GEORGE MASON UNIVERSITY
MINUTES OF THE FACULTY SENATE
October 15, 2008
Robinson Hall B113, 3:00 – 4:15 p.m.
Senators Present: Ernest Barreto, Sheryl Beach, Kristine Bell, Jim Bennett, Alok Berry, Doris Bitler, Lorraine Brown, Phil Buchanan, Rick Coffinberger, Lloyd Cohen, Jose Cortina, Nada Dabbagh, Sharon deMonsabert, Rutledge Dennis, Jeffrey Gorrell, Lloyd Griffiths, Frances Harbour, Allison Hayward, David Kuebrich, Linda Monson, Jean Moore, Janette Muir, Star Muir, Peter Pober, Daniel Polsby, Larry Rockwood, Jim Sanford, Joe Scimecca, Suzanne Slayden, Ray Sommer, Susan Trencher, Iosif Vaisman, Nigel Waters, Harry Wechsler, Peter Winant, Michael Wolf-Branigin, Stanley Zoltek * (* by teleconference phone).
Senators Absent: David Anderson, Rei Berroa, Deborah Boehm-Davis, Frieda Butler, Jack Censer, Vikas Chandhoke, Claudio Cioffi-Revilla, Sara Cobb, Yvonne Demory, Betsy DeMulder, Penelope Earley, Kingsley Haynes, Mark Houck, Allen Hughes, Richard Klimoski, Howard Kurtz, Alan Merten, Jane Razeghi, William Reeder, Pierre Rodgers, Suzanne Scott, Peter Stearns, June Tangney, Tojo Thatchenkery, Shirley Travis, John Zenelis.
Visitors Present: Kevin Avruch, Professor, Institute of Conflict Analysis and Resolution; Rick Davis, Associate Provost for Undergraduate Education; Pat Donini, Deputy Director, Human Resources and Payroll; Esther Elstun, Professor emerita, Modern and Classical Languages; Martin Ford, Sr. Associate Dean, College of Education and Human Development; Dolores Gomez-Roman, University Ombudsman; Dave Harr, Sr. Associate Dean, School of Management; Susan Jones, University Registrar; Jeffrey Parker, Professor, School of Law; Linda Schwartzstein, Vice Provost of Academic Affairs.
Note: Only business included in the agenda can be transacted at the Special Meeting.
I. Call to Order: The meeting was called to order at 3:06 p.m. by Chair Suzanne Slayden. As Professor Slayden is a member of the Faculty Handbook Committee, she recused the chair to Professor Peter Pober, Chair pro tempore. The meeting will begin with two five-minute opening speeches, in favor of and opposed to the motion. Alternating speakers for and opposed to the motion will be recognized for three minutes each. The Sergeant-at-Arms will stand (to mark) thirty seconds before end of time period allotted.
II. New Business
That the Faculty Senate approve the Faculty Handbook 2009 (draft dated 10/15/2008) with no further revisions at this time other than those necessary to correct typographical and grammatical errors.
Since late 2005 the Faculty Handbook Revision Committee has worked in a highly collegial and diligent fashion, meeting more than 60 times (including posting of minutes of these meetings on the Faculty Senate Website). Nine faculty forums (three at each campus) were held to insure that all faculty had opportunities to ask questions and offer suggestions.
The product of this collective effort is a document that both the Faculty and Administration can rely on to promote sound, shared governance. To achieve this goal, the Committee carefully scrutinized every sentence in the 1994 edition of the Handbook to insure that all inaccurate information was corrected and all existing policies and procedures were stated with clarity and precision. In addition, the Handbook has been updated to include all of the relevant policies and procedures adopted since 1994 and carefully edited. In several key places the Committee also inserted clarifying language and additional procedures and procedural safeguards designed to insure that the Handbook would be - and would be regarded as - a truly useful and meaningful document by all parties governed by its contents.
The 2009 Handbook as submitted to the Faculty Senate has been carefully reviewed by the AAUP, University Counsel, the Provost, and other members of the Central Administration. In addition, the document has been fully endorsed by the Central Administration despite the fact that particular individuals might have preferred somewhat different wording in some sections of the revised Handbook.
In that spirit, we are also asking the Faculty Senate to approve the 2009 Handbook in its current form without further revision. Such approval does not mean that future changes cannot be considered from time to time as needed. With modern technology and using the procedures described in the revised Handbook, it is now possible to treat the Handbook as a living, evolving document that can be updated and improved with relative ease on an ongoing basis.
Suggestions for substantive changes made at this meeting will be noted and referred to the Faculty Senate for consideration as possible agenda items after the Board of Visitors has approved the current version of the 2009 Faculty Handbook.
Faculty Handbook Revision Committee
Lorraine Brown (Senator, CHSS)
Rick Coffinberger (Chair, Senator, SOM)
Suzanne Slayden (Senator, COS)
Professor Rick Coffinberger, Chair of the Faculty Handbook Revision Committee and Faculty Senator, School of Management, for the motion: A motion was approved by the Faculty Senate in the fall of 2005 to go forward with a review of the Faculty Handbook. A lot of discussion via email has recently taken place regarding the pros and cons of this decision. Four members of the Committee were elected by the Faculty Senate and two members appointed by the Provost. I was appointed chair of the Committee by the chair of the Faculty Senate. At the outset, the Committee agreed to aspire for consensus; in the event of a split, the outcome would be determined by vote. It never became necessary to vote as the Committee was always able to compromise and reach consensus. The Faculty Handbook you are now asked to approve is the result of consensus. Our first meeting took place in January 2006; more than sixty meetings and nine open forums have taken place. Minutes of meetings are posted on the Faculty Senate website; some limitations on support existed as the Senate clerk is a wages employee. Committee members all have their own individual interests, but served as University citizens in this task. The document had to be workable from both Faculty and Administration perspectives; without the endorsement of the Administration, it is highly unlikely the revised Handbook would be approved by the Board of Visitors (BOV). Approval was also sought from the Assistant Attorney General of Virginia, who also provided feedback and endorsement. Two AAUP readers reviewed the text and also provided feedback. We disagree with the position of the School of Law that revisions made to post-tenure review policies lessen tenure protections. Tenure has never been an absolute guarantee of a job forever.
Professor Jeffrey Parker, School of Law, opposed to the motion: I am not a Faculty Senator but am here to speak for the faculty of the School of Law who met a week ago today and voted unanimously against approval of the 2009 Faculty Handbook revision. The product is not ready to be approved as a constitutional, charter document. The revised post-tenure review provisions (Section 2.6.2 Post Tenure Review Policies and Procedures) in fact do reduce legal protections of tenure in the present 1994 Handbook as well as those in Section 2.9.3 Termination of Tenured, Tenure-Track, and Term Faculty for Cause. This document does not pass muster and should not be a legacy to give to future junior colleagues. While not critical of the members of the Committee, I wish to make four points:
-1- Process: We do not believe the process was open enough. This is the most important thing to come before the Faculty Senate for a vote. The Faculty Handbook is like a constitution; unlike the Administrative Faculty Handbook, it specifies internal governance relationships. I do not care about what the Provost thinks or wants; (the Handbook) controls the Provost. A University is not like other corporate institutions. Employees and stockholders help boards control corporate administrative officers; however, at a University faculty are the stakeholders. The Board at a university is viewed as “summer help” in the sense that it does not have time to work on important projects such as the Handbook. A broadly inclusive process of writing and reviewing the Handbook has not taken place – we do not see minutes of the open forums we attended and at which we raised our concerns.
-2- Law: (The Handbook is) a contractual document and the Faculty’s only legal recourse, and it defines the governance structure of the University. What you have to bear in mind is to think of a future administrator who is your worst enemy. Under such a condition, the new Handbook is inadequate.
[At this point, Professor Parker had used up his allotted five minutes.]
(Note: The School of Law distributed a letter to Faculty Senators on October 14, 2008 which contains a link to its Resolution of the Law Faculty concerning the proposed 2009 Revision of the Faculty Handbook – see Appendix 1).
A Senator from the College of Education and Human Development, for the motion: I am a new Senator and briefly read the emails distributed. I disagree with Professor Parker. All administrators at the University started out as faculty members – they are not my enemies. They facilitate procedures in the college such as tenure. Administrators control things that need to be controlled or else the situation would be out of control. I like the freedom of being a faculty member. The School of Law's statements are contradictory; however I agree the Faculty Handbook protects faculty freedoms, and (serves as) its constitution. Conflicting viewpoints exist about giving faculty more ownership in decisions involving tenure. This is not a full revision of the Faculty Handbook. The accompanying text clearly points out which revisions were made and why.
A Senator from the College of Humanities and Social Sciences, requesting a point of information: A point of information was raised regarding the actual nature of the objection raised by the Law School. The points raised by the speaker from the Law School seemed more focused on the commitment of those who had worked on the revision of the handbook to faculty governance. In the Senator's view this commitment had been clearly demonstrated over a long period of time. Further, other concerns raised in the previous comments appeared directed to issues related to the Charter of the Faculty Senate rather than to those germane to the Faculty Handbook.
Response: Professor Parker: The Faculty Handbook is in fact your contract, you do not get rights from the Faculty Senate charter. The shift in provisions between the 1994 Handbook and the 2009 proposed revision changes the rights of the Faculty. Virginia law on tenure is essentially case law – a situation that raises the danger of diminishing rights. On this matter, it might be well for the Handbook Committee to confer with Tom Moncure, University Counsel.
A Senator from the College of Humanities and Social Sciences, for the motion:
In all my thirty-five-plus years here, this is the most vetted document ever; it has been held up for scrutiny for a period of over two and a half years. When the Chair of the Handbook Committee asked for changes from the old to new Handbook, many opportunities were given to respond. The Chair has given updates at nearly every Faculty Senate meeting. Many people have made suggestions to the Faculty Handbook Committee – some suggestions were accepted, some were not.
Response: Professor Coffinberger: After the current version of the Faculty Handbook was distributed to all faculty by email, no one attended the Arlington Forum on September 16th; no one from the Law School emailed the Committee at that time.
A Senator and Dean of the School of Law, Daniel Polsby, opposed to the motion: To continue Professor Parker’s points beyond the issue of the worst possible administrator: we see no pressing need to approve the new Handbook now. We need to have a more extensive deliberation about whether the proposed Handbook is an improvement over the 1994 version. I do commend the Committee for its work over a long period of time. Other questions have been raised by Dean Haynes and Assistant Dean Finkelstein of the School of Public Policy as well as the Law School faculty; with due respect to the University Counsel (questions) well-versed in Virginia law. It is premature to approve the Resolution before us at this time.
Comment: Professor Parker commended Dean Haynes’ suggestion to rotate the draft through the different schools for careful review.
Professor Kevin Avruch, ICAR, and Member of the Handbook Committee, for the motion:
[Professor Avruch displayed a slide listing some protections and essential improvements afforded by the proposed 2009 Faculty Handbook that are not part of the 1994 Handbook. (See Appendix 2)]
The revision process was incredibly open. There was transparency, and faculty had adequate time to register their concerns. The basic question is: do you think you are better covered by a fourteen year-old Handbook? The University has changed greatly – research and clinical faculty were not recognized in the old Handbook. A fundamentalist constitutional viewpoint does not provide for necessary changes. The Handbook Committee’s response to the questions raised by the Law School faculty about post-tenure review was distributed yesterday (see Appendix 3). The following slide outlines our response:
POST-TENURE REVIEW ALTERNATIVES
What is NOT at issue
1. According to the Asst. Attorney General in Mason’s Office of Legal Affairs (10/14/08), section 2.6.2 does not in any way change the legal definition of tenure or the conceptual meaning of tenure. 2.6.2 merely provides a performance-based, rehabilitation-oriented set of procedures for dealing with cases involving unsatisfactory performance rather than a conduct-based, sanctions-oriented set of procedures (2.9.3, termination for cause).
2. All parties agree that state law does not specify what procedures should be used for post-tenure review; that is up to each university.
3. The Law School has proposed that the procedures specified in 2.9.3 be ADDED to those in 2.6.2 (which would function as “screening” procedures). However, this is unacceptable to Mason’s central administration, which has accepted several new procedural protections for faculty related to post-tenure review, but which also insists that the principle of timely resolution be respected.
What IS at issue
Using the procedures specified in the 2009 Faculty Handbook, section 2.6.2, for post-tenure review, OR using the procedures specified in 2.9.3.
The Law School believes that the procedures in 2.9.3 afford greater protection of faculty tenure rights. Using these procedures, a faculty member whose performance is repeatedly unsatisfactory would be defined as “professionally unfit,” similar to those who have committed illegal and immoral acts. “Professional unfitness” is a label that implies that the “fault” lies solely with the faculty member. It is a label that suggests that the faculty member could not succeed in any faculty job under any circumstances.
The Faculty Handbook Revision Committee, which has taken a practical, empirically oriented approach, believes that the procedures in 2.6.2 afford greater protection of faculty tenure rights. From this perspective, a faculty member whose performance is repeatedly unsatisfactory is viewed as needing professional development. If such efforts are unsuccessful, attempts can be made to reassign the faculty member to create a job with improved “goodness of fit.” If that is not possible, and termination is the only remaining option, it does not necessarily mean that the faculty member could not succeed in other academic positions.
In conclusion, while acknowledging the insight of the professors from the School of Law, all faculty can read the revisions intelligently.
A Senator from the College of Science, opposed to the motion: I appreciate all the effort involved and suspect the Committee did not think the task would take so long. The motion asks us to send a very important document to the BOV. Board members may be concerned that large parts of the faculty do not agree with the revised Handbook. Before sending the Handbook to the Board, we need to develop greater faculty consensus.
Question from a Senator from the College of Science: Under Section 2.6.2 how does a faculty member get more protection with a stipulation of two unsatisfactory ratings over a four-year period instead of the present Handbook’s requirement of three unsatisfactory ratings over a five-year period? I prefer the present Handbook’s protections against dismissal.
Response: Martin Ford, Senior Associate Dean of the College of Education and Human Development and Member of the Handbook Committee: The Provost insisted upon a timely way to respond. He felt three years out of a five-year period was excessive compared to procedures at other universities. The Committee worked hard to accept a “two years out of four” plan and yet also guarantee adequate protections to the Faculty. Several new protections were added. The new Handbook calls for the creation of a faculty review committee. Previously the Provost made the decision. Therefore, the Provost is disempowered if the committee does not vote negatively. Another new protection: The inclusion of “overall” unsatisfactory rating was added to protect faculty who may have an unsatisfactory rating in one area; under the new Handbook, such a faculty member would not be subject to the post-tenure review process. The Committee attempted to develop a balance between the principles of timely review and faculty job security.
Response: Professor Parker: [For Professor Parker’s response to a request by the Secretary for an explanation of a comment made at the meeting that was not fully captured and understood by the Secretary and Clerk, see Appendix 4.]
A Senator and Dean of the College of Education and Human Development, Jeffrey Gorrell, for the motion: Is the new Handbook measurably better as an entire document? Clearly yes. Does it help me work with my faculty? Yes. There may be some warts in this new version, but revisions are possible in the future, and today we should pass it as it is.
Question from a Senator from the College of Humanities and Social Sciences: Is there any reason why the new stipulation requiring the affirmative vote of a faculty committee on post-tenure review—which gives the final say to the faculty and not the Provost--was not included in the summary of significant changes?
Response: Sr. Associate Dean Ford: You are correct; it should have been included in the summary.
A Senator from the School of Law opposed to the motion: I wish to point to an important difference between the language of Section 2.6.2 Post Tenure Review and Section 2.9.3 Termination of Appointment...for Cause. The former calls for a departmental committee; the latter for a university committee. The former should also require a university committee. This would provide a greater level of security against a small cabal of crones. It strikes me as rather bizarre that more protection exists under Section 2.9.3 for malfeasance than Section 2.6.2 for post-tenure review.
Comment: Professor Parker: Section 2.9.3 (2008) is a watered down version from 126.96.36.199 Dismissal of Tenured and Probationary Faculty Members for Cause, which required screening by two committees. Where does the University Grievance Committee come from?
A Senator from the College of Humanities and Social Sciences in favor of the motion: I am in favor of approving the new Faculty Handbook but also favor tweaking post-tenure-review. The new Handbook allows for the possibility that someone could be released one year after receiving an unsatisfactory rating. If a faculty member gets one unsatisfactory rating, then she or he would only have one year to improve. If s/he fails to do so, then s/he could be terminated. If a person is found “unsatisfactory,” s/he may need more than a year to turn things around.
Response: Sr. Associate Dean Ford: Assuming that a faculty member (receives) two consecutive unsatisfactory evaluations, then this scenario is possible – assuming that all agree what should happen. In reality, many other possibilities may take priority – such as reassignment or professional development initiatives. There is an empirically slim chance of dismissal in two years. In actual practice, things are done differently.
Response: Professor Parker: At the end of the post-tenure process, there should be a tall backstop. The purpose of this is to encourage the Administration to choose a lesser option than terminating the faculty member.
Comment: Professor Coffinberger: The Committee looked at post-tenure review policies at the University of Virginia, Virginia Commonwealth University, and Virginia Tech. VCU post-tenure review begins after one overall unsatisfactory review. A study of post-tenure review policies at Virginia research universities was published in 2008. Among 14 public universities, from 1998-2003, there were 400 post-tenure review cases; in only 2 cases was a faculty member actually fired.
Question from a Senator from the College of Humanities and Social Sciences: Has the AAUP looked at the proposed new Handbook?
Response: Senator Lorraine Brown, College of Humanities and Social Sciences, and Member of the Handbook Committee: We asked the AAUP to look at certain sections of the Faculty Handbook, and they agreed to go through the whole thing. Their suggestions were combined with the Provost’s and University Counsel’s suggestions this summer. Overall, the AAUP thought our Handbook was so good that one of the AAUP readers used our draft document as a model at a conference where he spoke.
Question from a Senator from the School of Law: Was Section 6 of 2.6.2 Post Tenure Review Procedures included in AAUP review? It does not appear in draft minutes until August 20, 2008. [6. In the event the faculty member’s employment is terminated in accordance with the procedures of this section, such termination shall be final and Section 2.9.3 shall not apply. However, nothing in this section shall act to prevent or prohibit termination of employment of a faculty member for cause in accordance with the procedure set forth in Section 2.9.3.]
Response: Sr. Associate Dean Ford: The Provost stressed the principle of timely response. We cannot call for layer after layer of review and have the process go on forever. It is not a viable option to allow a faculty member to use the process outlined in Section 2.6.2 and then go into another infrastructure.
Question: Professor Parker: The AAUP did not approve the particular language for Section 6 in the new Handbook. I agree with the proposed compromise that we take the local review of 2.6.2 and replace it with the centralized grievance committee called for in 2.9.3. This would not require a more time-consuming process, and it might take less time. Where is the centralized University Grievance Committee?
Response: Professor Avruch: Sections 2.6.2 and 2.9.3 conceptually are two different things. Moral turpitude as dismissal for cause is dealt with in Section 2.9.3. Section 2.6.2 deals with the evaluation of faculty performance as unsatisfactory. The Committee wanted to maintain discrete processes for post-tenure review and dismissal for cause.
Comment: Professor Coffinberger: AAUP has lots of documents about post-tenure review. They do not like it, understandably, but they offer guidelines for a reasonable policy.
1. Policy to be developed and implemented by faculty.
2. Services to support faculty development available.
3. Opportunity for faculty member to comment and respond.
Response: Professor Parker: You do not meet the (above) guidelines because there are no requirements for due process.
Response: Professor Coffinberger: I disagree; it’s in there.
In response to a question raised, a Senator from the School of Law clarified that the Faculty Handbook is a contract between the Faculty (represented by the Faculty Senate) and the BOV, not the Faculty and the Administration.
A Senator from the College of Science commented that regardless of the merits of the various arguments that have been raised, the fact remains that the entire faculty of the School of Law says the Handbook is not ready.
[Of 40 full-time instructional faculty in the School of Law, twenty-three were present at a meeting where the new Handbook was discussed, and all voted against approving it.]
Response: The new Handbook is a living document. Provisions for revision appear in Appendix 5. A number of changes suggested by the School of Law can be incorporated at a future date.
A Senator from the School of Public Policy, opposed to the motion: The School of Law is not the only faculty opposed to the Handbook. The majority of the faculty in the School of Public Policy also oppose it. It seems wise to put on the brakes, adjust the Handbook a bit, and send it back to the Faculty for review.
Response: The School of Public Policy sent out a mailing today to which the Handbook Committee has already responded. Some points raised by SPP were inaccurate, and they could have come to the Committee with input at any time.
Chair pro tempore Peter Pober called the question to vote in favor of or in opposition to the motion above. Paper ballots were distributed, collected, and counted by the Sergeant-at-Arms. 22 votes in favor, 11 votes opposed. The motion passed.
III. Adjournment: The meeting adjourned at 4:16 p.m.
LETTER FROM THE SCHOOL OF LAW DISTRIBUTED TO FACULTY SENATORS OCTOBER 14, 2008
I am writing to you at the behest of the faculty of the School of Law, to call your attention to the attached resolution of the Law Faculty (also posted on the web at
docushare.gmu.edu/dsweb/View/Collection-4903 ), which was passed unanimously last Wednesday and was presented to the Faculty Senate’s Handbook revision committee last Thursday.
At the Faculty Senate’s meeting this coming Wednesday, you will be asked to consider a complete revision of the GMU Faculty Handbook, to replace the existing 1994 edition with an entirely new 2009 revision. For the reasons stated in our resolution, the faculty of the School of Law is opposed to this revision. We believe that, despite the extensive efforts of
those involved, the proposed revision is not ready for consideration and passage by the Senate. Instead, we urge that the matter be remitted for further study. There is no pressing need for a new Handbook, as the 1994 Handbook has served us well. A wholesale revision, without specific focus on any real problem to be solved, is likely to create more new problems than it solves. Therefore, the best solution at present is slow down and reconsider the project.
We emphasize that this is not a new issue being raised at the last minute. Throughout the Handbook revision process, members of the Law Faculty have raised the same objection, which appears to have received no serious consideration The Faculty Handbook serves as the organic constitutional charter of internal governance at GMU. It is dangerous to
undertake a revision without a specific focus. To our understanding, there is no such focus to the current project.
Our general concerns are heightened by certain specific provisions of the proposed new Handbook that, in our judgment, materially and unnecessarily undermine the tenure rights of GMU faculty. We speak here of the newly-minted provisions for “post-tenure review” (primarily § 2.6.2 of the proposed revision). These provisions were only recently added in August of this year, and so they are not the product of long and careful study.
One of the principal arguments for these provisions is that state law “requires” them. The Law Faculty has investigated this claim, and found that it is incorrect. To the contrary, a 2004 report by a legislative study commission found that the pre-existing 1996 post-tenure review policy, coupled with the due process protections of the 1994 Handbook, were fully
In contrast, the currently proposed revision would eliminate the due process hearing protections for faculty members (in § 2.9.3 of the proposed revision), which themselves have been watered down by eliminating the role of local peer faculty. More fundamentally, the new provisions for “post-tenure review” effect a drastic reduction in the legal protection
afforded to academic tenure, and place GMU out of step with the general academic community. The faculty of the School of Law also is specifically opposed to these changes.
Accordingly, our resolution recommends, in the event that the Faculty Senate proceeds with a revised Handbook, that the current draft be amended to rectify the dilution of tenure rights entailed in the post-tenure review provisions. Our resolution contains specific proposed amendatory language, together with explanatory notes, to carry out that objective.
The Law Faculty urges all Faculty Senators to consider our proposals carefully, and to join with us in preserving the tenure protections and peer-governance rights of all GMU faculty.
Jeffrey S. Parker
Professor of Law, on behalf of the Faculty of the School of Law
Some Protections and Essential Improvements Afforded by the Proposed 2009 Faculty Handbook That Are Not Part of the 1994 Handbook
· 2009 Handbook expands coverage to provide protections to research and clinical faculty (about 200 employees!)
· 2009 Handbook adds a new LAU study leave program and incorporates the Provost’s competitive study leave program
· 2009 Handbook updates language concerning the “normal” faculty teaching load
· 2009 Handbook incorporates by reference significant federal statutory protections for faculty (e.g., pertaining to FMLA, USERRA [military leave], sexual harassment)
· 2009 Handbook provide express procedural guidance and constraints for direct (noncompetitive hires), with or without tenure
· 2009 Handbook adds needed section on “Favoritism in Personnel Decisions”
· 2009 Handbook adds “software and media” to the list of products that might be used to demonstrate achievement in research and scholarship
· 2009 Handbook resolves ambiguities related to “Institutes”
· 2009 Handbook adds several important protections related to post-tenure review (e.g., giving peer faculty the primary role in these personnel evaluations rather than the Provost)
· 2009 Handbook requires that, in the event of financial exigency, “administrators responsible for developing budget reduction plans must consult with tenured and tenure-track faculty…” and that “principles and criteria for identifying specific individuals whose appointments are to be terminated should be formulated by tenured and tenure-track faculty.”
· 2009 Handbook clarifies and strengthens language governing summer salaries
· 2009 Handbook clarifies criteria for promotion to full professor for both tenured and term faculty, plus “genuine excellence” now required for term faculty
· 2009 Handbook include essential references to numerous university policies, Faculty Senate motions, etc. passed since 1994
· 2009 Handbook incorporates the most recent (2008) GMU Mission Statement
FACULTY HANDBOOK COMMITTEE RESPONSE TO SCHOOL OF LAW LETTER OCTOBER 14, 2008
As you know from a previous communication, next Wednesday (October 15) there is a Special Meeting of the Faculty Senate to consider proposed revisions to the Faculty Handbook. The document that senators will be asked to approve is the document on the Faculty Senate web site.
Although we had hoped to obtain feedback from all interested parties through our email invitations and faculty forums, this afternoon the Law School provided the Faculty Handbook Committee with two documents requesting additional changes to the 2009 Handbook revision. One document was a short list of minor corrections/clarifications that the Committee can handle as part of the "final cleanup" in which we correct a handful of remaining editorial and internal consistency errors.
The other document was a "Resolution of the Law Faculty concerning the Proposed 2009 Revision of the Faculty Handbook." Since SOL senate members will presumably raise the issues covered by this resolution at the Special Meeting, for efficiency the Faculty Handbook Revision Committee has elected to communicate these issues to you - and our response to these issues - in this email communication prior to the meeting on October 15.
From the Resolution of the Law Faculty:
"The sense of the Law Faculty is that a general revision of the Faculty Handbook is unwarranted at this time. There is no indication of any major problems in the operation of the 1994 Handbook. As the source of the contractual arrangement between the University and its faculty, and the fundamental rules of University governance and the accountability of officers, the Handbook should not be subject to revision for light or transient causes. Stability is more important than perfection, and wholesale revision is likely to create more problems than it solves."
Response from the Faculty Handbook Revision Committee
The attached summary provides a concise list of some the key substantive reasons why the 2009 Handbook revision will serve the faculty better than the 1994 Handbook. These do not seem to us to be "light or transient causes" either individually or collectively.
Logistically speaking, the number of new policies created in just the past years (e.g., tenure clock extension policies, study leave for tenure-track faculty, term faculty guidelines, post-tenure review, etc.) illustrates the need for a revised Handbook. In addition, the 1994 Handbook is filled with imprecise language - perhaps intentionally in some instances - that has not served the faculty well.
From the Resolution of the Law Faculty:
"In the event that the Faculty Senate determines to continue with the current proposal, the Law Faculty wishes to call the Faculty Senate's attention to certain provisions, most notably those concerning post-tenure review, that will materially reduce the protections of academic tenure in a way that appears to us inconsistent with the standards prevailing elsewhere, including other Virginia universities, and is in no way required by Virginia statute law."
The core of the Law School proposal is to define faculty members who consistently manifest unsatisfactory performance as "professionally unfit to perform the minimum duties of his or her position." Consistent with this definition, the Law School would propose to connect the post-tenure review process (section 2.6.2) with the "termination for cause" process (section 2.9.3) - i.e., one of the grounds for termination for cause would be "professional unfitness."
Response from the Faculty Handbook Revision Committee
With regard to the question of whether post-tenure review should be connected to the "termination for cause" section of the Faculty Handbook (2.9.3). We think this is problematic for two reasons:
a. It was really important to the committee to change the language in 2.9.3 from a subjective basis (Dismissal for cause is the involuntary termination of the employment of faculty members for reasons directly and substantially related to their fitness in their professional capacities) to a behavioral basis (Termination of appointment for cause is the involuntary termination of the employment of faculty members for reasons directly and substantially related to their professional conduct). We think it is unwise to construe cases involving repeated instances of unsatisfactory performance as being anything like conduct-related transgressions such as criminal conviction, exploitation, ethical or professional rule violations, and the like. Incompetent faculty can become competent faculty through learning, practice, and seeking guidance as well as constructive feedback. They need to be viewed differently than those who have committed conduct-related transgressions. Post-tenure
review cases should be looked at as opportunities for professional development (consistent with AAUP guidelines), with sanctions (including termination) only appropriate if there is a clear lack of effort to improve over a period of time. Evaluations of conduct-related transgressions are focused solely on sanctions.
b. Consistent with point a., we did not think that the procedure for dealing with conduct-related transgressions was appropriate for cases involving repeated unsatisfactory annual evaluations. Grievance committees typically deal with cases of misconduct and make recommendations about sanctions. Faculty evaluation committees typically deal with performance evaluations and often make specific professional development recommendations in conjunction with those evaluations.
If post-tenure review is connected with 2.9.3,, faculty with poor performance evaluations who aren't just "blowing off" major portions of their job are much more likely to be "dealt with" using sanctions rather than using professional development options.
With regard to whether section 2.6.2 adequately protects the faculty: The evidence suggests that the post-tenure review policy in the 2009 Faculty Handbook is about as faculty friendly as it can be. It is focused on rehabilitation of faculty who have received several warnings via the annual review process rather than on punitive actions. We would specifically point out the following specific features of the policy:
1. The most important feature of the policy described in 2.6.2 is that "George Mason University will use the annual review of all faculty (see Section 2.6.1) as its primary procedure for implementing Post Tenure Review within the personnel policies of the Commonwealth of Virginia." The AAUP does not like post-tenure review, but their main concern is add-on evaluations of tenured faculty focused specifically on the question of whether tenure should be retained. The AAUP states that "Post-tenure review must not be a reevaluation of tenure" and at Mason it is not until the very, very end of the line, which pertains to no more than one or two faculty annually (as explained below). Indeed, from an AAUP perspective, one could argue that Mason barely even has a post-tenure policy, since the AAUP defines post-tenure review as "a system of periodic evaluation that goes beyond the many traditional forms of continuous evaluation utilized in most colleges and universities."
2. Practically speaking, why is it so helpful to tenured faculty to have the annual review procedure be the primary procedure for implementing post-tenure review? The reason is simple: (a) the annual evaluation procedure is the primary procedure for determining annual pay raises, (b) no pay raise can be given to a faculty member with an unsatisfactory evaluation, (c) a zero pay raise is widely perceived as a very serious consequence, and consequently (d) unsatisfactory evaluations are rarely given.
3. Empirically speaking, what is the frequency of unsatisfactory evaluations in the annual review procedure? Consistent with point #1 above, at the university level, the frequency is less than 1% annually. For most faculty, such a result is a shock and they quickly and diligently take steps to try to get back above the threshold. As a result, the frequency of repeated unsatisfactory evaluations is far below one percent, i.e., each year there typically are only a couple of faculty in the entire university (if that) who would actually have to do what the AAUP defines as a prototypical post-tenure review procedure. Statistically speaking, it is virtually impossible to invent an alternative post-tenure review procedure that would be friendlier to tenured faculty.
4. The Faculty Handbook Revision committee worked hard to add some important protections for faculty that were not in place in the original version of the policy. The committee had to work strategically, as the Provost (presumably with anticipated BOV support) was insistent on changing the "3 years out of 5" threshold for consecutive unsatisfactory evaluations to a "2 years out of 4" threshold. We actually thought this was quite reasonable given the rarity of this event and the fact that the true threshold typically ends up being another year beyond the defined threshold anyway due to the timing of the annual evaluation procedure plus the time it takes to execute the required follow-up evaluation processes plus the required notice period (at least six months). In any case, we used this opportunity to "negotiate" several additional protections for the faculty:
a. We explicitly made it clear that "unsatisfactory" cannot mean unsatisfactory in just one area (teaching, research and scholarship, or service). It has to be an "overall" unsatisfactory evaluation. That has the effect of keeping things at a unit-based professional development level when dealing with productive researchers with poor teaching evaluations, or good teachers who are not publishing, unless the faculty member is simply not making any effort whatsoever to improve their performance.
b. We inserted an important new step insuring that the primary judgment of whether any sanctions should occur comes from peer faculty (i.e., the School/College elected P&T Committee acting as an evaluation committee). Previously the decision to implement sanctions was completely up to one administrator (the Provost), in consultation with other administrators (Dean/Director and, if relevant, the Department Chair).
c. We also added a strong statement that "Termination can only be considered by the provost if a majority of those making a recommendation to the provost vote to recommend termination." In other words, the Provost does not have the option of ignoring the peer-elected P&T committee vote. This is a very important addition because peer faculty are very likely to want to make sure that all efforts along the lines of professional development and/or readjusting assignments have been tried before recommending sanctions of any kind, much less termination. Imagine if the university hired a Provost with an aggressive desire to "clean house" with respect to underperforming faculty. This policy addition makes it impossible to do that using the post-tenure review policy. (NOTE: the Law faculty would like the majority vote requirement increased to a two-thirds super-majority requirement; however, the provost will not support that proposal).
d. We added an appeal step (to the University President, who traditionally takes a broader view of such matters than the chief academic officer).
In sum, since we are required to have a post-tenure review policy of some kind, the Faculty Handbook Revision Committee has worked hard to insure that the policy we do have will never result in the termination of a faculty member unless, in the judgment of peer faculty and multiple administrative levels, that is clearly the only reasonable option remaining.
If the policy is going to be revisited, it should not be done in the context of the current handbook revision process. It should be done in the context of a studious, months-long process that looks at all angles of the policy and associated procedures, that attends carefully to the full range of possible unintended consequences, and that (initially) does not involve the administration and BOV. Such involvement could easily result in the BOV asking for "a system of periodic evaluation that goes beyond the many traditional forms of continuous evaluation utilized in most colleges and universities," as is the case in several Virginia universities.
On behalf of the Faculty Handbook Revision Committee,
Rick Coffinberger, Committee Chair
Thank you for your message. Yes, I believe that I can clarify. I was responding to and disagreeing with the argument that the use of the "overall" unsatisfactory performance language provided stronger protections to faculty members, by pointing out that, with multiple factors and an essentially subjective standard, the proposed language was ambiguous as to the relationship between performance on the individual factors and the "overall" rating.
The example I was trying to develop symbolically was to consider the case of three different components of faculty performance, such as service, teaching, and research, symbolically named x, y, and z. My point was that the proposed language was ambiguous on the relationship, if any, that was required between the faculty member's performance on each of the individual criteria and the "overall" rating. Thus, the "overall" language would not prevent an administrator from saying that, while the faculty member's performance on each of the individual criteria (x,y,and z) were all satisfactory, the faculty member's "overall" performance was unsatisfactory. The reviewer could say that, while the faculty member's performance in each individual category was minimally acceptable, her or his "overall" performance was unsatisfactory, as the proposed language imposed no necessary relationship between the aggregate and the individual, in terms of weighting, synergies, or otherwise.
In mathematical terms, the overall function (which I described for simplicity as x+y+z, but which more generally would be written as f(x,y,z)) was not subject to any binding constraints, such that each of the x, y, and z variables (service, teaching, and research) had to fall below a specified minimum, or that any of them must fall below a minimum when considered separately. This is what I meant by contrasting the binding constraints that x, y, and z all were separately required to fall below some specified level, or mathematically that x< k, y < k, z < k, where k is some specified minimum for each variable.
For these reasons, the legal result of the adoption of the "overall" standard not only would fail to strengthen the protection of faculty members, but actually could weaken them, by supporting the argument that "overall" unsatisfactory performance could be found, even where all of the component performances were satisfactory, and a fortiori when some of the components (e.g., teaching, or both teaching and research) were satisfactory. I think that this is clearly the legal result, and I was seeking to explain that result in terms that would be appreciated by all concerned, though obviously my explanation was not sufficient. Nevertheless, it is an extremely important problem, in that the Committee apparently believed that it had accomplished something positive, whereas in fact it almost certainly diminished the faculty's legal rights vis-ŕ-vis the administration.
I also believe that the problem easily could be fixed, by including additional language specifying that no "overall" unsatisfactory rating could be given in the absence of separate unsatisfactory ratings in one or all of the constituent components.
Of course, this was not the preferred solution of the Law School, but it would be superior to the current draft.
Revision of the Faculty Handbook, from
Preface to the 2009 Edition (in part)
Proposals to revise the Handbook originating from the Faculty Senate or University administrators will be considered by a joint committee of the faculty and the central administration consisting of three faculty appointed by the Faculty Senate, at least one of whom must be a Faculty Senator, and two administrators appointed by the Provost. Arrangements must assure an expeditious meeting in cases of urgency. The chair of the Faculty Senate appoints the committee chair from the three faculty members. It is not necessary to convene a committee for the following cases:
•Revisions proposed and approved by the Faculty Senate, and approved by the Provost;
•Revisions proposed by the central administration, and submitted to and approved by the Faculty Senate.
All revisions require the formal approval of the Board of Visitors….