Disclaimer: The board of the Davis Faculty Association has prepared the following article solely to bring to the faculty’s attention a Yolo County Superior Court decision that has gone unreported to date, and to obtain credible reactions thereto. The DFA has no stake or interest whatsoever in the ultimate outcome of the underlying individual grievance claim.
Has the Davis Committee on Privilege and Tenure Been Appropriately Safeguarding Faculty Members’ Rights?
One of the objectives which all the UC Faculty Associations have in common is “the protection of the privileges and responsibilities traditionally reserved to the faculty for the purpose of maintaining and improving the academic quality of the University.” In this context it can be argued that with regard to their impact on individual faculty members, the two most important Standing Committees of the Academic Senate are the Committee on Academic Personnel (CAP) and the Committee on Privilege and Tenure (P&T).
Prompted in part, we think, by the DFA having distributed data which showed that for more than a decade Davis’s faculty salaries ranked among the lowest in the system, the Executive Committee of the Division appointed a Special Committee to review and recommend changes in (mainly) CAP’s practices and perspectives.
Because P&T conducts the bulk of its business in strict confidence and reports its activities to the representative Assembly in carefully chosen language, it has been nearly impossible to tell whether that Committee has been dealing fairly and appropriately with faculty grievants. That situation changed abruptly last August, when a faculty member who believed that his case had been mishandled by the Investigative Subcommittee of P&T (the ISC) sought and obtained judicial relief in the Yolo County Superior Court. (The Davis campus “umbrella” P&T functions via two virtually non-interacting Subcommittees: Investigative and Hearings. Cases normally reach the latter only by referral from the former.)
The legal case is in the public record so the brief description of it offered below breaches no confidences, but the court-ordered hearing of the grievance by the Hearings Subcommittee of P&T has yet to occur so the matter will be discussed in fairly general terms.
In December of 1999 the faculty member in question went to P&T charging that his department chair had improperly impeded the conduct of his research program. The then-applicable Bylaws of the Academic Senate, both local and systemwide, required that as its first order of business P&T had to determine whether a grievant had made out a prima facie case that one or more of his/her privileges MAY HAVE BEEN violated. (Not a particularly high bar). If the committee made a negative determination they were required to notify the grievant to that effect, and the matter would end there. If they determined that a prima facie case HAD BEEN made, they were required to attempt to promote a settlement of the controversy. If no settlement could be reached, a formal hearing was required. It should be noted that the Bylaws make no provision for an on-campus appeal of a negative determination.
In mid-July of 2000, after several months of sporadic activity and without having made a determination one way or the other, the ISC notified the campus ADMINISTRATION that the grievance at issue had been filed and that conflicting and incomplete evidence was making their task very difficult. In that letter they also recommended to the Vice Provost that the faculty member and the department be encouraged to engage in “mediation.” At that point they told the faculty member only that they had “completed their review of the case” and had forwarded their recommendations to the Vice Provost. In September the Vice Provost wrote to the faculty member asking if he would be willing to participate in a mediation effort arranged through the campus Mediation Services organization headed by Larry Hoover.
The faculty member declined the Vice Provost’s offer of mediation and asked for the matter to proceed to a hearing. In January of 2001, after several more unsuccessful attempts by the ISC to effect mediation, the committee chair formally notified the grievant of their final determination that he had NOT made out a prima facie case and hence the grievance could not be referred to the Hearings Subcommittee.
Through his attorney, the faculty member informed the committee that as he read the applicable Bylaws, their having involved the Vice Provost in the case before they communicated anything at all about it to him constituted a de facto determination that a prima facie case existed, and he was therefore entitled to an evidentiary hearing of his grievance.
The committee never responded to that letter, so in due course a lawsuit was filed in Woodland seeking a writ of mandate ordering the University to give the faculty member a hearing. The case was defended by a staff attorney from the General Counsel of the Regents, who argued, among other things, that a P&T committee’s decision re the establishment of a prima facie case is a discretionary act not subject to review under the California Code of Civil Procedure. The Superior Court Judge disagreed, and ruled that the committee’s actions constituted an abuse of discretion because they were holding the grievant to a standard of proof beyond their charge under the applicable Bylaws. He granted the writ and ordered that a full evidentiary hearing in the case be held within 90 days.
In one of his “declarations” in the case, made under penalty of perjury, the then-sitting Chair of P&T wrote: “The Davis P&T Committee’s practice is to attempt to promote an amicable resolution of a dispute at any point in the proceedings if the Investigative Subcommittee BELIEVES that an informal resolution would be appropriate and beneficial to the grievant AND TO THE ADMINISTRATION (emphases added). This has been the practice of the Davis P&T Committee since I became a member in 1996.” According to the Senate Bylaws, however, the committee could not proceed in that vein without first having determined that a prima facie case existed. This case clearly shows that in at least this one instance, the mindset and actions of the ISC of P&T violated rather than protected the rights and privileges of a faculty member. Unfortunately for all concerned, taking them to court was (and may still be) the only available avenue to challenge that committee’s behavior.
At the moment the faculty have no way to know whether what is being reported here is an aberration in an otherwise satisfactory environment, or the first public airing of a systemic problem. Accordingly, we encourage any readers who have had dealings with P&T in recent years to categorize them qualitatively in an e-mail message to the DFA at the address above. In your response please use terminology such as “rewarding, excellent, acceptable, sensitive, insensitive, frustrating, unsatisfactory,” etc. Please do not include your name or any identifying elements of your case in the body of the text. In recognition of the confidentiality of the P&T process, our staff will print out (but not read) each message, cut off and shred the header block, and then delete the message from the e-mail server. Faculty members will see and review only the complete file of anonymous responses. (Please make sure that you do not put a boilerplate signature block on your reply.)
We are seeking only lasting impressions of how well our respondents’ experiences matched their expectations of how cases would be handled. If we get a reasonable number of responses to this request we will summarize them in a follow-up article and forward the results to the Division Chair and the Executive Council.
Such information could turn out to be critically important to the faculty at large because in September of 2001 a new set of systemwide Bylaws governing P&T committees took effect. The changes are sweeping and may allow (but do not require) various administrators more opportunities to participate in grievance cases than did the ones they supersede. It also permits “any party” to attempt the informal “negotiated resolution” of a grievance case at any time, and provides for its resolution by mediation under stipulated conditions.
This legislation has gone largely unnoticed by most faculty members, but to its credit the Divisional Committee on Faculty Welfare (then chaired by a member of the law faculty) was very critical of the massive scale of the changes being proposed. Their comments were transmitted too late to have an effect on the systemwide legislation per se, but there is still some room for navigation locally because the permissive nature of some of the changes means that for good cause, and by appropriate means, e.g. via the Representative Assembly, the faculty can oversee and to some extent endorse or refute the practices of its divisional P&T committee.
In order to do that, of course, the faculty needs to know with some clarity just how the committee has been performing. We invite your response.