Faculty Senate Minutes
April 3, 2000
Present: Suzanne Holland, Michele Birnbaum, Keith Ward, Doug Edwards, Terry Cooney, Elma Nahm,
Chris Kline, Bryan Mello, Connie Hale, Heather Bruce, William Haltom (Chair), Hans Ostrom (scribe of the
day).
Minutes of the Feb. 21st 2000 meeting: M/S/P.
Minutes of the Mar 6 2000 meeting: M/S/P.
Haltom announced that Ryan Mello was now officially a member of the Faculty Senate. He is ASUPS
President.
Old Business
Reporting on business from the last meeting, Haltom advised senators that he intended to send Connie
Hale's report on instructors to three standing committees (Academic Standards, Faculty Advancement
Committee, and the Faculty Salary Committee) and invite them to consider it. If the committees choose
not to take action on the report, Haltom noted, then the Faculty Senate may act. Haltom suggested that
this method of handling the Hale report observes the propriety of Senate/Committee relations. Holland
moved acceptance of Haltom's strategy. Ward seconded. Edwards suggested that the Senate give
Committees a deadline. Ward pointed to the minutes of March 6 and noted that Haltom and Hale were to
set priorities. Haltom and Hale agreed that sending a cover letter, with ranked items, to the committees
was a good idea. Cooney moved that a vote on Haltom's strategy be postponed for two weeks.
M/S/P.
Special Orders
Ostrom used his one minute of Special Orders time to distribute a "Proposed Change to the Faculty
Code" (attached). He said he hoped the Senate would take up the proposal at an upcoming meeting and
noted that the main effect of the change would be to open evaluation files to faculty members being
evaluated even in cases of tenure-decisions.
Mello used his one minute to distribute a letter regarding the proposed change to the academic calendar.
He summarized the letter by suggesting that the student body was firmly opposed to shortening
Orientation Week. He observed that students "like Orientation as it stands," believe it is a "great
program," and think that it "really does work" in its present form. He also noted that students did not want
Reading Period to be changed.
Haltom announced that Bob Steiner, Chair of LMAC, is happy to discuss concerns raised in the Senate
about the Office of Information Systems. Haltom noted that Steiner prefers to discuss the concerns in the
context of LMAC's upcoming report to the Senate.
Faculty-Code Revisions
Haltom explained that it was not self-evident to him where the Senate, faculty, and Board of Trustees
were in the process of revising the Code. He briefly recounted the recent history of "Code discussions"
and referred senators to a packet he had prepared for them, which included a letter from President Pierce
(10/7/96), a memo from Pierce (1/12/200), and written communication from the Board of Trustees.
Haltom noted that because the Faculty Code outlines a process for revising the Code, the Senate ought
to observe that process.
A lengthy discussion of this process-Chapter 1, part E, section 1 (p. 5) of the Code-ensued. This
discussion dovetailed with one concerning the trustees' proposed amendment, which stipulates that a
"final determination of any grievance or appeal, as set forth in the Faculty Code, shall not provide the
basis for a legal claim or private right of action and may not be challenged in any court proceeding."
Edwards argued that the process seemed to point to the appointment of conference committees
representing the faculty and the trustees
Kline suggested that the Faculty may want to consult with a lawyer, who might help the faculty determine
possible consequences of the trustees' amendment regarding legal claims. Birnbaum suggested that
hiring a lawyer might appear too precipitous and adversarial. She noted that it was in everyone's
interests to protect the University from frivolous law-suits. Haltom suggested that the legal system was
adversarial by design, that the Trustees had no doubt consulted an attorney when they drafted the
"Response," and that, moreover, they were correct to do so. In his view, the trustees had acted "utterly
responsibly" in consulting a lawyer with regard to amendments to the Code.
Cooney reported that the University's attorney had indeed drafted the response. He suggested that,
rather than focusing on the substance of the Trustees' response, the Senate might want to discuss how to
instruct a conference committee, if one were appointed. Ward said he believed contacting a lawyer and
appointing a conference committee were both premature. He advised more informal proceedings. Other
senators wondered whether the University lawyer could represent the faculty. Haltom said no-because,
professionally and ethically, the University's lawyer was obligated to represent the interests of the
trustees, not those of the faculty. He argued that the faculty would be foolish not to retain its own lawyer
and that individual faculty members would have to be "dunned" to pay for such counsel. He noted that
an option would be to consult members of the faculty who have earned law degrees, namely Curt Melhoff
and Keith Edwards said the latter option might be preferable because it would appear less combative.
Kline suggested that seeking legal counsel might be informative without seeming combative.
Ostrom agreed but said he had questions regarding the "Response to the Faculty's Proposed
Amendments to the Faculty Code from the Board of Trustees/ Fall 1999." He said he did not agree with
the premise that a clearer Faculty Code would lead to a greater number of technical violations. He noted
that recent legal actions taken by faculty members against the University did not appear to spring from
technical violations and that the trustees' assertion that "technical violations of Code procedures have
become the basis for legal challenges to evaluation decisions in recent years" was therefore debatable.
Ostrom wondered whether a conference committee representing the faculty could be effective because
he had not spoken to a single faculty member who regarded the trustees' amendment (regarding legal
claims) as acceptable. Was there, he wondered, anything to negotiate?
Ward suggested that both appointing a conference committee and pursuing informal negotiations were
preferable to seeking legal counsel, which seemed to him to be premature. Holland wondered whether
the faculty might want to seek legal counsel and appoint a conference committee at the same time.
Haltom transferred presiding authority to Heather Bruce for the remainder of the meeting.
The discussion veered back to the substance of the trustee's amendment regarding legal claims. Haltom
suggested that "any faculty member who consents to the amendment would have to have a two-digit I.Q."
He said that although the trustees offered the amendment ostensibly to "fend off" legal action based on
minor Code-violations, he could not think of any case in which alleged infractions were "technical" and/or
"minor." He cited the Ziegler, Kalikoff, Law School, and Neal actions as examples but said he was bound
by the Faculty Code not to discuss any details of the Neal case.
Ward said that he had wanted to focus strictly on the procedure for discussing amendments to the Code,
not on the substance of the trustees' amendment, about which (he reminded senators) he had made no
comment. Haltom agreed that Ward's comments had focused on procedure, not on substance. Haltom
went on to point out that the contracts faculty members receive each year are only "one page" and that,
therefore, the Faculty Code represents the bulk of the faculty's contract with the University. He said that
the trustees' amendment would allow the trustees not to abide by that contract because any violation
could be defined as "technical" and "minor."
Edwards said that his response to the substance of the amendment was "much the same" as Haltom's
but that he assumed the trustees were merely "floating" a very extreme position in order to begin
negotiations. In a long process of negotiation, he noted, it was not unusual for one party to begin by
floating the most "absurd" position. Cooney urged the Senate to be hesitant in thinking of the
amendment as a "float." He suggested that the Senate might want to discuss what seems to be behind
the language of the amendment and to propose alternative language of its own.
After further discussion, senators determined that they could not be sure about how to proceed
(according to the Code) until they were sure about the nature of the Trustees' "Response". That is,
considered in light of the Code, were the Trustees the recipients of amendments initiated by the faculty,
or were they the initiators of an amendment?
Senators informally instructed Senate Chair Haltom to meet with President Pierce to discuss the nature of
the Trustees' "Response."
Adjournment happened.
Respectfully submitted,
Hans Ostrom
***
Hans Ostrom
Faculty Senate
April 3, 2000
Proposed Change to the Faculty Code
The language of the Faculty Code is as follows:
[Chapter Three, Section Nine (part e.), page 17]
e. All materials in the faculty member's file shall be open to the Advancement Committee, the
dean, the president, and the Board of Trustees. It shall be open to the faculty member involved,
except when the purpose of the evaluation is to grant or deny tenure.
Proposed Change
The proposed change to the Faculty Code is to replace the language quoted above with the following
Italicized language and with deletions as indicated:
e. All materials in the faculty member's file shall be open to the Advancement Committee, the
dean, the president, [delete and] the Board of Trustees [delete period (.) and add comma (,) here]
and the faculty member involved.
Language deleted, in addition to and: It shall be open to and except when the purpose of the evaluation is
to grant or deny tenure.
Result of Proposed Change
If the above proposed change to the Faculty Code were adopted, the Code would read as follows:
e. All materials in the faculty member's file shall be open to the Advancement Committee, the
dean, the president, the Board of Trustees, and the faculty member involved.
Effects of Proposed Change
The effect of the proposed change would be that all files of faculty members being evaluated would be
open to those faculty members, even in cases of evaluation for tenure. Another effect would be to
eliminate a potentially confusing use of the pronoun "it".