FacEx - Faculty Senate Executive Committee 10/07/14
II. Approval of minutes from September 23, 2014
III. Report of Faculty Senate President Jim Carothers
IV. Faculty Code of Rights, Responsibilities, and Conduct
V. Old Business
VI. New Business
Faculty Senate Executive Committee – FacEx
October 7, 2014 – 3:00 p.m.
Provost Conference Room
Approved October 28, 2014
MEMBERS PRESENT: Jim Carothers, Jonathan Mayhew, Tom Beisecker, Mike Williams, Katherine Clark, Lisa Friis, Jeremy Martin
ALSO PRESENT: Mohamed El-Hodiri, AAUP; Amy Smith, Policy Office; Kathleen Levy, University Governance
Faculty Senate President and FacEx Chair Jim Carothers called the meeting to order.
FacEx approved the minutes from September 23, 2014.
REPORT OF FACULTY SENATE PRESIDENT – Carothers noted that he already reported on the BOR meeting in SenEx. He announced that the Faculty Senate meeting on October 9 has been cancelled. Carothers will stay after the University Senate meeting to talk with faculty about the Faculty Code of Rights, Responsibilities, and Conduct. Carothers is putting together a document that outlines the remaining Faculty Code issues. Carothers asked Mayhew to report on their meeting with the Chancellor. Mayhew reported that the major topic was sexual assault. The Chancellor will address University Senate on this topic at Thursday’s University Senate meeting.
FACULTY CODE OF RIGHTS, RESPONSIBILITIES, AND CONDUCT (Faculty Code) – FacEx began a discussion of Carother’s July memo to Vice Provost Mary Lee Hummert and Acting Vice Provost Marta Caminero-Santangelo with administration’s annotations. (The annotated memo is included at the end of the minutes.)
FacEx began by discussing the four issues identified last year by FacEx that affect a number of Faculty Code provisions. Carothers noted that the most important issue was administration’s deletion of academic freedom language. He noted that the language has been restored.
Last year’s FacEx was concerned that administration’s version contained language that made the Faculty Code subordinate to other university policies. Carothers noted that the current administration version includes, at the end of Article I, the sentence “Substantive changes to this Code will be made only after consideration by the Provost’s Office and Faculty Governance.” In Carothers’ opinion, this addition alleviates any concern.
FacEx next discussed “fair” versus “nondiscriminatory.” Administration does not include a statement about fair treatment in its version of the Faculty Code, and there are a number of instances where administration has replaced “fair” with “nondiscriminatory.” FacEx members do not see these concepts as interchangeable, and view “nondiscriminatory” as a lower bar than “fair.” They also agree with administration that “fair” does not have a universally agreed upon definition. FacEx decided that, for the time being, “nondiscriminatory” should be put in brackets until a better word is found. It was suggested that an employment lawyer be consulted regarding the precise words to use in the Faculty Code, and that AAUP guidelines might be useful.
FacEx next discussed duplicative language. Administration prefers to not include language from other policies in the Faculty Code because it is duplicative. Administration would prefer to cross-reference or provide electronic links to other policies. In Carothers’ opinion, the inclusion of electronic links incorporates these other policies into the Faculty Code. Friis stated that her interpretation was the opposite. If the language is not included in the Faculty Code but only linked electronically, the language can be changed and would result in changes to the Faculty Code possibly with no notice. Carothers does not see this as a problem because he believes that administration is working in good faith. Beisecker noted that there are two levels of concern—conceptual and implementation—and FacEx needs to identify and address them separately.
FacEx next moved to discussing possible issues in specific provisions.
Definitions – 7.1.2(3) – Administration clarified that the change in language merely updates the provision and the coverage is the same.
Rights – 188.8.131.52 – It is not clear whether “right to request a hearing” is a step back from rights faculty currently have regarding hearings. FacEx will come back to this section.
184.108.40.206, 220.127.116.11, 18.104.22.168 – FacEx will come back to these sections also.
22.214.171.124 – Clark questioned whether this section presents a problem for Engineering faculty. Friis indicated that it is not a problem. It was noted that, before accepting administration’s version of this right, colleagues in fields where it may be particularly important should be consulted.
126.96.36.199 (administration draft #13) – FacEx members identified no problems with this section.
188.8.131.52 (administration draft #14) – FacEx members would like to consider this section further with more information about what is in the BOR policies.
184.108.40.206 – No specific issues were raised with administration’s response.
Responsibilities – (At this point, the discussion focused on administration’s most recent proposed version of the Faculty Code which appears on the Governance website at http://governance.ku.edu/sites/governance.ku.edu/files/docs/FacCode20140902CleanInTemplate.pdf) Carothers noted that the section on teaching (Article IV Section 1) was rewritten by Caminero-Santangelo. Carothers believes that the new description is a good update of the current Faculty Code. He further noted that Section 1(e) can lead to serious sanctions so extra specificity is important. A possible issue with the last phrase in Article IV Section 3(a) was identified. Members felt that this phrase (“to refrain from activities that disrupt the operation of the unit”) is misplaced and fits better in Section 5.
No further business. The meeting was adjourned.
July 11, 2014
To: Mary Lee Hummert, Interim Vice Chancellor for Research and Graduate Studies
Marta Caminero-Santangelo, Acting Vice Provost for Faculty Development
From: Jim Carothers, Faculty Senate President
FacEx spent considerable time at meetings in December 2013 and throughout the spring semester 2014 going through the Faculty Code of Rights, Responsibilities, and Conduct (Faculty Code) section by section. FacEx worked from a color-coded document prepared by Julie Petr and Kathy Suprenant that compares the current Faculty Code, the version approved by Faculty Senate, and the administration version. Copies are attached. The section numbers below generally refer to the Faculty Senate version and appear on the left in the document prepared by Petr and Suprenant.
As you review these recommendations and responses, please feel free to call on me at any time if I can help with any aspect of this important project. I very much hope that we can reach prompt, collegial agreement on a set of recommendations that Faculty Senate can approve, as we did last fall on the post-tenure review policy. As our discussions proceeded last spring, it became apparent that many faculty members felt that the administration’s drafts of new language, particularly concerning faculty responsibilities, seemed to be creating “crimes and punishments.” FacEx believes that the language of the final version of the Faculty Code should reflect the tone of a collegial process.
This memo is divided into four parts. The first part deals with academic freedom language. The second part deals with three issues that arose in a number of places in the Faculty Code—university policy, fair treatment, and duplicative provisions. The third part deals with issues in specific provisions on which FacEx has specific recommendations. The fourth part covers provisions that FacEx discussed but on which FacEx did not reach consensus as to a recommendation.
I. Academic Freedom
The first important issue for faculty is the deletion by administration of “academic freedom” in 220.127.116.11. This language is very important to faculty especially since the BOR saw fit to include an academic freedom statement in its social media policy. FacEx recommends that the academic freedom language be restored to 18.104.22.168.
Solution: Academic freedom reference has been restored in Article III, Right 1 (3.1).
II. University Policy, Fair Treatment, and Duplicative Provisions
Three major issues arose in a number of places in the Code. First, in the administration revision of 7.1.1, the Code is subject to “University policy.” Amy Smith clarified that university policies are “owned” by the unit that creates the policy, and currently there is no requirement that stakeholder groups be included in policy development. This means that policies that impact the Faculty Code could be created without Governance involvement.
Solution: Added such language and placed it prominently at the beginning of the document – last sentence in Article I.
In effect, the Faculty Code would be subordinate to all other university policies. FacEx would like clarification as to whether this is administration’s intent.
Response: The Faculty Code itself is a university policy. Additionally, all policies must be harmonized. Faculty Code cannot contravene other university policies and other university policies cannot contravene the Faculty Code. If policies are being developed that conflict with existing policies, that conflict must be resolved before the new policy is finalized.
This issue also shows up in 7.1.3 and 22.214.171.124. In 126.96.36.199, administration has added the phrase “subject to University and Board of Regents policies on facilities use.” FacEx is satisfied that the reference to University policy is acceptable here because it is limited by the phrase “on facilities use.” 188.8.131.52 contains a reference to University policies that is also limited to specific types of policies. (In 184.108.40.206, FacEx would like to retain “only” which has been deleted in administration’s version.)
Solution: “Only” has been retained in Article III, Right 8 (3.8).
In 220.127.116.11, University policy could be similarly limited by eliminating the phrase “policy, including but not limited to.”
Solution: The phrase “but not limited to” has been removed from Article III, Right 10 (3.10).
Second, the administration version does not include a statement about fair treatment, and there are a number of instances where administration has replaced “fair” with “nondiscriminatory.” FacEx members do not see these concepts as interchangeable. “Fair” goes beyond “nondiscrimination” and “nondiscrimination” is a low bar. FacEx asks that administration strike III.2 and include the language that was suggested by Faculty Senate that administration omitted from III.4. Fair treatment language has also been deleted from 18.104.22.168 and 22.214.171.124.
Response: We agree that “fair” and “nondiscriminatory” are not interchangeable. Nondiscrimination is concrete and definable. Fair is a concept that does not have a universally agreed upon definition or benchmark; it is ambiguous and amorphous. By way of example, not all faculty members at KU are compensated at the same levels. Salaries are based, in part, on market value.
Third, there are a number of provisions that have been deleted in administration’s version because they are duplicative. FacEx recognizes that while some duplication is unnecessary, it is also desirable in many cases especially with regard to particularly important and complex provisions. It is our hope that, at the end of this process, we will achieve a comprehensive revision of the Faculty Code that will be efficiently internally cross-referenced.
Response: This is an important goal to keep in mind. Reference to relevant policies is preferred to duplication of policy language.
III. Recommendations for Specific Provisions
FacEx also identified issues and made recommendations concerning specific provisions. This section of the memo is organized by provision and groups provisions into the following categories: request clarification, accept administration’s version, accept administration’s version with modifications, and retain Faculty Senate version.
A. 7.1.2 Definitions
In 7.1.2(3), the Faculty Senate version retains the current definition of “faculty member” while the administration version makes changes to this section. It is not clear whether these changes constitute a substantive change. FacEx would like to request clarification as to who would be lost and whether the language added by administration is meant to cover all who are currently covered by the policy.
Response: The revisions made to this section are not substantive; rather they seek to clarify the definition of a faculty member by reference to employee groups. These clarifications encompass the same employee groups as defined in the current Faculty Code.
B. 7.1.3 Rights
In considering rights, FacEx generally takes the position that the Code should be about basic principles.
Consensus favoring administration’s version
126.96.36.199 – The Faculty Senate version and administration’s version seem to speak to different issues. The Faculty Senate version deals with a right to be informed about files that concern issues involving particular people. The administration version has deleted this language and substituted a statement regarding confidentiality of personnel files. FacEx concluded that the Faculty Senate version is too broad to be enforceable. The consensus was to delete this provision except for administration’s language regarding confidentiality of personnel files. It is duplicative but it makes FacEx’s case that there is no harm and a possible advantage in duplication.
– This section is essentially the same in both versions.
188.8.131.52 – The main issue is a “right to a hearing” versus an “opportunity to request a hearing.” Currently, FSRR provides a right to request a hearing, so the Faculty Senate version would create a new right. The consensus was to accept administration’s version of this provision but FacEx would like to request that administration consider the addition of a reference about contacting the Governance Office for information.
Solution: Would recommend adding “The Office of University Governance can provide further information.” This sentence has been added to Article III, Right 7 (3.7).
184.108.40.206 – The consensus was to accept administration’s version. The reference to University policy is acceptable because it is limited.
220.127.116.11 – FacEx accepts deleting this provision because this right would open the university to major data breaches, and it would difficult to write a provision on this topic that is not problematic. Further, the Code should be about basic principles.
18.104.22.168, 15, 16 – FacEx members noted that these provisions are not rights. These items call for funding, and are not enforceable. It was suggested that perhaps these items could be pursued as goals, but not as rights in the Faculty Code.
Consensus on modified version
22.214.171.124 and 126.96.36.199 –The Faculty Senate version provides for a “right to participate” versus the administration version which provides for a “right to provide information/input”. FacEx consensus is to support the administration’s version but suggests changing the first line from “may provide information to assist” to “have the right to provide information to assist.”
Solution: The phrase “may provide information to assist” has been replaced with “have the right to provide information to assist” in Article III, Right 4 (3.4).
188.8.131.52 – The consensus was to accept administration’s version but with these changes: (1) keep “only”; and (2) add at the end “and other relevant policies.” These additions would make it clear that limits must be for a policy reason.
Solution: “Only” has been retained and “and other relevant policies” has been added to the end of Article III, Right 8 (3.8).
<184.108.40.206 – The words “have the right to” in Faculty Senate’s version have been changed to “may” in administration’s version. Because faculty members currently have the right to engage in a limited amount of outside work, and there is adequate protection for the university in the policies and regulations, the consensus was to accept the administration’s version but with the change from “may” to “have the right to.”
Solution: Rephrased as “have the right to request approval to engage” in Article III, Right 12 (3.12). The rationale is that faculty may request to engage in outside work via the consulting request form. These forms are reviewed and the request is either approved or denied.
220.127.116.11 – FacEx members noted that, in the current Faculty Code, evaluation is under responsibilities and under sanctions but not mentioned as a right. They also noted that the administration’s version changed “department/college/school” to “University.” The consensus was to accept administration’s version except the change to “University.” FacEx members preferred “department/college/school.”
<Response: The recommended phrasing as a university policy is accurate. The main policy for annual evaluations is the university’s Faculty Evaluation Policy for tenure-track and tenured faculty members. The university policy states that “each unit will adopt by a vote of the faculty a modified process of annual evaluation.”
Consensus favoring Faculty Senate version
18.104.22.168 (Paragraph I, listed as Article III.14 in administration’s version) – FacEx noted that, under administration’s version, the reasons for removal of a faculty member could be expanded with changes in University policy. FacEx prefers to retain the Faculty Senate version because it is important to faculty to protect this right. If there is redundancy, it is acceptable because all or almost all information regarding this issue should be in the Faculty Code.
Solution: The sentence stating that the burden of proof rests with the university has been restored in Article III, Right 14 (3.14). However, in an effort to focus on general principles, the additional sentence developed by FRPR cannot be retained because there is a separate policy on termination of tenured faculty members.
22.214.171.124 – This provision dealing with retaliation for grievances has been deleted in the administration’s version as unnecessary because the issues are covered elsewhere. The consensus was that this provision should be retained.
Solution: We believe this comment is directed more at FRPR new right 22 than new right 21, but our response and solution addresses both. FRPR Right 21 references due process, a hearing, and peer judgment, all of which are addressed in an earlier right (See Right #7).
The intent of FRPR Right 22 has been restored with revised language: Faculty members have the right to utilize applicable grievance procedures without fear of retaliation.
C. 7.1.4 – Responsibilities
There are two particularly important issues in this section. First, FacEx spent a fair amount of time considering 126.96.36.199(c-d) which covers teaching duties. At first, members considered various modifications of the language in the section, but finally concluded that the current language and the changes in the administration’s version represent an older model of teaching. FacEx would favor a complete rewrite perhaps with the assistance of Ruth Ann Atchley. These sections are particularly important as they tie to administrative leave without pay. As with the Rights section, there were provisions on which there was consensus and provisions that FacEx has discussed but on which FacEx has not reached agreement.
Response: Marta Caminero-Santangelo has developed new language for this section that is simple, clear and gives room for units to develop specific responsibilities.
188.8.131.52 – FacEx members noted that the addition to the first sentence in administration’s version is positive because it recognizes unit expectations, the position held by the faculty member, and approved allocation of effort. However, the sentence added by administration to the end of the paragraph is problematic because it seems to contradict the first sentence. The provision needs to be clear because listed responsibilities could trigger sanctions. Members also noted that perhaps “the University’s stature as a major international research university” should be considered aspirational. As such, like the items in the rights section that are aspirational, it should not be in the Faculty Code. Consensus was to strike the sentence. The final sentence in the section is the same in both the Faculty Senate/FRPR version and the administration’s version.
Solution: Added “university and” before unit expectations in the first sentence and removed the last sentence in Article IV, Responsibility 4 (4.2).
Consensus favoring administration’s version
184.108.40.206(a) & (b) –FacEx members noted that the Faculty Senate version and administration’s version of (a) and (b) capture the same idea, but administration’s version is more straightforward.
220.127.116.11 – There are two areas where administration has changed the Faculty Senate version regarding professional performance. First, administration deleted the language “clearly outlined in the position description and communicated clearly to the faculty member.” FacEx had no objection to deleting the reference to the position description because jobs evolve and job descriptions are often not updated. The language “communicated clearly” is more problematic. However, members felt that the added language captures the idea. Members also discussed the change from “effectively” to “satisfactorily” in administration’s version. It was noted that use of the word “satisfactorily” is tied to annual evaluation language. Consensus was reached to accept “satisfactorily.”
Consensus on modified version
18.104.22.168(d) – The phrase “treat students with courtesy” is in all three versions, but FacEx members would prefer the phrase “treat students with professional courtesy.”
Solution: Add “professional” to the sentence in Article IV, Responsibility 1.d (4.1.d).
22.214.171.124(f/d) – Regarding furnishing false information, members noted that administration deleted the phrase “with intent to defraud.” As long as the word “knowingly” remains in the provision, members were willing to accept the deletion.
Consensus favoring Faculty Senate version
126.96.36.199(j/h) –FacEx members noted that administration’s changes in this section change the definition of moral turpitude. Both “intentional” and “illegal” conduct have been removed from the definition. Members also noted that administration’s version now includes but is “not limited to” acts of moral turpitude. The administration’s version does not define limits. Comment A33 states that broadening this provision will allow administration to take action at faculty members’ request in dealing with a colleague’s behavior that reflects poorly on the unit. It was questioned whether expanding the scope of this section was the best way to deal with such situations. Although administration’s version was drafted before the Guth situation, it is important to note that his behavior was outside of the provision in the current Faculty Code but within administration’s version. Consensus was reached that the Faculty Senate version (which tracks the current language) is preferable.
Response: The revised language drafted by administration was done so in consultation with the Office of General Counsel. This language tracks with the definition of moral turpitude as defined in Black’s Law Dictionary. The words “prohibited by law” or “illegal” are not part of the legal definition of moral turpitude.
IV. Provisions on which FacEx has not reached consensus
188.8.131.52 – FacEx noted that the addition of “electronic material” in administration’s version is a plus from a faculty rights perspective. FacEx discussed options. One option would be to add “electronic material” to the Faculty Senate version. A second option would be to adopt administration’s version but cut “including but not limited to policies” which would narrow it.
184.108.40.206 – FacEx considered whether to strike “best interests of the University” from administration’s version because it is not clear who defines “best interests.” It seems to give a lot of power to the University. FacEx also considered retaining the sentence “Faculty members are entitled to an academic environment free from violence or systematic disruption“ from the Faculty Senate version. FacEx noted that gun laws are a state matter.
220.127.116.11 – struck 13 – univ support and defense Steadham reported that the Tort Claims Act does apply and it does provide for representation. It covers activities on and off campus that are within the scope of employment. The question is whether this is sufficient or needs to be expanded.
18.104.22.168 (Part II, listed as Article III.15 in administration’s version) – FacEx members decided they needed more background information about compensation reduction. They decided to flag this provision and come back to it later. (These numbers may not track exactly. They refer to Petr and Suprenant’s version.)
22.214.171.124 – FacEx members noted that this provision about pursuing grievances seems to be duplicative of 126.96.36.199.
188.8.131.52 – FacEx members noted that this provision, which provides that the list of rights is not exhaustive, is good for faculty. However, it is not favored by university counsel. Steadham will investigate whether there is language that might satisfy both faculty and university counsel.
7.1.4 – FacEx members noted that this section begins with “non-exhaustive” language. In light of this disclaimer in the responsibilities section, the same language should be used in the rights section. Members further noted that the current Faculty Code, the Faculty Senate version, and the administration’s version are substantively similar.
184.108.40.206 (d)/(e) – FacEx noted that the language in the Faculty Senate version appears in the current Faculty Code but in a different location. In the current Faculty Code, failure to meet the responsibilities in this paragraph could result in administrative leave without pay. This section also needs a completely different approach to reflect current thinking about education. Members stressed the link between this section and Administrative Leave without Pay, and the possibility of enlisting an “expert” such as Ruth Ann Atchley to help draft new language. FacEx will revisit the section.
220.127.116.11 – FacEx members noted that in the current Faculty Code and the Faculty Senate version, faculty members “participate in the decision-making . . . “ whereas “decision-making” has been cut in the administration’s version. Members also noted that “ideally” and “typically” have been cut from administration’s version. The significance of these changes is not clear. FacEx will come back to this section. There were no issues with sections (b), (c), and (d) at present.
18.104.22.168(b) – Regarding student confidentiality, FacEx discussed whether the deletion of the phrase “to the maximum extent possible” was a positive or a negative from faculty perspective. There was no consensus on which version sets the higher standard. Possible alternative language “by taking reasonable steps to preserve the privacy” will be considered after members examine FERPA.
Article V. Administrative Leave Without Pay – (4/8/14) Administration’s new proposed language is not as broad as their original language but the provision includes more conduct than the provision in the current Faculty Code. Members agreed that there is a need to look into the possibility of further narrowing the provision.
7.1.5 – Steadham introduced discussion of this section dealing with sanctions by noting some of the differences in language and possible ramifications of these differences. He noted that written and verbal feedback are not considered sanctions in administration’s version. While the Faculty Senate version specifies that sanctions may be imposed only for failure to meet specified responsibilities, the administration’s version is not set up this way. He also noted that the restitution provision now includes “costs incurred by the University” with no indication as to how they are calculated or how far the provision reaches. The consensus was that FacEx needs more time to carefully consider this section.
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