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.
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.
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