus, and that every effort to find a successful solution up to that point had not worked, and therefore we should proceed to a review of his tenure status." In 1995, the Dean asked the Chair of the unit to convene the senior faculty to consider termination of the Complainant's tenure; the faculty recommended that the Complainant be terminated by a 10-6 vote. The Dean recommended termination to the Senior Vice President for Academic Affairs who concurred with the recommendation.
The Complainant notified the Senate Judicial Committee (SJC) of his intent to file a complaint in March, 1996 regarding his notice of termination and alleged that it was prompted by "personal dislike and prejudice" and thus violated the Tenure Code. The SJC Chair appointed a Panel of 5 members and 1 alternate to hear the complaint. Prehearing conferences were held in January and May 1997, and evidentiary hearings began in October 1997 and concluded in January 1998.
The SJC Panel submitted 60+ pages of Proposed Findings and Recommendations to the President. A plurality of the Panel found serious failures in the Complainant's research and service, but concluded that the Respondent did not, by clear and convincing evidence, prove that he failed to perform reasonably adequately. In addition, a majority of the Panel concluded that the Respondent failed to demonstrate that the termination of Complainant was appropriate as opposed to some lesser action.
According to the Tenure Code, the President may impose action less favorable to the faculty member only for important substantive reasons. The President observed that ten senior faculty members in the Complainant's unit -- a solid majority -- concluded that he failed to perform reasonably assigned duties adequately and that his tenured employment should be terminated. He also noted that administrators initiated termination proceedings only after years of unsuccessful efforts at remediation. Overall, the President found that the Complainant did not perform his research, teaching, or service duties adequately. He cited lack of significant research or scholarly publications since 1970, inadequate class preparation, unapproachable manner, and lack of concern for safety, and little or no service to the campus, community, or professional field. In addition, he noted the fact that the Complainant received numerous warnings over the years that he was not fulfilling his duties as a tenured faculty member and was given many opportunities to improve his performance.
On February 18, 1999, the President rendered the following decision:
EDWIN FOGELMAN, Chair
JUDICIAL COMMITTEE
FOR INFORMATION:
At the request of the Judicial Committee, the Tenure Subcommittee and Executive Vice President and Provost Bruininks approved the following revision to the Judicial Committee Rules of Procedure:
6(b) Attorneys. [Either party may be represented by an attorney.] THE UNIVERSITY ADMINISTRATION WILL BE REPRESENTED AT JUDICIAL COMMITTEE PROCEEDINGS BY AN ATTORNEY ONLY WHEN THE FACULTY MEMBER IS REPRESENTED BY AN ATTORNEY. If an attorney notes an appearance in any case, subsequent communication with the party shall be directed to the attorney, unless the party requests that copies of correspondence and other writings be directed in addition to the party.
COMMENT:
In the past, the Senate Judicial Committee Rules of Procedure had a statement in the preamble that said the University administration could not be represented by an attorney if the Complainant was not represented by an attorney. This concept was strongly supported by the committee, but they soon realized that the statement could not prevent University administrators from consulting with the General Counsel's Office about Senate Judicial Committee cases, so the statement was stricken. However, in an effort to ensure fairness, the committee now proposes the above amendment which defines "representation" as attendance at the actual proceedings (prehearing conferences and evidentiary hearings) rather than consultation throughout the hearing process.
REQUIRED ACTION:
As required by Sections 13.2 and 16.3 of Faculty Tenure, this amendment to the Judicial Committee Rules of Procedure proposed by the Judicial Committee has been approved by the Tenure Subcommittee and the senior academic administrator. The change must be reported to the Faculty Senate and the Board of Regents before it takes effect.
EDWIN FOGELMAN, Chair
JUDICIAL COMMITTEE
CAROL CHOMSKY, Chair
TENURE SUBCOMMITTEE
DISCUSSION:
Professor Chomsky, chair of the Tenure Subcommittee, said that the Judicial Committee requested a change in their Rules of Procedure. Additionally, a sheet was distributed at the meeting detailing a comment that the Judicial Committee would also like to add to the Rules. She added that while the printed agenda reported that this was approved by Executive Vice President Bruininks, he has not formally responded yet.
MOTION:
To approve the following policy:
SECTION I. PREAMBLE
The Intellectual Property Policy exists to encourage research and innovation, clarify ownership of intellectual property rights, create opportunities for public use of University innovations, and provide for the equitable distribution of monetary and other benefits derived from intellectual property.
SECTION II. APPLICATION
Subd. 1. This policy applies to all faculty, staff, students, and any other persons employed by the University; to all persons receiving funding administered by the University or receiving other compensation from the University; and to all University-enrolled graduate students and post-doctoral fellows regardless of funding or employment status.
Subd. 2. This policy applies to intellectual property disclosed to the University after the effective date of the policy.
Subd. 3. The president, in consultation with the vice president for research and the Faculty Senate, shall adopt procedures to implement this policy.
SECTION III. DEFINITIONS
Subd. 1. "Creator" means the individual or group of individuals who invented, authored, or were otherwise responsible for the intellectual creation of the intellectual property, as defined in the applicable intellectual property statutes.
Subd. 2. "Intellectual Property" means any invention, discovery, improvement, copyrightable work, integrated circuit mask work, trademark, trade secret, and licensable know-how and related rights. Intellectual property includes, but is not limited to, individual or multimedia works of art or music, records of confidential information generated or maintained by the University, data, texts, instructional materials, tests, bibliographies, research findings, organisms, cells, viruses, DNA sequences, other biological materials, probes, crystallographic coordinates, plant lines, chemical compounds, and theses. Intellectual property may exist in a written or electronic form, may be raw or derived, and may be in the form of text, multimedia, computer programs, spreadsheets, formatted fields in records or forms within files, databases, graphics, digital images, video and audio recordings, live video or audio broadcasts, performances, two or three-dimensional works of art, musical compositions, executions of processes, film, film strips, slides, charts, transparencies, other visual/aural aids or CD-ROMS.
Subd. 3. "Net Income" means the gross monetary payments the University receives as a result of transferring rights in the intellectual property less the University's out-of-pocket expenditures (including legal fees) directly attributable to protecting, developing, and transferring that intellectual property.
Subd. 4. "Regular Academic Work Product" means any copyrightable work product which is an artistic creation or which constitutes, or is intended to disseminate the results of, academic research or scholarly study. Regular academic work product includes, but is not limited to, books, class notes, theses and dissertations, course materials designed for the web, distance education and other technology-oriented educational materials, articles, poems, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, or other works of artistic imagination. Software specifically needed to support a regular academic work product or which is designed to disseminate the results of academic research and scholarly study is also considered a regular academic work product.
Subd. 5. "Employee" means a person employed or otherwise compensated by the University, including faculty members, staff members, and students.
Subd. 6. "Specially Commissioned Work" means a work specially ordered or commissioned and which the University and the creator expressly agree in a written instrument signed by them shall be considered as such.
SECTION IV. OWNERSHIP
Subd. 1. University Ownership. Subject to the exceptions identified in subd. 2, the University shall be the sole owner of all intellectual property created through the use of University resources or facilities, supported directly or indirectly by funds administered by the University, developed within the scope of employment by employees, agreed in writing to be a specially commissioned work, or assigned in writing to the University.
Subd. 2. Exceptions to University Ownership.
a) The University shall have no ownership rights in the following intellectual property, which shall be owned by its creator:
ii) Intellectual property created by a student solely for the purpose of satisfying course requirements, unless the student assigns ownership rights in the intellectual property to the University in writing or assignment of such ownership rights to the University is made a condition for participation in a course.
Provided, however, that if the intellectual property referred to in (i) or(ii) is a derivative of or otherwise uses pre-existing University-owned intellectual property, this provision shall not prevent the University from asserting its pre-existing rights.
b) For intellectual property created in the course of or pursuant to sponsored research, external sales, industrial affiliates programs, or other contractual arrangements with external (non-University) parties, ownership will be determined in accordance with the terms of the University's agreement with the external party and applicable law.
c) For intellectual property created in the course of or pursuant to activities that fall within and comply with the regents' policy on Outside Consulting, Service Activities, and Other Work, ownership will be determined in accordance with the terms of any agreement governing intellectual property developed pursuant to such activities.
Subd. 3. Rights to Publish. Nothing in this policy shall be construed as affecting the rights of a creator to publish, except that the creator must agree to observe a brief period of delay in publication or external dissemination if the University so requests and such a delay is necessary to permit the University to secure protections for intellectual property disclosed to it by the creator.
Subd. 4. Use of Teaching Materials. In order to facilitate joint work on teaching materials, and notwithstanding the ownership rights otherwise granted by this policy, individuals who contribute to jointly produced teaching materials thereby grant a nonexclusive, nontransferable license to the University to continue to use such jointly produced teaching materials in University courses.
SECTION V. DISTRIBUTION OF INCOME
Subd. 1. Intellectual Property Derived From Academic Research or Scholarly Study.
a) Unless otherwise agreed in writing by the University and creator, in the event that the University receives income from intellectual property that is derived from academic research or scholarly study, that is disclosed to and licensed or otherwise transferred by the University's technology transfer unit, and that is not agreed in writing to be a specially commissioned work, any net income will be divided as follows:
ii) 33-1/3% to the Office of the Vice President for Research to support the University's technology and transfer unit and to support research and scholarly activity at the University;
iii) 8% to the creator's college(s)/school(s) that supported the creation of the intellectual property; and<> iv) 25-1/3% to the department(s)/division(s)/center(s) that supported the creation of the intellectual property to be spent in support of the creator's research or other directly related University work.
Subd. 2. Other Intellectual Property. If the University receives income from intellectual property disclosed to and licensed or otherwise transferred by the University's technology transfer unit and not covered by subd. 1, it may be appropriate to share some portion of the net income with the creator in the form of a bonus or other temporary salary supplement. Any such distribution will be made in the discretion of the vice president for research in consultation with the creator's supervisor.
SECTION VI. UNIVERSITY RESPONSIBILITIES
The University shall have the responsibility to:
Employees, all persons receiving funding administered by the University or receiving other compensation from the University, and all graduate students and post-doctoral fellows regardless of funding or employment status, have a responsibility to:
Failure to comply with the provisions of this policy is a violation and may result in discipline of an employee in accordance with applicable University policies and procedures.
I have read and understand the attached Board of Regents "Intellectual Property Policy." I understand that the provisions of that policy apply to all faculty members, staff members, students, and any other persons employed by the University, to all persons receiving funding administered by the University or receiving other compensation from the University, and to all graduate students and post-doctoral fellows at the University. I agree to abide by its provisions.
Name (Please print or type)___________________________________________________
Date_____________________________________________________________________
Signature_________________________________________________________________
University ID Number_______________________________________________________
Prepared to comply with 17 CFR 401.14
KENT BALES, Chair
FACULTY AFFAIRS COMMITTEE
LEONARD KUHI, Chair
RESEARCH COMMITTEE
DISCUSSION:
Professor Len Kuhi, chair of the Research Committee, said that after discussion at an earlier meeting, this policy was being brought back for action. Since earlier Faculty Senate discussions, it has been discussed at meetings of the Research Committee and the Faculty Affairs Committee, by the General Counsel's Office, and by the drafting committee. Many of the comments now being received pertain to the procedures, which will be worked on this fall by the drafting committee.
Professor Carol Chomsky discussed the major changes that have been made since the presentation at the last meeting. First was a question regarding student ownership in courses in the Architecture department; traditionally, students do not own this work product. A clause was added in Section 4 to this effect.
The second change related to someone engaging in an individual consulting agreement. A provision was added to Section 4 regarding this matter.
A change was also made in the provision regarding full ownership rights of regular academic work products. If the University requested a delay in publication to protect the work product, then the individual must observe this delay. This language has been tightened.
The signed agreement was also simplified and shortened to a single paragraph.
The last change related to the University's claim to the use of teaching materials in Section 4.4. The proposed language was said to be a sweeping statement covering any materials used in a class. Therefore, new language was drafted and the paragraph has been changed to read, "Use of Teaching Materials. In order to facilitate joint work on teaching materials and support collaborative teaching, and notwithstanding the ownership rights otherwise granted by this policy, individuals who contribute teaching materials used in jointly developed and taught University courses thereby grant a nonexclusive, nontransferable license to the University to permit other contributors to the course to continue using those jointly produced teaching materials in University courses."
The floor was then opened for questions.
Q: Section 4.3 deals with the rights to publish and the University's right to delay publication. What is the definition of 'brief delay'? What happens if the creator does not agree?
A: Regarding the definition of brief, it is a period long enough to permit the University to file for protection of the intellectual property. This could be further defined in the procedures. In terms of sanctions, this policy does not specify any. Violations would fall under other discipline policies already established by the University.
Q: Section 5 deals with distribution of income. The policy states that 8% goes to the creator's college and 25 1/3 goes to the department to support the creator's research. Why is there not a set amount for the creator's department for discretionary use? Would the department need to negotiate with the dean to receive a portion of the 8%?
A: This division has been in place for so long that there was no discussion about the amounts during the drafting meetings. The 25 1/3 does go to the department but to assist in additional research. The Vice President of Research has the authority to make changes in this division, depending on circumstances. Departments would need to talk to their deans about receiving a portion of the 8%.
Q: What happens to funds if a person moves between colleges?
A: If there are changes in a faculty member's home college, the decision is at the discretion of the Vice President for Research, in consultation with the deans and the Research Committee.
Q: Do people need to sign this form?
A: Yes, if they are asked to by the University.
Q: Is there a sunset on signing this statement?
A: There is no sunset. The statement is to fulfill federal regulations. The procedures will deal with changes to the policy and notifying people who have already signed the statement.
Q: What happens to money after a person retires?
A: That money would still belong to the creator of the intellectual property.
Q: Is it correct that a person does not have an obligation to reveal intellectual property until it is patentable?
A: This is correct. There might even be some limitations placed in the procedures regarding disclosure responsibilities.
Q: If the University pays someone to commission a work, who owns it?
A: There is a definition of specially commissioned works early in the policy.
Q: In Section 4.2.b the language states that for intellectual property assigned by an external contract, the University has the right to give away the intellectual property rights, including the income, to an external agency without the agreement or notification of the creator. Can this be corrected?
A: This item will need to be addressed in the procedures.
With no further question, a vote was taken and the motion was unanimously approved. The drafting committee was then given a round of applause.
APPROVED
The Report of the Joint Committee on Academic Appointments can be found in the April 22, 1999, Faculty Senate minutes (http://www1.umn.edu/usenate/faculty_senate/990422fac.html). A revised version will also be made available at the meeting.
KENT BALES, Chair
JOINT COMMITTEE ON
ACADEMIC APPOINTMENTS
DISCUSSION:
Professor Kent Bales, chair of the Academic Appointments Subcommittee, distributed a handout detailing the agenda and composition of the recently formed working group which will be meeting during the next six months. This group will work on the details and have a report ready by late fall or early winter. He asked that any further questions or comments be forwarded to him for consideration.
The floor was then opened for questions.
Q: Why is there no Morris representative on the working group?
A: Executive Vice President Bruininks appointed the members, not the Senate. Professor Sara Evans, chair of the Faculty Consultative Committee (FCC), will discuss adding a Morris representative with Dr. Bruininks.
Q: Is it possible for groups to talk with the working group before a document is finalized?
A: The group has not met yet, or decided what testimony it will hear. The Academic Appointments Subcommittee is still in existence and is a forum to hear concerns and bring them to the working group.
NONE
VIII. OLD BUSINESS
NONE
IX. NEW BUSINESS
NONE
X. ADJOURNMENT
The meeting was adjourned at 4:00 p.m.
Rebecca Hippert
Abstractor