Minutes

Richard Goldstein (chair), Avner Ben-Ner, Daniel Feeney, John Fossum, Darwin Hendel, Joan Howland, Robert Jones, Cleon Melsa, James Perry, Wade Savage, George Seltzer, Tom Walsh, Sheila Warness

Carole Bland, Carol Carrier, Robert Fahnhorst, Dwight Purdy

Josef Altholz, Larry Miller, Theodore Oegema, Carol Wells, Lisa Wersal

none

Professor Goldstein convened the meeting at 3:07 and reviewed the dates of the remaining meetings for the year; he cautioned that it may be necessary to schedule an extra meeting as well as one in the summer.

Professor Goldstein then turned to Professor Walsh to lead a discussion of electronic privacy policy and the policy that has been adopted by Penn State. Professor Walsh distributed a handout and began by asking what the charter is; is there to be a policy proposed to the Faculty Senate? Professor Goldstein said that was the original idea, and noted at the same time that there are a number of privacy policies already in place (such as with regard to use of student names, employee information, and so on).

(The Penn State policy reads as follows:

From Professor Walsh's handout: "Who is involved? Faculty, the administration, and outside agents. What was privacy, once upon a time? Papers, effects, person, legal and phone conversations." The latter are not private in companies, Professor Goldstein said; when he worked at a company his calls were monitored and he was told not to make personal calls. Professor Walsh noted that Minnesota law also allows one party to a conversation to record it (although not a third party); there are privacy questions that arise in connection with business and state law but he said he did not look into those. Other elements of privacy included "medical, financial, legal--was bilateral with doctor, etc."

"What's changed? Loss of bilateral confidentiality (that may be a thing of the past), Permanency of data (it is no longer evanescent), Nexus of stored data everywhere (this is getting more serious and it is growing exponentially; there is no basis for deciding how much data should be stored or used), External control of personal data (concern about this came out of the former East Germany when it was discovered that 1/3 of the population was on the payroll of the Stasi, the secret police), the Marketplace for data." Professor Walsh said these thoughts reminded him of the phrase "glaserne mensch": the transparent person.

The issues are these, Professor Walsh said: fast technology change and the situation will get more extreme; particular solutions of low relevance or importance, and institutions are more the problem (government, corporate--the FBI, credit reporting agencies) than other individuals. He said that he has never been contacted by the University about the information it has in its databases, but added that the University is a fairly benign environment. Does it sell information from its databases? There was talk about doing so at one time, he recalled.

It might be useful to develop a policy, Professor Walsh said, but before doing so there is need for a set of principles to deal with situations that cannot now be envisaged. He offered two such principles:

Professor Seltzer asked if the federal government is the problem; Professor Walsh said private companies are seen as more problematic.

Does one have access to one's personnel records, Professor Goldstein asked? Yes, Professor Walsh said; he repeated that it would be useful if the University were to contact employees with the information it has about them.

Professor Seltzer inquired how the general issue arose. Professor Walsh said it was because of the collection and sale of medical and personal information by organizations. Is there a concern about this at the University, Professor Seltzer then asked? There is not, Professor Walsh responded.

Professor Goldstein said there are issues outside the University that the Committee cannot deal with (e.g., FBI records one might obtain under the Freedom of Information Act); for these purposes, he said, he sees two privacy issues. One is personnel records: what does the University have and what might be wrong? The other is access to email and Internet use: can anyone trace all messages?

There are questions about the status of email, Professor Walsh said. In his view there should be no central server to maintain email; all messages should be pushed on to the local computer and the person should own them. If the University owns the computer on the desk, that does not mean it owns the data or information ON the computer. The Penn State policy could be modified and adopted for the University.

Professor Savage said he thought the Penn State policy was "not very tight" because the phrases in the policy could be used to justify almost anything. The intent was good but the phrases were vague if the policy is intended to have legal or quasi-legal status. Professor Walsh replied that this policy seemed to be the best of several that they looked at. Why not adopt the two principles he suggested, Professor Savage asked? Professor Walsh said he also liked them but that a policy could also be adopted.

Are emails really deleted when they are deleted, Professor Goldstein asked? They are not, Professor Howland said, and they are "discoverable" (in the legal sense of the term) on a computer hard drive. In the University, however, there is an expectation of privacy; that is a defense that someone could use in a legal proceeding. If a dean looks at someone's email without a reason, one has a defense. What if the dean is doing something to protect the University, Professor Savage asked? If there is a valid reason, the dean can look at the email, Professor Howland said. The decision should not be up to the dean, Professor Goldstein said. He or she would have gone through the General Counsel's office after complaints were registered (e.g., for harassment), Professor Howland said. If data are being sought with a subpoena there is the implication that a serious crime has been committed, Professor Walsh observed.

If something is deleted from a server is it gone, Professor Goldstein asked? It is not, Professor Savage said, and under the Penn State provisions, if a University officer thought something inappropriate were occurring, he or she could look into it under the exceptions provisions of the policy. Criminal activity trumps privacy, Professor Howland pointed out.

Should there be more than just an expectation of privacy, Professor Goldstein asked? There could be if the regents agree, Professor Walsh said. This is a complicated matter, he said, which is why it would be a good reason to develop principles to guide a policy.

Does an employer have the right to intervene if an employee is playing games on the computer, Professor Seltzer asked? It is possible invisibly to intercept keystrokes and send the information elsewhere, Professor Walsh said, so it is possible that gameplaying or email could be tracked. He said he did not know if the University did so. Or is it authorized at the University but not done, Professor Goldstein asked? Professor Seltzer looked at Dr. Jones.

Dr. Jones said that to the best of his knowledge the University does not collect such information; he has better things to do with his time, he commented. The only instances where information has been obtained from a computer (and not since he has been in the Provost's office) were in denial of promotion and tenure cases; attorneys seized information on hard drives under court order. (The computers of all those involved in reviewing files, including the central administrators, were sought because the attorneys wanted to know if something was said that was not in the files that everyone saw.) Some drives were also seized (in a criminal case) by the FBI in his department, Professor Walsh recalled, because they had been subverted by an outsider and used to prevent tracking back messages that had been sent. It is usually only in response to a court order that anyone's computer is subject to investigation, Dr. Jones said. These examples, Professor Savage said, are not what the concern is; these are understandable.

There are two issues at hand, Professor Ben-Ner said. One is data privacy in the traditional sense; one has the impression that it is governed by state and federal laws. The second is about who has access to electronic communication and files. He said he knows that occasionally college technology officers peek into communications; the Committee should focus on establishing limits on who has the right to access and on informing faculty and administrators that email messages are kept on computer hard drives and can be opened up to a third party. One problem with the last is that the third parties also gain access to unrelated information.

Professor Goldstein agreed that people should be informed about what has been opened to outsiders in the past. He also recalled a time when a department server administrator checked on people ("you're using the computer for games; you're not supposed to be doing that"). Professor Walsh knew of a similar occurrence; the server administrator acknowledged that he learned a lot about the private lives of graduate students. People need to know about this, Professor Goldstein emphasized, and such monitoring should be kept to a minimum.

Professor Hendel agreed it is necessary to have a good set of principles; the Committee cannot deal with details. It is also important that something be prepared that describes accurately the current situation; that is not well-understood by most. In terms of the first of Professor Walsh's principles ("Principle of Evanescence of Data": don't gather them if not absolutely necessary; erase them soon or anonymize them, otherwise the next principle applies), he said he did not know whether data can be erased once it has served its function or if that happens (for example, health care reimbursement account information). At the state level there has been a task force working on issues of data privacy for several years; its work is being followed by the General Counsel's office.

Ms. Berning asked if faculty should not send personal emails on a personal account, rather than their University account. She noted that many students use a hotmail.com or yahoo.com account for personal matters. Professor Ben-Ner pointed out that University policy explicitly permits University employees personal use of their University email accounts. Professor Walsh speculated that the commercial email providers have filters on email traffic and use the information they collect for commercial purposes.

Professor Goldstein summarized by saying that the Committee should get basic principles "down pat" and as much as possible it should be expected that individual privacy will be protected; after that the possible exceptions can be considered and a required process established for someone to use in claiming an exception. University employees would be the only ones in the economy who would have that kind of protection, Professor Seltzer observed; that is why he works at a university, Professor Goldstein responded.

It was agreed that Professor Goldstein would develop a road map on how to proceed with these issues.

Professor Fossum reported that the Benefits Subcommittee will have a proposal for the permanent policy ready at the April 24 meeting. He said he would appreciate suggestions for changes from the current interim policy.

Professor Goldstein said he assumed that the original recommendation from the Committee, which went through Human Resources but which was then rejected by the deans, would not be revived. But would it be possible to add more money to the pool for leaves?

Dr. Jones said he thought that might be a possibility. At present the amount provided is 25% of base salary with a cap of $20,000. The number of participants has increased since the pool of funds was increased, which has meant broader participation. It would be possible to tweak the structure of the salary supplement. The biggest concern is about using the money properly; it is difficult to defend large carry-over amounts.

Do the colleges object to supplying one-third of the funds, Professor Goldstein asked? Not at all, Dr. Jones said; it was the deans' idea to do so, because it expands the pool of funds by one-third. There is $1 million in recurring funds committed from the administration; there has been a carry-over, so the amount available at present is about $1.25 million in central funds; the colleges add one-third to that amount. This is only for full-year sabbaticals, he confirmed; single-semester leaves are not subsidized.

Professor Goldstein turned to Ms. Warness to lead another discussion of the faculty mortgage program.

Ms. Warness recalled that the last time she met with the Committee about the faculty mortgage program she said it appeared that the program had outrun its useful life, given the assumptions that were in place when it began. Either a new source of funds is needed or the program needs to be changed.

The Committee expressed an interest in knowing how much the program had been used in retention and recruitment; she provided a list of dates of when people had been hired and when they were provided a mortgage through the program. For the last three years there were 335 mortgages; they averaged $162,000. One can look at the hire/mortgage dates and see where it appears that the program was or was not used for recruitment. The Committee considered the data. Professor Savage said it appears that the program is being used mainly for recruitment. Ms. Warness agreed; it seems that about one-third of the mortgages are for new hires.

Professor Fossum noted that one must regularly qualify for a mortgage before being eligible for the faculty mortgage program, so there is no advantage in that regard. Is there an advantage because of a slightly lower interest rate? Ms. Warness said they aim for a 1/2 to 1% lower rate. When the program began, and interest rates were 13%, they could usually deliver a mortgage at 1% lower; with lower rates, the margin is closer to 1/2%.

Professor Goldstein reported that he had used the program and at the time he was neither a recruitment or retention case. It is a nice perk, he said, and one feels that the people running it are reasonable so one doesn't have to go searching all over for a good mortgage.

How does the program cost the University money, Professor Goldstein asked? Ms. Warness explained that the University assigns an interest rate about 1/2% below the prevailing rate. Mortgage companies issue the mortgage and then sells it to Fannie Mae, for example; since the rate is below the market, the sale price to Fannie Mae is lower so the mortgage company receives a lower return. The University makes up the difference.

At what cost, Professor Goldstein inquired? About $433,000 last fiscal year, Ms. Warness said. So about $4000 per home, if there are about 135 users per year. The benefit is about $800 per year, Professor Fossum calculated, which probably does not have a significant effect on recruitment. If there is a recruitment effect, it may be for helping young faculty buy homes. Another possibility might be a program to share in equity, something done by several of the West Coast schools. There is no reason for a subsidy if the University can share in the appreciation of the equity and the subsidy here is trivial, Professor Fossum concluded.

What is the cost of administering the mortgage program, Professor Ben-Ner asked? She has not tracked the cost but it is negligible, Ms. Warness said; her office sets the rate and there is one person in Human Resources who determines if applicants qualify.

The University could consider sharing in equity, Ms. Warness said, but it would be a huge commitment. The way the original program was set up it was a win-win and there was no cost to the University; one of the investment pools was in fixed income securities and the mortgage program allowed it to pick up yield. That investment pool is gone so the funding comes out of the income from investment pools that is normally distributed to departments; the money spent on the mortgage program is money not given to academic units. The issue is whether to find an alternative source of funds or to set up a different program.

Professor Savage said he believed the University should have something in place, at the least a structure to help faculty get loans, even if they are not at a better rate. The University needs as many recruiting tools as it can get. He said he would recommend finding an alternative source of funds and keep data to learn if the program is working as intended.

What about a signing bonus, Professor Walsh asked? The University already provides that in set-ups, Professor Goldstein said.

Does the University have special relationships with any banks that might nibble on a Request for Proposals to provide a lower mortgage rate because of the lower risk associated with University faculty, Professor Feeney asked? Ms. Warness said the banks would like to get the University involved with their relocation programs but will not offer a lower mortgage rate at their expense. So there is no benefit to the lower risk presented by University faculty, Dr. Jones observed.

It is possible to shop around and find rates that are lower than that offered by the University mortgage program, Dr. Jones pointed out. So it would be cheaper to have someone on the University staff (and not as a full-time position) to help people find good mortgage rates than to pay out $433,000 in subsidies, Professor Goldstein said. Such help could be combined with relocation (which the University already offers) into a more coherent benefit package, Dr. Jones agreed.

Ms. Warness agreed to look into the option of providing expert staff assistance on mortgages. The Committee concluded it would not advise University participation in a shared equity program because there is no guarantee that real estate values will continue to increase.

Professor Goldstein told the Committee that he and Professor Fossum had talked about modifying the original tuition remission proposal so that instead of 100% remission for children of employees after the employee had worked at the University for a certain period, perhaps 50% remission could be offered. The Committee should try to get SOMETHING set up because there has been tremendous interest in the proposal. He related that he received more emails on this subject than on anything else he has ever dealt with on the Committee.

Professor Goldstein next drew the attention of Committee members to three new issues that had been referred from the Faculty Consultative Committee to the Tenure Subcommittee; he brought them to the Committee today for preliminary discussion before forwarding them to the Subcommittee. He noted that there is a new chair of the Tenure Subcommittee, Professor William Garrard from Aerospace Engineering and Mechanics.

Professor Goldstein observed that Committee members may have seen the news articles about the report to the Regents on post-tenure review. He was at the meeting when the report was made; the Regents were VERY interested in the subject. He said that the Committee should see the data.

Dr. Jones reported that 58% of units, covering 38% of the tenured faculty, conducted post-tenure reviews last year. The goal is that all post-tenure review documents will be approved and all faculty will go through post-tenure review except the contract faculty and the unionized faculty at Duluth (in the latter case, the post-tenure reviews start in 2001-02).

One percent of the faculty reviewed were found to be performing below standard, Dr. Jones said; of those, some have changed their activities, some are working to improve, and at least one has retired. Of the eight cases where someone thought performance was substandard, there were two cases where the department head and the faculty committee in the department did not agree but there was agreement in six cases. There is considerable anecdotal evidence that a number of faculty chose to retire rather than face post-tenure review. The point of the policy, however, is not to be punitive but rather to be helpful. The Tenure Subcommittee must stay involved in the process.

When he was asked to take responsibility for post-tenure reviews, Dr. Jones said, he decided he would not try to do so in isolation or on his own so he asked Vice President Carrier and Professor Dempsey (chair of the Tenure Subcommittee) to serve as a committee to review department documents; that committee will continue. He said there will also be a more extensive review of the 00-01 post-tenure review results (the report to the Regents was for 1999-00). He will also report to the Regents in 4-5 years on faculty and administrator perceptions of the policy.

Professor Goldstein said he thought the post-tenure review policy was necessary when there is no longer mandatory retirement; he said the process has worked well in his department. The Tenure Subcommittee should keep track of it, however, because there is the potential for abuse (although he said he did not believe it is being abused now). Professor Savage agreed that the policy should not be used as a substitute for mandatory retirement; not all who are past 70 become incompetent, although there may be a perception that that is the case, especially among younger faculty who are eager to prove their worth and displace older faculty. This policy could be abused. He added that he believed there should be a maximum retirement age; given that there is not, it would be a grievous abuse to use post-tenure review to force faculty to retire.

The policy is being used to show the opposite, Professor Goldstein commented--that older faculty are active. Dr. Jones agreed and said the reviews show that faculty go through different stages in their careers. He said the policy cannot be used to get rid of a faculty member for cause; it would take five or more years to do so using the provisions of post-tenure review, which would be a MOST inefficient way to remove someone. The person would probably die of natural causes before the process ended, he added.

Professor Feeney related that there was a group appointed during the tenure debate apart from the AAUP and faculty governance that dealt with getting the proposed new code adopted. The greater concern in that group was not age but rather the term "deadwood." There are people below normal retirement age who are not as productive as they should be and there are people beyond normal retirement age who are as or more productive than many. Dr. Jones agreed that post-tenure reviews are a human resources development tool--not a way to get rid of "deadwood" but to breathe life back into it.

Other tenure-related issues referred from FCC included investigation timelines (when allegations of misconduct are made, there seem to be no timelines on investigations so they can drag out too long), the role of the department head/chair in the tenure decision/promotion process (the expectation, and the language of the tenure code, seems to be that the chair/head is an advocate), and the procedural requirements for promotion from associate to full professor.

Professor Savage said he knew of at least a limited number of cases where the promotion from associate to full professor was treated virtually the same as the tenure decision and where the research requirements for full professor needed to be met. He said he did not know how widespread the problem is and that requirements may vary from field to field. There seem to be, for example, higher publication requirements in the social sciences in CLA than in Philosophy. The requirements for promotion to full professor may be higher than they should be, although he said he believed the requirements for promotion to full professor requires more than what one does to become an associate professor.

The question of papers versus books varies widely, Professor Goldstein commented; the concern is how much effort is required to go from associate to full compared with the effort required to go from assistant to associate professor NO MATTER THE FIELD. In one case, one of the criteria for promotion to full professor included having an international reputation, which he agreed was a high but reasonable bar. Some faculty were never promoted to full professor--that is not good for the individual, and may be a mark against a department, but it presumably reflects the judgment of the faculty in the department.

When it was noted that the question was raised about the PROCEDURE, not the standards, Committee members generally did not believe that the process could be very different from what it is. Professor Goldstein said that this is linked to post-tenure review. When 1% of the faculty were reported not to have met standards, the media might say that the standards must not be rigorous enough; that is not correct--because there is a rigorous process used to promote people from assistant to associate professor and from associate to full professor. If that process is changed there could be an effect on quality. The Committee agreed to forward the issue to the Tenure Subcommittee but there was considerable skepticism expressed about whether it would be wise to change the procedures required for promotion from associate to full professor.

Professor Feeney reported that the final meeting with carriers of University retirement plan options had been held and that the Retirement Subcommittee would be reviewing their recommendations.

Professor Goldstein urged that the Subcommittee also discuss with the Benefits Subcommittee the issue of the waiting period before faculty are covered by the retirement plan.

Professor Goldstein asked that Dr. Jones find out for the Committee the payroll periods for those on A and B appointments. He said he would.

Professor Goldstein then adjourned the meeting at 4:50.

-- Gary Engstrand

University of Minnesota