Faculty Senate Privilege and Tenure Committee

Date: February 19, 2007 – Draft 2.1

 

Why P&T?

  1. P&T is the due process* vehicle for the CU System.
  2. P&T is the group that hears grievances based upon perceived violations of rights and privileges of Faculty Senate members**.
  3. P&T is the independent group to which a contemplated dismissal of tenured professor is sent for an evaluation of the charges***.

 

Thus, P&T is the university entity responsible for due process of proposed administration dismissals of tenured professors as well as grievances associated with perceived violation of rights and privileges.  P&T is not an advocate of either faculty or an arm of administration.  P&T stands between faculty and administration.  P&T is about hearing and evaluating the processes of the university that affect faculty as initiated by a grievance, disciplinary action, or an administrative notice of intent to dismiss.  Generally speaking, P&T evaluates the processes that are followed or not followed in administrative decisions.  P&T cannot and does not substitute its opinion on the merit of administrative decisions except for proposed dismissal (of a tenured faculty) and disciplinary actions such as suspensions without pay.  Only in these two cases are the merits of these actions debated and considered as part of P&T deliberations.

 

The P&T process is deliberate. P&T deals with cases of perceived violations of faculty rights and privileges across our four campuses and three universities.

 

Note: By the time a case has reached P&T it has typically gone through several efforts in trying to resolve the issues that are before the committee.  Thus, P&T deals with the hardest unresolved issues.

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* “Due process” is:

1. A fair hearing

2. The opportunity given Faculty Senate members to address accusations that are leveled against the member or that the member wishes to bring forward

** All members of the general faculty with the following titles whose appointments are 50% or more: professor, associate professor, assistant professor, senior instructor, instructor, scholar in residence, and artist in residence.  Adjunct, attendant, clinical, and research faculty with 50% or more appointments in the above ranks are also members.

*** Demonstrable incompetence, neglect of duty, insubordination, conviction of a felony or any offense involving moral turpitude up to a plea or verdict of guilty or following a plea of nolo contender, sexual harassment, or other conduct which falls below minimum standards of professional integrity.
 

Membership on P&T: Members are appointed by Faculty Assemblies where the process is governed by the bylaws of the particular assembly.  The nominations of members to P&T are sent to the executive committee of the Faculty Council.  The list of candidates approved by Faculty Council Executive Committee is forwarded to the full Faculty Council for a vote to officially confirm members.  The reappointment processes in three years is the same.

 

I.                   Structure of P&T

PANELS - P&T is composed of four panels at the moment.  The number of panels depends on the case load.  Currently, there are four panels. Panel 1 (Professor Phil Langer, chair), Panel 2 (Professor Lynda Dickson, chair), Panel 3 (Professor William Cherowitzo, chair), and Panel 4 (Professor Richard Dukes, chair).  At times, given that a grievant has the right to ask that a specific gender or ethnic composition be present (or other reasons – for example a deaf professor may ask for a deaf panel member), or if a special panel is convened for a dismissal for cause, members are reassigned.

A.     OFFICERS and the EXECUTIVE COMMITTEE – Chair, Weldon A. Lodwick UCDHSC-DDC, vice-chair, Phil Langer, UCB, and secretary, Adelina Gomez, UCCS, are the officers.  The executive committee consists of officers and the panel chairs.

B.     INVESTIGATIONS – There are at the moment three outside investigators (appointed by their respective faculty assemblies and approved by Faculty Council).  Outside investigators are typically retired faculty members who have worked on P&T.  Our current investigators are: (i) Roberta Flexar (retired - UCB), (ii) William Marine (retired - HSC), and (iii) William Waite (retired - UCB), and (iv) David Hubly (retired UCDHSC-DDC).  Every case that comes before P&T, with the exception of Dismissal for Cause orders that arise from the chancellor to P&T, is investigated.  Typically, one outside investigator is teamed up with a P&T member.  Thus an investigative team typically consists of two people.  In exception-ally complicated cases, there are three people on an investigative team.  An investigative team evaluates the claims of the grievance in light of what is presented in the grievances itself and corroborated by interviews and materials the team gathers.  For example, a faculty member may be grieving an action of the dean and may claim the dean had no right in taking that action.  The investigation may uncover that the dean was acting in accordance with the duties as specified by the position.  This conclusion might have required that the bylaws of the college as well as the laws of the regents be reviewed.  It may also require (usually does) an interview with the dean among others.  An investigative report usually contains recommendations that in the opinion of the investigators will resolve the issues brought forward.

C.     MEDIATIONS – P&T has available two professional mediators, free of charge, whose services may be used upon the agreement of both parties associated with a grievance.  Our mediators are Professor Emily Calhoun (UCB – Law School) and Barry Rumack, M.D. (HSC - retired).  Typically, mediation is the first option.  However, mediation can (and has) occurred at any point in the P&T process (described below).

 

II.                 A Typical Scenario – A written grievance from a Faculty Senate member is given to the chair of P&T outlining a perceived violation of a right or privilege.  The chair evaluates the grievance to insure that the grievance falls within the jurisdiction of P&T.  If it does, the chair assigns the case to a panel and assembles an investigative team to assess whether or not the evidence (as determined by what is presented and what is uncovered by the investigation) supports the claims of the grievances.  Interviews with the Faculty Senate member, administrators, and others, are typically conducted.  The investigative report assesses whether or not the evidence supports the grievant’s claim.  This report is forwarded to the panel in charge of the case.  The responsible panel reads the report, evaluates the investigators’ work, and recommended actions (recommendations) voting whether or not to accept the report.  If the recommendation of the panel is to close the case, the case is closed though a report closing the case is forwarded to the chair of P&T.  If the panel concludes that there are reasonable grounds for believing that a violation of the grievant’s rights, privileges, or tenure may have occurred and votes to forward the recommendations to the chancellor of the grievant’s campus, then it writes its report containing its findings and recommendations to the chair of P&T who forwards the report to the chancellor.

 

The chancellor must respond to report and address the recommendations with more than, “It’s in the best interest of the university.”  The chancellor’s response is forwarded to panel chair (who distributes it to the panel members) and the grievant through the P&T chair.  The grievant then lets the panel chair know whether or not the chancellor has addressed her/his grievance.  If yes, the case is closed.  If no, the panel must vote on whether they agree or not that the recommendations it forwarded have been addressed.  If yes, the case is closed regardless.  If no, it must also vote to recommend a Level 2 hearing.

 

A Level 2 hearing is convened when the panel agrees with the grievant that the recommendations it forwarded to the chancellor have not been sufficiently addressed.  The Level 2 Hearing panel must be different than the panel charged with evaluating the Level 1 Investigative report.  A Level 2 hearing may be informal (without lawyers) or formal (with lawyers).  Whether a hearing is formal or informal, is the same from the perspective of the panel members called to be on the Level 2 Hearing.  A Level 2 Hearing assesses the evidence presented by the grievant regarding the claims made.  The university has a chance to rebut and make its own case.  A Level 2 Hearing is an adversarial process whereas a Level 1 Investigation is a collegial problem-solving process.  The panel must evaluate the evidence presented by the faculty member (her/himself or via his/her lawyer), with the burden of proof resting upon the faculty member to prove his or her case by a “preponderance of the evidence.”  There are formal presentations of evidence (witnesses and exhibits).  The panel assesses the evidence and forwards its report to the parties.  The parties may respond to each of the recommendations in a substantive way within ten working days.  The responses from the parties are sent back to the P&T chair who directs them to the hearing officer (panel chair).  The panel may then modify its report if it chooses, and shall then transmit its final report and the record of the case to the P&T chair, who shall forward it to the chancellor.  The chancellor must then submit a formal response to the report within ten working days.  The panel votes on whether or not the chancellor’s responses in part or in full addressed the recommendations.  If yes, the case is closed.  If no, then a report is forwarded to the P&T chair for further consultation with the chancellor and/or transmission, along with the record of the case, to the president.  If the president successfully addresses the recommendation, the case is closed, if not the P&T chair may forward the case to the regents.  Whatever the regents decide closes the case.

 

III.               Duties of P&T members -  

First and foremost, all matters before P&T are personnel matters and therefore strict confidentiality is required of each member.  Confidentiality is the most important aspect/duty of the job.  If there is a conflict of interest (the grievant is known personally, the P&T member may have been involved in some way with the case, etc) or if there can be a perception of conflict of interest, a P&T member is obligated to tell the P&T chair so that a reassignment can be made. 

 

A.     Tasks assigned to panels

                                                           1.      Investigative Team Reports – an investigative team reviews a grievance and conducts a study of whether or not there is sufficient evidence to the claims of the grievant.  Typically, the investigative team makes recommendations that it sees will resolve the grievance.

                                                           2.      Level 1 Reports – the panel, to which a grievance is assigned, assesses the investigative report and writes its own report with recommendation (different in part or in total or not at all from that made by the investigative team).

                                                           3.      Level 2 Hearings – formal or informal hearings in which adversarial positions between the grievant and the administration are taken after the recommendations the Level 1 report have not, in the assessment of the Level 1 panel, addressed the recommendations made.  The hearing panel is charged with evaluating the evidence presented and coming up with its conclusions and recommendations based on its assessment of the evidence presented.  A Level 2 panel is different than the Level 1 panel and the Level 1 report is NOT made available to the Level 2 panel.

                                                           4.      Special assignments – contemplated Dismissal for Cause.  When the chancellor (or president) issues a Notice of Intent to Dismiss order to a tenured faculty, the faculty member may appeal to P&T for a hearing.  This hearing has its own rules (see the list of reading materials indicated below). A Dismissal for Cause Hearing differs from a Level 2 hearing in two respects.  Firstly, a dismissal hearing goes directly from issuance of notice of intent to dismiss to the hearing itself – there is no investigation.  Secondly, for a dismissal, the university must prove via the evidence it presents to the “clear and convincing” standard (more than “preponderance of evidence” but less than “beyond reasonable doubt”) that there are grounds for dismissal under the Laws of the Regents.  The faculty member has the chance to rebut the evidence.  P&T members of the special hearing panel judge the evidence and come up with their findings, conclusions, and recommendations based on the evidence presented.

B.     Tasks assigned to panel members

                                                           1.      Investigations and investigative reports

                                                           2.      Level 1, 2 evaluation and reports

                                                           3.      Reassignments and special assignments to dismissal panels

                                                           4.      Attending of semi-annual meetings

IV.              What you should read between now and December 18, 2006

A.     Regents Policy 5-H: Faculty Senate Grievance Process (download it from http://www.cusys.edu/regents/Policies/Policy5H.htm)

B.     Regents Policy 5-I: Faculty Dismissal for Cause Process (download it from http://www.cusys.edu/regents/Policies/Policy5I.htm)

C.     Bylaws of the Faculty Senate of the University of Colorado (download it from (download it from http://www.cu.edu/FacultyCouncil/documents/bylaws.html ) and click on P&T.

D.     Faculty Senate Constitution (download it from http://www.colorado.edu/FacultyCouncil/const.html)

E.      Laws of the Regents Article 5: Faculty, Part A: Definitions and Titles (download it from http://www.cusys.edu/regents/Laws/Article5A.htm)  Part E: Faculty Government (download it from http://www.cusys.edu/regents/Laws/Article5E.htm)

V.                 Differences between P&T, other faculty committees, and court proceedings ( adopted from Margaret Topf – former P&T chair)

One way to avoid procedural errors in our investigations is to be aware of our unique procedures compared to other faculty committees.  Moreover, although P&T, at times, involves legal counsel and other legal attributes, there are differences between our procedures and court cases. 

Firstly, P&T investigates and rules on personnel matters.  This means that our proceedings are closed and confidential except as required by law.  Only P&T members, P&T personnel (P&T administrative assistant), P&T attorney, P&T outside investigators, and P&T mediators attend meetings.  Confidentiality is primary.  Minutes are not circulated and available to anyone except the parties and P&T panels that are working on the cases.  Records and reports are not circulated and made available to the public except as required by law (subpoenaed for example).  Without confidentiality, due process is compromised.

University faculty committee meetings typically follow Robert’s Rules involving member votes on decisions.  While P&T panel members vote on investigation reports, they follow regent approved standards and procedural rules during Level 1 and 2 investigations.  This means that panels ordinarily do not vote when there is a regent provision for a specific action to be taken or not taken.  In some instances panels vote to waive a regent approved grievance procedure given the committee chair is consulted before this action is taken.  The committee chair, of course, would check with P&T counsel.

P&T investigates faculty complaints regarding denial of promotion, denial of tenure, and non-reappointment.  This occurs after campus review committees and administration have made decisions.  P&T differs from campus review committees because unlike campus review committees, P&T does not evaluate merit of the faculty contributions to the University teaching, research, and service missions.  It focuses on the question of whether the involved promotion and tenure review groups followed published University procedures in their evaluation.  If the grievance is about an action or inaction of an administrator perceived to be violating the faculty member’s rights and/or privilege, the focus is on whether the administrator followed published University procedures rather than merit.  However, P&T may (must) consider merit in disciplinary and dismissal cases.

P&T is often thought of as having a judicial component.  This is because our Level 2 hearings and Dismissal for Cause hearings are in fact, quasi-judicial.  However, P&T has no subpoena power nor are witnesses that testify before P&T required to give statements under oath.  Trial lawyers may request a delay of court dates to prepare themselves.  P&T panel chairs set hearing dates based on times that panel members are available (for example at the beginning or end of a semester is typical).  Panel chairs respect that most lawyers may have full calendars for a 2-month period before a hearing when setting a hearing date.  However, once a hearing date is set, even though University and outside lawyers may agree on a delay, we have a 90 day regent deadline to complete our hearings.