MINUTES OF THE EXECUTIVE COMMITTEE

OF THE FACULTY SENATE

Monday, January 23, 2012 

Mason Hall D1, 2:00 – 3:30 p.m.

 

Present:  Star Muir, Peter Pober, Earle Reybold, Jim Sanford, Suzanne Scott, Suzanne Slayden, Peter Stearns, June Tangney

Visitor:  Jeff Pugh, Classroom Support Technologies

 

I.  Approval of Minutes of November 28, 2011:  The minutes were approved as distributed.

 

II.  Announcements

Chair Pober welcomed Suzanne Scott to the Executive Committee; it is wonderful to have her with us. Dean  Reeder (CVPA) and Dean Chandhoke (COS) will offer brief remarks at the next Faculty Senate meeting February 1, 2012.  The FS/AAUP Reception for the BOV will take place this Wednesday, January 25, 2012; 3:30 p.m in the Mason Hall first floor Atrium.  A Special Faculty Senate Meeting to consider proposed changes to the Faculty Handbook will take place February 15, 2012. 

 

Bob Johnston, Chair of the Academic Initiatives Committee, emailed Chair Pober earlier today:  “The AIC decided this morning to develop a recommendation to the faculty senate endorsing the Songdo campus initiative subject to some concerns being resolved…We are scheduled to meet again on Monday, February 6th to review/edit the draft recommendation.”

 

ITU proposal for electronic voting system – Jeff Pugh, Classroom Technologies, demonstrated an automatic voting system with capacity for 32 responses.  Each clicker has a unique and anonymous display number.  Votes can be instantly tabulated and displayed using bar graphs.   Motions/amendments can be loaded in advance and ready to go.  Answers may be yes or no, or multiple choice options.  32 is the maximum number of transmitters we have, they are no longer available for purchase.    In response to questions from the committee, Jeff confirmed that there is no way to register an abstention using a yes or no vote, but could identify as a multiple choice option.  Nothing appears for those who choose not to vote.  The committee will discuss this further and bring it back to the Senate.

 

 

III.  Progress reports, business, and agenda items from Senate Standing Committees

A.    Academic Policies –  Suzanne Scott

We received a message from APAC about study elsewhere and changes to catalog.  We will wait to bring up as an agenda item; can just say we are working on it.  Star Muir, Chair of O&O explained how O&O tracks specific issues, using spreadsheet to keep everyone in the loop. 

 

B.     Budget and Resources – June Tangney

The final report on the Summer Salary Inquiry was distributed (Attachment A).  It will be included on the next Faculty Senate meeting agenda.  From final paragraph of report  “At a subsequent meeting between the Chair of the Budget and Resources Committee and relevant members of the Provost’s staff (Cathy Evans and Renate Guilford), it was decided that each year in September, the Provost staff would work with the Chair of the Faculty Senate and the Provost to send out a call to faculty for requests for summer teaching, to be submitted to the Chair, Director, or Dean (depending on the unit).  In October, Chairs and Directors will submit to their Associate Deans a course schedule (without a budget).  Associate Deans will then communicate with the summer term office regarding funding required to cover courses with adequate enrollment.”

 

We are also working on faculty salary data, not yet posted.  There are variances beyond standard raises, complicated due to VRS salary increases.  This past year, there will be increases for some faculty which go into VRS system.  HR has been very careful about protecting faculty privacy regarding retirement plan.  After a long discussion betwee  Gil Hodges, Linda Harber, and June Tangney, agreement to write “other” in the variance column.  There could also be other  “others”. 

 

Chair Pober noted that Linda Harber announced at President’s Council meeting given changes to VRS there will be option to change to ORP.  June added that ORP may not exist in time. 

 

The Committee is working on survey to chairs/deans/directors on independent study issue.  107,000 credits earned over four years.  How is it considered in faculty evaluations? We are just getting responses back..  Money does not go back to departmen; need for  faculty acknowledgement for work to be considered as part of teaching load.   In CEHD, such work does count as mentoring points, etc.

 

Chair Pober reported that there is a proposal for a  3% bonus for December 2012 in which each institution required to have 2X the bonus amount in the bank to report it – this equals $9M for GMU.  (Sr. Vice President) Morrie Scherrens says no insitution in Virginia could do this; efforts underway to rewrite legislation. 

 

C.  Faculty Matters – Jim Sanford

Updates (if any):  Maternity/Paternity Leave: Issues under consideration include proposal to have semester off upon birth/adoption of a child and how to address multiple children?  We will continue to work on this at our meeting Wednesday. 

New:  Intervals between Leave Programs for Tenured Faculty (FH 3.6.2). 

Discussion:  The Handbook Committee will propose changes in the wording to be consistent with other wording, and need to present to Roger Stough and the Research Council.  Concern expressed about Faculty Handbook revision timing as the Provost leaves (2013).  We have momentum on our side, now in the time to get this stuff in. 

 

D.  Nominations – Suzanne Slayden

Dan Joyce nominated to replace John Farina on O&O for the spring term. 

Discussion:  When someone goes on leave, to replace person permanently on a committee or just during time of leave?  To ask new Senator to serve on same committee?  O&O to draft statement about this. 

 
E.  Organization and Operations – Star Muir

Faculty Senators Spring 2012:  Susan Allen Nan to replace Susan Hirsch as S-CAR Senator. CHSS election results pending to replace Janette Muir for remainder of her Senate term (Spring 2012-AY 12-13); and for John Farina for Spring 2012 only while he is on leave.

Maggie Daniels (CEHD) resigned as Faculty Senator; replacement needed for remainder of her term (Spring 2012-AY 12-13), CEHD response pending.

 

Update:  Guns on Campus:  Star distributed a report of his conversation with Tom Moncure, University Counsel.  Excerpts include:

“The critical issue is applicability of gun policies to outside people (not members of the GMU community).  By contract, for members of the Mason community, guns are banned on campus (employment agreements, enrollment agreements).  

 

Cannot ban guns on campus by the general public:

·         Regulation adopted by the Commonwealth of Virginia allows gun restrictions for buildings and for events, but cannot prevent concealed carrying by the general public in public areas. 

·         Most educational institutions ban faculty, employees, and students from carrying weapons on campus, but cannot ban by the general public.

·         Regulation was upheld by the Virginia Supreme Court last January.

 

The regulation, within the Administrative Code for Virginia, was adopted by the BOV.  University Policy 1120 Weapons on Campus was drafted by University Counsel at the direction of the BOV, and adopted January 23, 2007.”

 

Michael Lynch, Chief of Police, says his association opposes any weapons on campus.  Based on Virginia regulations and judicial interpretation, we cannot regulate general public except to say you cannot go into a building or attend an event (with a weapon).  Star added that he does not see what point is to take this up by Faculty Senate.  At Commonwealth of VA level, Faculty Senate cannot tweak or change this in any way.   Is VA Tech taking any action to get the law changed?  Seung Cho was a student. Linda Harber (VP, Human Resources/Payroll) does a lot of coordinating with other institutions, suggestion made to explore joint effort at that level.

 

Expectation of Privacy in Computing:  Star distributed a 3 page email discussion about the lack of privacy in computing.  It included input from Joy Hughes (CIO) in response to questions raised by the Technology Policy Committee.   The Technology Policy Committee wishes to rearrange paragraphs in current policy statement to emphasize that the University respects faculty/staff privacy …but indicating legal restraints that University cannot protect privacy of faculty/staff communications in all situations.  There are various situations where we have to have confidential student records (FERPA) et al, but the University can go into our emails.  There is a lot of concern. 

 

A discussion about the confidentiality of research records ensued. If legal issues arise, who determines whether your emails/data given over to be read?  The issue of privacy in research really resonates. The Faculty Matters Committee will also consider this policy in terms of confidentiality of research data/subjects conducted using university equipment/emails.  Some faculty and students use their own laptops/non-GMU email accounts to protect privacy of data/research subjects. (A laptop committee will soon issue a report).  There are also questions about why hard copy mail is protected with specific requirements/procedures before opening but e-mail is not, about whether FERPA protected student information could be inappropriately accessed by reviewing e-mails, and about what safeguards and procedures are in place to provide prior notice and equity protection when accessing e-mails.

 

University Policies:  New policy to review before decides whether to propose new committee to address free speech and ethics issues. A few years ago Tom Moncure hired Barry Stevens to get faculty input.  There was huge faculty input into research policies developed at that time.  A major overhaul is now going on.  No Faculty Senate group is responsible for monitoring this, catch-as-catch-can.  With the involvement of the Senate chair on the President’s Council as one way to get faculty input; need for vigilance.

 

IV.  Other Committees/Faculty Representatives

·         Academic Initiatives Committee Report Fall 2011 distributed at meeting, will be included on Faculty Senate Meeting agenda

 

V.  Agenda Items for February 1, 2012

 

VI.             New Business, Updates, and Discussion

 

 

Proposal for Special Called Meeting on the outcome of the Presidential Search Process – Attachments C and D

Late last night we received a call for a special meeting about the Presidential Search process from a group of Senators; email distributed to Executive Committee members for input today.  Are there additional items for the Special Meeting agenda to take place February 8th?  We will send an announcement today, noting that the agenda will be distributed on February 1st.  Discussion/suggestions from the Executive Committee included:

·         Inclusion of specific Faculty Handbook text (Section 1.2.5) regarding presidential searches

·         June Tangney and Linda Monson gave a solid presntation at the December 7th meeting; discussion bears repeating,.

·         The Senators who requested the meeting did not wish to include representatives from University Counsel because it is not a legal discussion.  Brian Walther would not represent the university being sued; adding that his presence would stifle debate. 

·         The BOV has the right to set aside and change elements of the Faculty Handbook.  Some EXC members see need for counsel to explain what the binding nature of the Faculty Handbook is, suggested we invite University Counsel to ome to part of meeting, not to stay for the entire discussion.  

·         If the BOV can violate the Faculty Handbook, then what good is the Faculty Handbook?  If BOV violates it this time, they can violate it every time.  Others see the enforcement of the rest of the provisions still important.  Concern expressed about violations in future searches for the Provost/deans/directors.

·         Suggestion made to invite Lovey Hammel (Chair of the Presidential Search Committee) to answer why the Board moved in the way it chose to, was it a deliberate choice to ignore the Faculty Handbook?  She has explained the process before.  Real culprit/problem = search recruitment firm stress on this – clearly people want to discuss this, however, we only have 75 minutes.  After some discussion, a majority decided to invite University Counsel to come to the beginning of the meeting to answer questions and then to leave, and not to invite Lovey Hammel.

·         The issue will not go away, to consider amending the Faculty Handbook.  Basically want more faculty input into hiring president and provost, between a rock and a hard place given how searches are done.  The Faculty were supposed to have more elected representatives on the committee (6); to negotiate more representation on search committees in future – six or 8 slots.  Better for faculty to represent a percentage of committee membership, not a fixed number of slots, percentage to include ELECTED faculty.  Chair Pober will ask Visitor Hammel’s opinion about percentage of faculty membership feasible.

·         The resolution passed by the Faculty Senate (November 9th) called for transparency, a matter of principle; we are losing idea of respect.  When we passed the resolution, someone proposed how to respond if voted down, was not voted on at the time. 

·         If we continue down this road and  insist on open forums with finalist candidates,  we will cut out a huge percentage of qualified candidates; (goal) to get the best candidates.Others feel strongly that  finalist candidates (a group of 3 or 4)  not willing to come out into the open seen as a strike against person who does not want to get input from faculty, students, what they thin.  Would not apply to initial large group of candidates.

·         We do not know whether the candidates were made aware of the Faculty Senate resolution regarding finalist participation in open forums as defined in the Faculty Handbook. 

·         To take energy and concerns raised by this and utlitize it to make changes and need to do this fast.  Want to have massive faculty input on Provost search.  Somentes candidates are between and rock and a hard place.  They could do real harm to their own insititutions if public before decision made; impact on candidate’s university if search becomes public.

·         At the request of the Senate Secretary, the meeting will be recorded and announced at top of the meeting agenda.  The recording of the meeting will be destroyed once the minutes are completed.

 

 

Respectfully submitted,

Meg Caniano

Faculty Senate Clerk

 

ATTACHMENT A

 

Summary of Summer Salary Inquiry

Conducted by the Budget and Resources Committee of the Faculty Senate

12/26/11

Funding for summer term is now part of the annual academic budget allocated to units. The summer instructional budgets moved to the academic units (FY) 2010/11 and are part of the transition to move the university to an annualized model. Deans and Directors now have the flexibility of managing all funds to meet annualized targets. Similar to fall and spring, if an academic unit exceeds its target the unit is compensated for the additional FTEs generated. If an academic unit does not meet its established target, the unit is required to return a portion of funding centrally.

The primary disconnect seems to be that units do not uniformly receive sufficient funding from the Provost’s office to allow full-time faculty to teach one summer course at 10% of their base salary, as required by the Faculty Handbook.  In the past, the allocation was made assuming that 70% of summer classes would be taught by full-time faculty at 10% of their base salary, but this approach has changed over the years.  As mentioned earlier, the academic units now manage all funding related to summer term. According to the Provost’s office, each unit’s budget for summer is set based on historical data and a varied set of factors distinctive to each unit. The use of a full-time/part-time ratio was based on the historical use of each at the university during summer term. If an allocated budget does not meet the instructional costs associated with building and offering courses that meet the needs of students and faculty, chairs may submit requests to deans. The dean determines a course of action and, if necessary, contacts the Summer Term Office for collaboration.  No dean did so for summer 2011, according to the Provost’s office. 

In some units (e.g., Psychology, SOM), relatively few full time faculty request summer courses and thus the funds allocated are sufficient to meet and even exceed the requirements of the Faculty Handbook.  In other units (e.g., Sociology) the funds allocated are not sufficient to meet this Faculty Handbook requirement.  Chairs must overspend their summer allocations to provide summer teaching opportunities to full-time faculty and must take money from other parts of their budgets which are already very tight to make up the difference.  It was noted that some departments implicitly discourage full-time faculty from teaching summer school courses by the number, nature, and/or scheduling of summer school courses. Electrical and Computer Engineering, for example, has reduced its summer school offerings by approximately 60%. 

Summer courses are important to both Mason students and potentially for a significant portion of Mason’s faculty members.   Most Mason students work a significant number of hours each week while completing their degree requirements.  As a result of the time these students spend working and commuting, they want to complete coursework during the summer in order to finish their degree requirements in a timely manner.  Summer salary is potentially important to many Mason faculty, especially because Mason faculty have received a single average 2.25% raise in the past five years and because Mason faculty salaries now rank at the 3rd percentile vis-à-vis SCHEV defined peer, adjusted for cost of living.

According to the Provost’s office, all tuition revenue generated during the summer is part of the annual budget model that is based on annualized FTE which forecasts total revenues generated from tuition and then expenses against it to determine the annual tuition increase. The model showing generation of $3 for every $1 invested in the summer is based on summer FTE only against costs for instructional salaries and therefore erroneously depicts a surplus. That said, the summer session is likely to be a source of additional revenue for units and the University given the number of courses taught by adjuncts.

 

In sum, units do not uniformly receive sufficient funding from the Provost’s office to allow full-time faculty to teach one summer course at 10% of their base salary, as required by the Faculty Handbook.  Yet no dean contacted the Summer Term Office in 2011 for an adjustment to the summer allocation. An administrative procedure is needed to more flexibly meet the faculty requests for summer teaching assignments and associated salary.  One possibility would be to modify the procedure so that a specific deadline date be established for faculty to declare that they wanted a summer school course and that funding sufficient to cover all their salaries be put aside at that date.  The remaining money could be allocated to programs as done in the past. 

 

During the fall of 2011, the Budget and Resources Committee of the Faculty Senate sent a survey to Deans and Directors to get a clearer picture of the state of summer teaching by full time faculty.  Fifty seven (57) surveys were mailed and 53% (30) were returned with 27 completed by administrators who had been in their positions long enough to comment on summer teaching practices in their Unit. Eighty one percent (81%) of administrators routinely notified their faculty of summer teaching opportunities with one administrator noting that they only used adjuncts because tenure/tenure-track faculty use the summer for research writing. The same percentage of administrators was able to honor all faculty requests, and used adjuncts only when full-time faculty members were not interested.

 

However, 19% of administrators were unable to honor all full-time faculty requests for summer teaching when requests were made.  One Unit noted that their College and the Provost’s office encouraged the use of adjuncts for summer teaching whenever possible. Various types of rationing strategies were used to support summer teaching: one unit used only lower salaried faculty, another limited summer opportunities to graduate assistants and adjuncts and did not offer courses to faculty with outside funding streams such as grants or stipends, and another Unit offered a high salaried faculty the opportunity to teach a course other than the one requested, resulting in the faculty member declining to teach.

 

Additional funding requests, on the order of $30 - $100,000, were suggested by administrators in order to honor all full-time faculty requests for summer teaching. As an alternative to the 10% salary, support options included: encouraging faculty to apply for summer funding from the University or other outside sources, reliance on faculty summer grant funding, financing labs in natural science at the 6.7% rate instead of 10% (unless they are coordinating) and encouraging more oversight from the central administration.

 

At a subsequent meeting between the Chair of the Budget and Resources Committee and relevant members of the Provost’s staff (Cathy Evans and Renate Guilford), it was decided that each year in September, the Provost staff would work with the Chair of the Faculty Senate and the Provost to send out a call to faculty for requests for summer teaching, to be submitted to the Chair, Director, or Dean (depending on the unit).  In October, Chairs and Directors will submit to their Associate Deans a course schedule (without a budget).  Associate Deans will then communicate with the summer term office regarding funding required to cover courses with adequate enrollment.

 

ATTACHMENT B

 

January 12, 2012

Dear Fellow State Employees:

It continues to be my great privilege to serve you as Virginia's 71st governor and to work alongside all of you everyday. Since my inauguration almost two years ago, I have encouraged and pursued collaborative efforts to reform state government to make it more efficient and effective, and to position our state government for success in a changing and uncertain world. Toward that effort, I was honored to host the second annual State Employee Town Hall meeting last month. Thirty of your colleagues joined me in Richmond, with several thousand more joining by phone, online, or via teleconference. We held a candid, productive conversation touching on a wide range of issues. The input you provided through the Town Hall, and through other venues, are informing and driving the policies we propose for the Commonwealth.

Today, I write you about two of those policies.

I want to share with you first, in advance of a public announcement later today, my proposal to reform the critically underfunded and structurally imbalanced Virginia Retirement System.

As you are aware, I have already proposed the largest employer contribution in history to our state retirement system; an investment of over $2.2 billion. I did so to ensure that the system you rely upon would be fiscally sound and secure for decades to come. This contribution does help. The state is stepping up to do its share. However, after continuing to review financial projections and meet with our advisors, the simple truth is our state retirement system cannot be stabilized absent increased contributions from both employer and employee. This is a matter of math. We are all in this together, and solving this problem will require contributions from both the employer and employee side of the equation. There is no other way to make the system work, and your retirement accounts are too important to let fail.

To ensure that your retirement is there for you when you need it, I am today proposing a number of reforms to the employee side of the system. These reforms will put our system more in line with private sector plans. And they will help transition our retirement system to one that can survive and grow in the 21st Century. For too many years we’ve all kicked the can on making the changes we know are necessary. We can’t do that any longer. We have to act now to ensure your retirement account is there, in full, for you when you retire.

My additional reform proposal includes changing the formula for cost of living adjustments (COLA), phasing in increases for employee contributions from the current 5 percent (established in the 2011 General Assembly and completely offset by the 5% pay raise you received at the same time) to 6 percent at 0.5 percent over the next two years and creating a new optional hybrid plan that will give employees a choice to move toward a defined contribution system as opposed to the current defined benefits program. Most of these reforms should not impact those employees close to retirement. It is my intent that the impact of the additional employee contribution of 1 percent will be more than offset in fiscal year 2013 by my proposed performance bonus of up to 3 percent. You have demonstrated an incredible ability to save and allow state government to work within its means, and I am confident you will be able to do that again this year.

I know these changes will not be easy. You are being asked to make additional contributions to help provide greater security to your retirement system. But we don’t have a choice. The math doesn’t add up. Your retirement accounts are in jeopardy unless we make our public pension system adapt to the financial realities of the 21st Century. To stand by and do nothing, and put your retirements at risk, is not an option. We know what the problem is. We know what the solutions are. Now, we have to act.

Through our joint efforts on both the employer and employee sides of the contribution equation, we will together guarantee the long term health and integrity of the system on which we all depend. We simply cannot ignore the unfunded liability of the current system, of which we are all well aware. To refuse, in the face of overwhelming empirical data, to take bold actions now to correct its negative trajectory would be a tremendous disservice to all state employees, present and future. We cannot pass these hard decisions on to later administrations or state employees. We can come together to fix our system now, and demonstrate a collective ability to identify a problem and solve it, proactively. That’s good for our future retirement accounts, the stability of our state finances, and the entire Commonwealth.

Second, I want to address the issue of employee leave. In November of 2010, my Commission on Government Reform and Restructuring recommended that the “employee leave program ... be reformed and simplified to reduce current multiple layers in order to make it more consistent and manageable.” This was one of many recommendations aimed at streamlining state government operations. Over the past year, many of you have expressed uncertainty and unease regarding that particular recommendation and the way that it would affect your previously earned leave balances.

Based on your concerns and outreach to my office and my Chief of Staff, I have decided to postpone this initiative and continue to explore means of simplifying the employee leave system over the weeks to come in a manner that is fair, easy to understand, and beneficial to all state employees. I want to specifically thank those of you who have served as part of the Department of Human Resource Management's Leave Employee Advisory Group and for all human resources staff across the Commonwealth who worked to generate a plan worthy of and useful to our state workforce.

Again, I thank you for your continued dedication and unwavering resolve as public servants working to better Virginia for all. I am honored to serve alongside you in state government.

Sincerely,

Governor Bob McDonnell

 

 

 

ATTACHMENT C

 

From: Peter Stearns <pstearns@gmu.edu>
Date: January 13, 2012 6:54:19 AM CST

 To: Peter Pober <ppober@gmu.edu>, Edward Rhodes edrhodes@gmu.edu>

 

Peter, I would like to propose the following for Senate approval. It has been blessed by SPP, the relevant home academic unit

In recognition of years of meritorious service to the University, the Faculty Senate recommends to the Board of Visitors that Thomas Hennessey be granted the title Chief of Staff Emeritus upon his retirement in May, 2012.
 




ATTACHMENT D

 

 

III. Faculty Handbooks as Enforceable Contracts for Governance Provisions

Courts are often asked to decide whether faculty handbooks, which include policies, rules, and procedures under which professors work, establish contractual relationships between a professor and an administration. While the issue usually arises in the context of individual breach-of-contract claims in the employment context, sometimes litigation arises between trustees and faculty senates about the legal status of faculty handbooks generally and whether governance provisions are enforceable specifically.

 

University of Dubuque v. University of Dubuque Faculty Assembly, No. EQCV90784 (Iowa Dist. 1999): The university's board of trustees, apparently in an effort to amend the university's faculty handbook without seeking faculty approval, sued 46 faculty members. The board sought a court order declaring that the faculty handbook used at the university was not a contract, but simply a "formal institutional policy statement." The faculty members argued that the handbook provided for faculty approval of handbook revisions. The trustees argued in state court, where they sought a declaratory judgment, that the faculty handbook was a "guidepost" because, if it were

otherwise, the board would be "stymied by the faculty senate." The court noted that the faculty handbook was incorporated into each individual faculty member's letter of appointment. The court further observed that the preamble of the faculty handbook stated that the handbook was "legally binding." Accordingly, the court concluded that the university faculty handbook was "legally binding and enforceable upon both parties." At the same time, the court found that two provisions of the handbook conflicted, and resolved that potential conflict in favor of the trustees. Specifically, one clause provided for modifications of the handbook by the trustees only, and another provision established procedures for faculty approval of handbook revisions. The board claimed victory in the lawsuit, because the court "allow[ed] the Board of Trustees . . . . to adopt and incorporate into the Handbook any proposed modification submitted to the Amendment and Revision Committee, regardless of whether the same has been approved by the faculty at large."

 

 

Tabbox v. Indiana State University Board of Trustees, Cause No. 84D01-9203-CP-445 (Vigo Superior Court, Indiana, Apr. 1992): Seventy-eight members of the Indiana State University faculty sought a declaratory judgment and permanent injunction against their board for continuing a presidential search and appointing a new president in violation of their faculty handbook, which provided that faculty members serve on the search committee of the university. The court was asked to review not only the specific violation of the presidential search provision of the

handbook, but also the larger issue about the legal status of the handbook as a "contract between the Faculty and the University." The parties settled. The settlement agreement did not directly address whether the faculty handbook was enforceable as a contract. Rather, it affirmed that the handbook "provide[s] for meaningful faculty participation in University governance. . . ."

 

 

Faculty for Responsible Change v. Visitors of James Madison University, 38 Va. Cir. 159 (Va. Cir. 1995): An association of faculty sued the university for breaching faculty employment contracts by closing some academic programs without having first obtained the recommendation from various faculty bodies, including the faculty senate. The faculty handbook, which was incorporated into individual letters of appointment, provided that JMU faculty had the "primary role" in the development, modification and review of the curriculum, while the president of JMU had the "final authority and responsibility" for curricular matters. The administration announced that it was

merging one of its colleges with another, and that it was closing a number of academic programs. The administration announced these changes "without obtaining the recommendations of the University Council, the Undergraduate Curriculum Council, the Graduate Council, or the Faculty Senate." The court noted that "FRC does not allege that its claim is formally supported by the JMU faculty as a political body." The court found no breach of contract. The court reviewed the faculty handbook language, and noted that the dictionary definition of "recommendation" does

not require a recipient to be "bound to follow it." The court also noted that the president had "final authority" over all curricular matters. The court reasoned: These governance provisions expressed the parties' hopes and expectations with respect to faculty reorganizations

and curriculum changes, but, as applied to the facts of this case, they are not an enforceable contract between the [administration] and the faculty as to the faculty's mandatory participation in the curriculum changes which the President made and which the Board of Visitors has not rescinded. FRC's remedy as a group in this case is political not legal.

 

 

ATTACHMENT E

 

FROM:  “FACULTY HANDBOOKS AS ENFORCEABLE CONTRACTS: A STATE GUIDE”  AAUP, 2009

 

 

VIRGINIA

 

Tuomala v. Regent University, 477 S.E.2d 501 (Va. 1996). Three professors

signed “three-year continuing contracts” for “tenured faculty appointment[s],”

the terms of which were defined in the faculty handbook, and the university later

modified that handbook to provide that professors receiving appointments under

continuing contracts were entitled to annual “new contract[s],” rather than

renewal of existing contracts. In the end, the professors were entitled to three

years of employment under their three-year contracts, and after that they were

entitled to one-year contracts only.

 

Sabet v. Eastern Virginia Medical Authority, 775 F.2d 1266 (4th Cir. 1985).

A professor believed that a university offered “permanent tenure” in accordance

with AAUP policy. This belief, based on the widespread adoption of AAUP

policies and the fact that the university had always renewed contracts in the past,

was not justified, the court ruled, when the faculty handbook stated that the

university had no such tenure policy.

 

Siv v. Johnson, 748 F.2d 238 (4th Cir. 1984). Where standards for tenure in

the faculty handbook were formally adopted by the board of visitors, which had

sole authority to grant tenure, the standards were presumed by the court to be part

of a nontenured professor’s contract. Although the handbook stated that faculty

recommendations for tenure should be followed barring some “compelling

reason,” the faculty member’s constitutional due process rights were not violated

when the administration denied tenure in spite of faculty recommendations and

did not state a compelling reason for doing so. The administration’s decision was

based on the perceived lack of scholarly potential, a constitutionally permissible

reason.