Re: [Google Group CCCSenates] Query Regarding Tenure Review, Academic Senate...

[Stev...@aol.com]

I want to back up and offer a response to Tom's original question, which was this:

If the senate reviews a tenure recommendation, and the faculty member under consideration is a member of the senate, should/can the faculty member be excluded from the closed session?

 

Assuming the closed session itself is legal, and I believe it would be, I doubt there is any clear-cut answer to Tom's question from a legal standpoint.  However, I would advise NOT excluding the faculty member.

 

Several of us have already said that we don't think the process is a good one, and I think you run a greater risk of exposing the senate to a lawsuit if you exclude the faculty member from the discussion.  Certainly, if a favorable recommendation of the tenure review committee is reversed, without the faculty member present, it will raise questions about the process itself and the reasons for the reversal.  Speculation about the REAL reasons for the decision will run wild, and faith in the process will be damaged or destroyed. 

 

So I recommend that the faculty member be allowed to be present, even if he or she is NOT a member of the senate, so that he or she can hear the arguments presented and offer rebuttals.  I'd also strongly recommend that the faculty member have a union grievance rep present. 

 

On the other hand, if you truly believe the senate's approval is necessary and proper, excluding the faculty member will obviously have the effect of encouraging an open and honest discussion, and those brave enough to argue against granting tenure are less likely to end up being sued.

 

I am assuming the senate has the power to make the final determination about the recommendation that is made to the Board or its representative.  If the senate's concurrence or dissent is just an attachment to the committee's recommendation, it might make the process more defensible and lessen the likelihood of a lawsuit, but not by much.

 

Steve Gold

Senator Emeritus (yeah, it's official!)

Cypress College

[David Morse]

I agree with the previous comments by Steve and others that the tenure review process at Tom's college should be revised.  I think Steve's analysis in an earlier message outlined very clearly some of the reasons that this should not be a senate decision.

However, I am also going to assume that revising the process would take as long at Tom's college as it would everywhere I have worked.  Such a change is rarely made overnight.  In the meantime, Tom's senate obviously has an immediate issue to deal with concerning a tenure review that is happening now, so "revise your process," while perhaps the best overall answer, is not useful at the moment.

Therefore, regarding the immediate issue, I would not only advise against excluding the faculty member in question, but I would also advise against having the closed session at all.  According to what the judge said in our lawsuit, such a closed session would be a violation of the Brown Act.  For your own safety, I would suggest having the discussion in the open this year and getting an immediate start on revising the process for the future.

David Morse

Long Beach City College

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[Wheeler]

Colleagues,

There are no Brown Act police, so testing the BA is a bit like testing
man-made diamonds. You smack it with a hammer and if it shatters, that
was the real one. With the BA you smack it with a judge and if you
were wrong you do not pass go and other bad things happen.

So BA decisions are always really an act of risk assessment. In this
case because of now existing case law in the Long Beach case it is
highly likely that a judge would rule that academic senates do not
exist to hire or fire employees, thus the risk of being drawn into a
suit and losing because of doing this, particularly in a closed
session is very high. (There are two arguments that could backfire: Is
the closed session legal particularly in a committee of the whole, and
does the senate exist to serve in this capacity.)

Our college and district has a negotiated professional development and
tenure review process. It is separate from the senate, has various
levels to include individual review committees, then the college
review committee, then senior administration, then confirmation by the
Board, and an appeal process. Most levels have faculty members
appointed by the candidate or the Senate Pres. All are legally BA
closed sessions because they are formally the district's evaluation
process. Operational process for these bodies is defined in our
contract, our college governance handbook, and Board policy.

The first level is the candidate, a faculty peer, the dept chair, and
the dean. This has several meetings - one with, one without, and then
one with the candidate.

This recommendation goes to the campus prof dev/tenure review
committee. This group has one Admin and faculty members from each
instructional school(division) and student services and a faculty
review coordinator and does not include the candidate. The admin
departs during the tenure evals, but in part their role in prof. dev.
and tenure evals. is to assure accurate record keeping and timeliness.
This committee's role is really just to confirm process has been
followed properly, and if not to document why. (the professional
development evals are about moving across the pay scale and have
nothing to do with FLEX/Staff Development)

The VPs and Pres then consider this, and I believe the recommendations
then go to Board closed session. (I tend to avoid that interstellar
gravitational hole of high density matter known as our District
Central Office at all costs because my inter-cranial squirrels are
convinced it has a deep dungeon cell with my name on it)

Appeals are handled directly by the chancellor who convenes a college
president from one of the other colleges, and the senate presidents
from all of the colleges, all of whom up to this point have not been
involved in the process. (This is one of the many reasons we keep the
senate out of the process)

I offer this because this process does work, and is likely to survive
legal challenges since it has already.

I won't offer actual language because you really need to hammer out
operational details that match your local structures and existing
policies. Also note that the above process is just one, it is less
important than assuring the critical elements it contains do happen.

e.g. confidentiality, due process, reasonable timeliness, accurate
records, fair and adequate representation, legal compliance,
separation of appeal processes, etc.

Wheeler