THE FACULTY ADVOCATE

NEWSLETTER OF THE UMKC CHAPTER OF THE
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS

October 2004                                    Editor: Patricia Brodsky                                   Vol. 5, No. 2


CONTENTS

From the Editor

Big Brother Says: You have Mail!, by Patricia Brodsky

Presentation to UMKC Faculty Senate, by Robert Popper

UMKC Computer Policy in Context, by David Brodsky

Faculty Raise Questions about New Promotion and Tenure Regulations, by Pat Brodsky

Thoughts on the New P&T Processes, by Charles Wurrey

Tenure, Grievances, and Faculty Governance: First Order of Business--Culture Change!, by Alfred Esser

The Purpose of Tenure, by David A. West

The Collected Rules of the University of Missouri System: Fable or Fiction?, by George R. O'Connor

Failure of the Grievance Process at UMR, by Clifton Merrow

Calvin without Hobbes on Oak Street, by Marino Martinez-Carrion

What's the Matter with the University of Missouri?, by David Ormerod

IFC Election Invalidated, Sent to Committee

News of the Chapter

Restructuring Questioned, by Patricia Brodsky

Copyright Notice

Dues Information

Back Issues




From the Editor

        Challenges to faculty governance and academic freedom in recent months have been impressive, even by UMKC standards.  We had planned for this issue of the Faculty Advocate to focus exclusively on the topic of grievances, but other matters have intruded.  We also report here on the egregious assault on privacy and freedom of speech via the University computer use policy, as well as the attempted intrusion into areas of faculty competencies and rights by the "Roles and Rewards Task Force" (see Brodsky , Wurrey below).  We will have further coverage of both these matters in future issues.

        Grievance is one of the areas in which the AAUP traditionally takes an interest.  It is a vital tool of the faculty for achieving due process when other means do not succeed, and as such protects academic freedom and the exercise of faculty governance.  A grievance by definition is surrounded by strong opinions and intense emotions.  In this issue we present a series of articles focusing on the shortcomings of the grievance process in the UM system.  Present and former faculty members address specific grievance cases at three UM campuses, two of them, at UMR and MU, still pending.  One contributor was involved in the negotiation of tenure regulations and faculty grievance procedures with the Curators.  Another discusses the arbitrary application of university regulations.  Chapter vice president Alfred Esser discusses recent changes in the grievance procedures on the campus at UM-Columbia--changes which will ultimately affect UMKC and the likelihood of a smooth, fair grievance process on this campus.

        Our contributors agree that due process is not regularly followed by the University in its dealings with faculty, staff, and students.  A particularly troublesome problem is footdragging by the university with predictably--and, in the opinion of our contributors--intentionally disastrous results for the grievants.  When he arrived at UM in 2003, President Floyd inherited a large backlog of complex grievance cases dating back to 1999.  At the January 31, 2003 IFC meeting, according the IFC minutes, "President Floyd asked that VP Lehmkuhle inquire about the status of any pending appeals and asked that a letter be written to each person on the list to provide a timeline of perhaps 60 days before a decision was rendered.  He expressed regret about this situation."  In May of that year the IFC minutes report that "his office has cleared the backlog of grievance communications.  They have responded to each and every grievance."

        This commendable concern is a refreshing change from UM practice.  Apparently, however, some cases were not dealt with (see Merrow).  Our contributors' solutions to the grievous grievance situation in the UM system differ, but almost all point out that due to abuses of the system within the university, the courts are frequently the sole remaining venue for obtaining due process.  Several suggest drastic changes regarding the definition of the University in Missouri law.  Most express a feeling of betrayal at the hands of the university.

        For the University of Missouri Collected Rules and Regulations (CRR) pertaining to grievances (chapters 370, 380 and 390) and to tenure (chapter 310) see http://www.umsystem.edu/uminfo/rules/content.htm#grievance and http://www.umsystem.edu/uminfo/rules/content.htm#tenure .  For the current makeup of the UMKC pool of Grievance Hearing panel members, go to the Faculty Senate website at http://sbs.umkc.edu/fsenate .  Please note, however, ten of these members' terms expired October 1, 2004, so the website should be updated soon.

        The pertinent AAUP policies on grievances can be found in AAUP Policy Documents and Reports, 9th edition.  They include cases of nonreappointment, sexual harassment, salary disputes, and access to faculty personnel files, and also recommend standards for university policies.  The AAUP states that a faculty member shall be able to "petition the elected faculty grievance committee... for redress ...  The grievance committee will consist of ... elected members of the faculty.  No officers of administration will serve on the committee" (29-30).  This emphasis on an elected faculty committee is central to the idea of faculty governance: it is the faculty who have the right and responsibility to hear and judge the grievances of their peers.  One important change in the proposed new UM grievance rules is that all members of the hearing panel pool are to be chosen by the faculty alone.

        The campus AAUP chapter can help by advising actual or potential grievants about their rights and the procedures that need to be followed.  We are preparing a list of area attorneys who are experienced in and willing to take grievance cases.



Big Brother Says: You have Mail!

by Patricia Brodsky

        Forty years ago, in October 1964, students at the University of California Berkeley, in response to a draconian university crackdown on information tables on campus, embarked on what was to become one of the seminal events of the 1960s and a landmark in the defense of free speech: the Free Speech Movement, or FSM.  Four decades later free speech is still in urgent need of protection on university campuses.  On September 27, 2004, the following logon notice appeared on a number of faculty, staff, and lab computer screens connected to the UMKC network (MAC users and those with older PC systems were not affected).
        This computer system and/or network is the property of the Curators of the University of Missouri.  It is for authorized use only.  Users (authorized or unauthorized) have no explicit or implicit expectation of privacy.
        Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected and reported to authorized site, government, or law enforcement personnel, as well as authorized officials of government agencies, both domestic and foreign.
        By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection, and disclosure at the discretion of such personnel or officials.  Unauthorized or improper use of this system may result in civil or criminal penalties and administrative or disciplinary action, as appropriate.  By continuing to use this system you indicate your awareness of and consent to these terms and conditions of use.
        Log off immediately if you do not agree to the conditions stated in this warning.
        Users were instructed to click "OK" indicating their consent to these conditions.  Otherwise they could not continue their logon, and were denied access to their professional files and e-mail--in effect, they were prevented from doing their jobs.

        A number of faculty members, above all Gary Ebersole, recognized the threat to freedom of speech, privacy, and academic freedom, and responded immediately.  The following timeline of events, prepared by Ebersole and Pat Brodsky, gives a picture of the speed with which events developed.

September 28
        * Ebersole leaves voice mail message for UMKC CIO Mary Lou Hines seeking information on the notice, and informs AAUP officers and Jakob Waterborg of concerns over privacy.
        * Waterborg in his capacity as Senate Chair sends e-mail to Hines and Information Services Director Tom Brenneman seeking information on the logon message and requesting their appearance at the next Faculty Senate meeting.
        * AAUP chapter president Pat Brodsky solicits feedback from national AAUP legal counsel.

September 29
        * Ebersole e-mails Hines and President Floyd with questions and concerns.

September 30
        * AAUP secretary Karen Bame alerts chapter membership to developments
        * Provost William Osborne e-mails Ebersole, calling the message in the login screen "a summary statement of the Collected Rules and Regulations... 110.005 paragraph A, which is 4 years old," not "some new policy dreamed up by IT or a response to Terrorism."  Osborne asserts university-provided e-mail is not a property right and never has been.  He cautions against sparking too broad a debate on these issues: "While such a debate may be interesting it cannot produce any useful outcome to our current situation."
        * Ebersole sends reply "respectfully disagreeing" about the usefulness of discussing these issues on campus.
        * President Floyd replies to Ebersole, "I will have to look into this matter; however, this message was not authorized by me."
        * Pat Brodsky forwards response from AAUP counsel Donna Euben to Waterborg, Ebersole, AAUP officers, and several professors in the Law School

October 1
        * Ralph Caruso, VP for information Systems, UM System, e-mails Ebersole: "President Floyd asked me to contact you on this issue.  This was not cleared through my office or to the best of my knowledge with General Counsel's office.  I am attempting to contact Mary Lou Hines, UMKC CIO about this issue.  Thank you for bringing it to the President's attention."
        * The notice is removed from computer log-in.

October 2
        * Provost Osborne forwards selected parts of e-mail correspondence from Chancellor Gilliland to Caruso.  Caruso offers a mea culpa: "We (UM System and UMKC) blew it."  The wording of the log-in message had, according to him, been cleared by Legal at UM System, although it was certainly not the type of message that should be sent to users.
        * Gilliland chastises Caruso for communicating directly with a faculty member before informing her.

October 5
        * Faculty Senate meeting, at which Provost Osborne and CIO Hines answer questions about the events.  Osborne apologizes for the wording of the message and distributes copies of CRR 110.005, official university policy on computer use.
        * Senators and attending Faculty members strongly object not only to the message but to the policy that underlies it.  Removing the logon message is public relations.  It is the policy represented by the message that is reprehensible.
        * Bob Popper, UMKC Law School, presents eloquent summary of the threats to first and fourth amendment rights and academic freedom (see below).
        * Immediate results of the discussion include plans to form Senate/faculty ad hoc committee to study CRR 110.005 and privacy policies at other universities which are much more focused on protecting faculty and other user rights, and to come up with revisions or possible new policy.  Provost Osborne offers to take faculty concerns to Curators.

        As this timeline shows, concerted faculty action was able to accomplish limited results rather quickly.  This should be a lesson for the future--but the battle has just begun.  Judging from the response, the issue strongly engaged many on campus.  The principles under assault, besides privacy, freedom of speech, and academic freedom, are freedom to dissent and freedom from self-incrimination.  Specific potential danger areas include the threat to lawyer/client, doctor/patient, and professor/student confidentiality; the possibility of unnamed outsiders deciding a research topic or a conversation was criminal, pornographic, terroristic (we recall the ignorant but no less frightening attack on the work of Harris Mirkin, Sociology, several years ago); the threat to sensitive or unpublished research; and the chilling effect on speech critical of administrative policies, particularly for vulnerable staff and non-tenured faculty.  The knowledge that one's e-mails to colleagues can be and are being "intercepted, monitored, recorded," etc. is intentionally intimidating.

        Other questions include: who decides what "unauthorized or improper use" is?  Who decides which persons' files will be monitored, and on what grounds?  What are the limits of these actions?  When are "civil or criminal penalties and administrative or disciplinary action" deemed "appropriate," and by whom?  As Ebersole pointed out, the most significant example of property rights trumping constitutional rights was in the arguments in support of slavery at the time of the Civil War.  This issue is at bottom a clash between property rights--the basis for the policy is that the University owns the computers and everything on them--and constitutional rights: to freedom of speech and privacy, and against unreasonable searches and seizures by governmental officials.

        The following presentation was made by Bob Popper at the Senate meeting.  His remarks provide a good summary of the situation, and his suggestions are well worth thinking about.  David Brodsky then offers some ideas about larger contexts.



Presentation to UMKC Faculty Senate, October 5, 2004

by Robert Popper

        Jacob asked me to come today and speak about the notice we received via our computers, that the University will be "listening" in on us--reading our messages--those we receive and those we send.  These unnamed people will be doing it secretly.     We get no notice before, during, or after this spying.

        Spying is what it is--or snooping.  Government snooping, because our employer--UMKC--is a state University, part of the state University system.  The actions against us are limited by the Missouri and the United States Constitutions, which preserve our liberties--as against state infringement and, of course, state and federal law--and also the rules and regulations of the University.

        The notice we got states that any use we make of the computers may be seen by the UMKC officials.  Or, in the words of the notice, our uses of the system "maybe be intercepted, monitored, recorded, copied, audited, inspected, and reported to [the] government, and law enforcement personnel."  If you want to use the system, you must consent to this.  Otherwise, log off.     That's it.  And I suggest to you that it is an outrageous intrusion, a broad based invasion of the rights of all University personnel.

        Of course, UMKC has an interest in insisting that its employees behave lawfully on their job and don't use University facilities or equipment for improper or illegal purposes.     But a legitimate goal doesn't justify illegitimate means.  We shouldn't use our offices (owned by the University) to conspire with others to blow up a University building.  Does that mean the University can put a surveillance camera or listening device in the ceilings of our offices?  We shouldn't use our telephones (UMKC owned) to plan a murder.  So can UMKC tap our phones without court approval?  Can our sealed letters be cut open, read, and copied?  Can our desk drawers and filing cabinets be searched and the contents seized?  You get the point.  Because we use University owned property such as offices, phones, stationery, the mail room, desks, file drawers, computers, are we deprived of all privacy rights in connection with these uses?

        The answer is clearly, "no."

        It might be premature to prepare a carefully researched legal brief on this.  That's up to you.  But I can say clearly that privacy is protected by the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures.  And the American way is for government to ensure that we will be secure against search and seizure, unless in a particular instance there is good reason to suspect that an individual is engaging in criminal behavior.  In such a case, government can obtain a warrant from a court authorizing a search and seizure.     That's the normal and accepted procedure.

        There are, however, exceptions, and the workplace poses special problems.  There is some indication in court decisions that an employer who gives notice to employees that they have only limited privacy on the job will, in effect, eliminate or limit the employee's expectation of privacy, and that no warrant is needed when the employer acts reasonably in light of the employer's interests and conducts a work-related reasonable search.  A lot will depend on the stated, official policy the employer puts into place.  How detailed is it?  What does it cover (e.g. all use of computers, e-mails included)?  Does the University policy apply to only work-related reasons unrelated to criminal conduct?  If so, there is more leeway for employers to intrude.

        In analyzing it, we can break it down into two parts.     First, do we have a reasonable expectation of privacy in the use of the computers?  I suggest we do.  If we do, then secondly, is the University acting reasonably in intruding on that privacy in the way it has gone about trying to preserve its interests?     I don't think it has.  In this wholesale-type authority, it allows itself to act without any guidelines or rules to ensure that its discretion is exercised fairly and reasonably.

        The University setting, it seems to me, strengthens the case for preserving and honoring individual privacy, since employees, especially faculty, are often engaged in the type of work which is enhanced by maintaining privacy and confidentiality and, in many cases, such privacy and confidentiality is essential to our work.  Computers are commonly used in a way that absolutely requires privacy and confidentiality.  Lawyers communicating with clients, doctors with patients, etc.  Spying on those relationships is completely unwarranted and reprehensible.  Research and grant work may have similar concerns. 

        I mentioned the Fourth Amendment.  Of course, there is also the First Amendment, which guarantees freedom of speech and press and thought.  UMKC's policy on computer snooping raises serious issues on First Amendment grounds.  It is a chilling action on this Constitutional freedom, which protects us in what we say and what we don't want to say publicly, and on academic freedom.  And there is the Constitutional protection of our liberty under the due process clause of the 14th Amendment.

        Legal niceties aside, isn't there something obnoxious and insidious about this University action?  The University is acting as "big brother," treating its faculty and staff as pawns, whose personal integrity can be compromised and who are not to be trusted.  We've become untrustworthy and must be monitored, surveilled, scrutinized.

        The University's Rules and Regulations (Section 110.005) have an "acceptable use policy" governing computers.  It allows inspection of personal electronic information where

        1) It is necessary to maintain or improve functioning of all University computer resources;

        2) Where there is a suspicion of misconduct under University policies or violation of law; and

        3) Where it is necessary to comply or verify compliance with federal or state law.

        Even this is questionable.  It may be vulnerable to legal challenge in a particular case.  But it does not provide for the carte blanche snooping that the recent notice we got allows.

        Why did the University take this action?  We should find out the exact reason for this drastic step.  What justifies it?  At whose prompting was it adopted?  Was a legal memo prepared endorsing it?  If the University's aims were legitimate, could they have been achieved by less intrusive means?

        Our first step should be to get the University to officially respond to our inquiries and concerns.  We should adopt a resolution objecting to this surveillance and calling for the University to explain its justification for what is really a wholesale invasion of, and a heavy-handed intrusion on, the rights of its employees.

        A final thought: maybe this incident is a good thing.  It has brought to light an important issue.  The courts don't like to interfere with educational policy and some lower court decisions are unfavorable to computer related privacy interests.  But the University is not bound by court decisions which don't go far enough in honoring privacy.  The University of Missouri can and should go farther than the law requires and protect faculty and others employees more fully, i.e., they can take the high road and not the low one. 

        We should insist on that.  On intelligent, carefully circumscribed, fair rules and regulations respecting individual privacy in the use of computers.  A more intelligent approach than the current one is essential.  And the final rule ought to be a consensus product arrived at with faculty and staff input.

Robert Popper is Professor Emeritus and Dean Emeritus, UMKC School of Law



UMKC Computer Policy in Context

by David Brodsky

        The notorious logon message and the underlying university policy it represents, requiring UMKC computer users to passively renounce their constitutional rights and academic freedom, should be understood in several broader contexts.

        Gary Ebersole raises the issue of property rights as the basis for ante-bellum arguments defending slavery, suggesting that if the the Curators (or the administration) own everything that faculty, students, and staff place on their personal computers, they effectively reduce the university community to the condition of slaves.  From another perspective Bob Popper concurs by using the term "pawns."  However, federal legislation passed over 20 years ago permits universities (i.e. administrations) to claim ownership of intellectual property created by faculty who use university facilities and equipment.

        In the wake of that legislation, there has been a coordinated national effort to expropriate the faculty's intellectual property--courses, research, publications, discoveries, inventions, notes, correspondence, etc.  Its aim is to fill administrative coffers with revenue from potential commercial applications, through institutional ownership of patents and copyrights (Lawrence C. Soley, Leasing the Ivory Tower: The Corporate Takeover of Academia [Boston: South End P, 1995]).  One attempt to commercially exploit faculty intellectual property, serving the interests of administrations and multi-national computer industry giants, has been through electronic delivery of courses, or so called online distance education (David Noble, Digital Diploma Mills: the Automation of Higher Education [NY: Monthly Review P, 2002]).  Universal online education was intended to replace 1) professionally trained faculty with low paid "course managers" possessing minimal intellectual and disciplinary preparation; 2) effective face to face learning between teacher and student with atomized, anonymous, and alienating electronic "interaction"; and 3) accredited academic institutions with substandard "digital diploma mills."

        Commercial online education has been a flop as a cash cow (rescued by the Pentagon as buyer of last resort--Noble, pp. 85ff), and income from university held patents, copyrights, and online courses has in most cases been rather modest.  Failed economic undertakings, however, have not discouraged the drive for political control.  The pathological police state environment manufactured by the Patriot Act and related executive orders and legislation is a war of government terrorism against the people of the US and the Bill of Rights.  The foundation of the police state is the pretext of "security," which controls people through intimidation and through fear of one's neighbors and colleagues.  In the workplace, "security" (for management) translates into surveillance of the workforce, often enlisting employees' personal computers as company spies.  The UMKC logon message declares property rights to be the rationale for company spying.  Threats to report the contents of personal computers to police agencies essentially criminalize the entire UMKC community of computer users.  Such a policy violates the basic constitutional principle of US jurisprudence, which assumes innocence, not to mention the basic institutional principle of academic freedom.

        Policies of this sort, public disinformation notwithstanding, are not standard practice even in the private corporate sector--to which a public institution like UMKC does not belong.  Normal business policy is to restrict use of computers at work to business purposes and to prohibit personal use.  Businesses which do indulge in surveillance of employees, in order to maintain a docile (and demoralized) workforce, have been persuaded to change their policy by labor unions, or through other concerted action by workers (see Adria Scharf, "Scripted Talk," Dollars and Sense [September-October 2003]: 35-37, 53).

        The Gilliland administration's policy of harnessing personal computers to administrative surveillance should not come as a total surprise.  When she was provost at Tulane, Gilliland had a history of snooping on the university community ("attempted entry into restricted listservs", see D. Brodsky, "Tulane University, testing ground for the UMKC Blueprint," Faculty Advocate 3.2 [Dec. 2002]) .  In addition, Tulane faculty privately told us that they avoided using their office telephones because they suspected their conversations were being tapped.

        The Tulane administration is also involved in a continuing battle with the faculty over the ownership of intellectual property rights (ibid).  The UMKC logon message, which stressed surveillance based on administrative ownership, may have been a trial balloon for a future claim stressing administrative ownership in itself.  Like Tulane and other institutions, UMKC may be preparing to thoroughly expropriate the faculty's rights to ownership of their own course and research materials, because the faculty use university facilities and equipment.  What could not be stolen through the ploy of online education may yet be filched through the ploy of "security."

        The broadest context of the logon message is the international war on public higher education, which is being fought at UMKC on many fronts.  For a brief summary of reactionary war aims and their intended consequences see D. Brodsky, "The War on Public Education in Europe," Faculty Advocate 4.3-4 (April 2004) .  The rejection of administration computer policy by the UMKC community, led by the faculty, and the rapid removal of the offensive logon message by its perpetrators, is a good start.  Demonstrating the effectiveness of united community action, in the short term it lays a foundation on which to build a strong resistance against the numerous assaults which the UMKC community will face in the immediate future.  It also augurs well in the long-term campaign to roll back the right-wing offensive against the academy.



Faculty Raise Questions about New Promotion and Tenure Regulations

by Pat Brodsky

        Vice Provost for Faculty Development Jeff Thomas recently presented to the Senate and to the Council of Chairs the recommendations of the "Roles and Rewards Task Force" for changes in promotion and tenure procedures.  A lengthy discussion of the matter arose at the October 12 meeting of the Arts and Sciences faculty.  Discussion was hampered due to the absence of the full report, but enough was known thanks to a summary of the changes to raise misgivings about a number of points.

        Faculty at the meeting objected to the fact that the non-elected "task force," which grew out of the old Blueprint-driven "Pride Committee," is making policy without consultation with or approval by the faculty.  But the conduct and control of the promotion and tenure process is a fundamental faculty responsibility.  Secondly, there were concerns about the break with traditional criteria, which have formed a useful and fair basis for promotion and tenure.  Among the proposals was the intention to "[put] more weight on community service," and to [put] more weight on [the] 'predictive future' of the candidate."  Fears were raised that these changes will weaken the very nature of tenure, by diluting the requirements and endangering the quality of the faculty over time.  Without seeing the specific wording and the rationale for these and other changes, faculty are understandably wary.

        Furthermore, several changes in the procedures have already gone into effect, without a discussion, let alone a vote, by the faculty.  These are contained in a separate document, the "Clarification on the Promotion and Tenure Process" sent by Vice Provost Thomas to the chairs on September 29.  Among these new policies is the requirement that in all current promotion and tenure cases a department must now provide the candidate with the breakdown of the faculty vote and a copy of the chair's letter to the dean.  The dean is required to show the candidate his/her own letter.  Among the possible adverse results of such a policy that faculty raised at the A&S meeting are a chilling effect on honesty and specificity in departmental deliberations and letters, which will no longer be confidential, and a destructive effect on collegiality as votes on colleagues become public knowledge.

        The A&S faculty passed a motion to ask the Steering Committee of the College to draft a protest letter against the unilateral actions of the "Task Force."  The College Senators were also requested to have the issue placed on the Senate agenda.  In the coming weeks faculty will be studying the full report and the "Clarifications" and discussing their ramifications.  The Faculty Advocate will be addressing the matter again in the near future.  There is a debate among faculty, and among the members of the "Task Force," about specific recommendations.  In the meantime, as the first contribution to the debate, we publish below a commentary on the "Clarifications" by Associate Dean Charles Wurrey.



Thoughts on the New P&T Processes

by Charles Wurrey

        First of all, let me state up front that I applaud the efforts to make the Promotion and Tenure process more open and transparent.  However, I believe that the pendulum has perhaps swung too far in this direction, with implications which I will discuss below.

THE GOOD

        There are two aspects of the new guidelines which I especially like.  (1) Notifying all P&T candidates of decisions made at all levels--whether this decision is negative or positive--is a very good idea.  In the past, I have had to tell candidates that if they heard nothing, that was actually good news ("No news is good news"), because they would hear for certain only if the decision was negative.  Providing this information in cases where positive recommendations are made is relieving to the candidates, who are on tenterhooks for nearly a year as it is.  (2) Secondly, P&T candidates should have the opportunity to approve possible external evaluators, or at least screen those who might not be completely impartial for one reason or another.  This is nicely placed in the new procedures, as it should be.

THE BAD

        Two things should be spelled out clearly in these new procedures.  (1) While a CV is said to be "optional," I believe it should definitely be included in the candidates' portfolios.  Frequently, this may be the first thing that external evaluators look at--especially since they are practiced in reviewing CV's in many other situations.  (2) In addition, it should be made clear to the candidates that they can update their portfolios during the review process with new information--particularly new information that would be viewed favorably, such as a grant awarded or a publication accepted.

 THE UGLY

        1) Notifying the candidates of the actual vote tally on their tenure and/or promotion decisions--especially positive [but not unanimous ones--Ed.]--can only be detrimental.  At the least, it can lead to invidious speculation ("Which of my colleagues may have voted against me?"), needless rancor, a loss of collegiality, and possible retaliation (ranging from simple snubbing to outright physical violence).  It will also have an adverse effect on P&T committee members, Chairs and Deans.  Frankness, candor, openness and honesty may "go out the window" in the evaluation process when those doing the reviewing realize that their comments and votes can be made known to the candidate.  The long-term upshot of this is that it may be easier to pass mediocre candidates through the system simply to retain harmony within an academic unit, rather than suffering the possible consequences of a more difficult negative decision.  The Collected Rules and Regulations of the University of Missouri [CRR 320.035A.4.b] only require that committees, chairs and deans "communicate their recommendations" to the candidates and allow them adequate time to respond if they so choose.  The Collected Rules say nothing about communicating the vote or sharing the actual written recommendations.

        2) Making the actual written tenure and/or promotion recommendations available to the candidates will have the same effects as making the vote tally known, and could lead to increased litigation (even in the case of positive recommendations) as well.

        3) All this vests far too much power in the hands of the campus P&T committee, the committee farthest removed from the discipline itself.  The campus P&T committee is also the only place in the new P&T review process where the vote and the recommendation do NOT have to be "communicated" to the candidate (just to the Provost).  Local control of faculty quality--if not implemented properly during the annual reviews and third-year review--could be lost for the reasons mentioned above.

Charles Wurrey is Professor of Chemistry and Associate Dean for Administration



Tenure, Grievances, and Faculty Governance: First Order of Business--Culture Change!

by Alfred Esser

        In his insightful article on the "Purpose of Tenure", David West remembers how difficult it was in the mid-1960s to negotiate a grievance procedure with the Curators for the faculty of the University of Missouri.  After 14 years he and his colleagues finally succeeded, and on May 25, 1979 the Board formally adopted the procedures that now apply to all four campuses.  [The Curators' ratification of grievance procedures occurred in the course of UM systemwide reforms negotiated with the AAUP.  Reforms were a condition for AAUP action to remove MU from censure.--Ed.]

        Clear and just grievance procedures are a necessity to preserve and defend tenure and, therefore, to assure the faculty the ability to participate in shared university governance in a meaningful way.  Nowhere in the Missouri System are faculty tenure and faculty governance under stronger attack than here at UMKC.  The changes to the current policies on Promotion & Tenure recommended by the Task Force on "Faculty Roles and Rewards" make this abundantly clear.  Redefinition of scholarship as proposed will lead to lower standards and the possibility of rewarding candidates with lesser credentials but with stronger ties to the administration.  Conversely, the inclusion of criteria such as "community engagement" or demonstrated support of administration-defined core values, which cannot be evaluated by peer review, will facilitate the process of driving out academically competent faculty whose only shortcoming is that they are critical of current administrative fads.  Clearly, UMKC faculty members need strong tenure rules and grievance procedures more than ever.

        It is indeed astonishing how different UMKC is from UMC when it comes to faculty effectiveness in faculty governance.  West writes, "On several relatively recent occasions, in fact, a vote of 'no confidence' by the faculty has ended an administrator's career on this campus."  One could only wish that this were true here.  A vote of no confidence in Chancellor Gilliland by the faculty of the School of Biological Sciences was completely ignored by UM President Pacheco and the Curators.  Actually the reverse is the obscene rule here at UMKC: unanimous support by the faculty can lead to the dismissal of a dean, as Professor Martinez-Carrion points out in his article.  Another essential standard that West mentions, the requirement of academic promotion and tenure "to pursue an administrative position or advance through the ranks to higher administrative authority," does not exist at UMKC.  Chancellor Gilliland did not receive tenure and promotion during her first academic appointment and it is unknown whether later on a departmental faculty committee ever evaluated her for tenure based on teaching and research accomplishments.  It is not surprising, then, that her first appointee for a deanship to lead a new school at UMKC was an assistant professor who had not passed the rigorous tenure evaluation but compensated for it by being one of her strongest supporters in "transforming" UMKC.

        Despite all the hard work that West and his colleagues at UMC put in to formulate strong grievance procedures, the effectiveness of these procedures during the past years leaves much to be desired.  As usual, the "devil is in the details".  It is not the procedures that are at fault but the "devilish" lack of oversight by the Curators and UM presidents, and the ease with which administrators can ignore these rules with impunity.  A recently released study by the UMC Faculty Council reveals that eleven cases out of thirteen violated the requirement, stated in the Collected Rules and Regulations [CRR], to complete the process within 180 days.  Another thirteen never made it to the hearing stage.  After many years of trying to force the UMC administration to speed up ongoing grievance cases and convert these procedures into a useful vehicle for conflict resolution, the UMC faculty has now voted on new procedures that await approval by the Curators.  In my view, it is unfortunate that in this new version the UMC faculty agreed to prolong the maximum time for completion to 285 days, ostensibly because experience had shown that the previous deadline was seldom met.

        Prolonging the deadline weakens faculty grievance cases.  Faculty members who are protected under federal EEO rules or by the regulations of the Missouri Commission on Human Rights have only 180 days to file a complaint with these agencies.  Other agencies have even shorter time periods for filing and when such deadlines are missed the University Counsel can use this to request dismissal of such complaints on technical grounds, as the case of MacDonald vs University of Missouri vividly demonstrates [http://www.oalj.dol.gov/public/wblower/decsn/90era59a.htm].

        In this case a UM instructor claimed that she was discriminated against by the university because she reported violations of the Energy Reorganization Act involving radioactive chemicals.  Under the whistleblower provisions of this Act a complaint must be filed within a 30-day period, which she missed because the University's counsel, Mr. Philip Hoskins, suggested to her "she might want to first exhaust her available remedies through the University grievance procedure".  Fortunately for the complainant, when the University then tried to have the case dismissed because it was filed too late, the judge offered this admonition: "I think he [Hoskins] failed to take due care in a situation that required extreme care, knowing that he was a professional talking to a nonprofessional."

        This case is an unambiguous reminder that university counsel works for the benefit of the Curators and not the faculty or employee.  Fortunately, the new UMC grievance procedures allow the grievant to be accompanied by an attorney and to be advised on any matter at any stage of the process.  Another significant improvement is the provision that the Faculty Council, and not the chancellor as is presently the case, will select the Investigating Officer, who supervises the proceedings, although the chancellor retains veto power.  Furthermore, a grievant cannot be dismissed during the process and remains employed with appropriate salary reimbursement.  One of the most significant provisions in the new procedure is the fact that the chair and the thirty members of the Grievance Committee, from which the Hearing Panel members are to be selected, are all chosen by the Faculty Council without interference from the chancellor.  Whether the Curators will actually consent to these new procedures and how long it will take remains to be seen.  The UMC faculty approved the new rules with a 91% majority on May 20, 2004 but they did not appear on the agenda of the last two Board of Curators meetings.  One can only wonder why.

        What is the relevance of UMC grievance procedures for UMKC?  The new procedures will be valid for a three year trial period at UMC only, although the IFC and Vice President Lehmkuhle appear to favor uniform rules across the system.  The current procedures apply to all four campuses and the problems faced by UMC faculty are, therefore, the same here.  However, our situation is worse, because for years the UMKC Faculty Senate has not followed the rules.  As a consequence we have a Grievance Committee in place whose members received their appointments from the chancellor.  The rules state unambiguously that the chancellor appoints half of the panel and the faculty governing body the other half.  To his credit, the current Chair of the Senate is aware of this violation and has asked senators in the units to seek candidates for appointments.  Unfortunately, he still believes that the deans in the units need to be involved in the selection process, and that even a senate-selected appointment becomes effective only "if confirmed and appointed by the Chancellor."  When the Inter-campus Faculty Council [IFC] debated the merits of the revised UMC procedures in May 2003 he opined that UMKC has not had some of the problems that MU has.  How did he know that UMKC did not have problems similar to UMC?  Not only did Chancellor Gilliland select the grievance panel, she also appointed her Associate Provost as the Grievance Officer and chair of the campus-wide Faculty Promotion & Tenure Committee.  She is known for rejecting faculty for membership on the P&T Committee when they are openly critical of her policies.  Thorough analysis of the current grievance procedure by a task force in Columbia yielded one clear result: one of the biggest obstacles was the lack of confidence by the faculty in the fairness of the process.  What can UMKC faculty expect when the grievance procedures are totally controlled by the Chancellor and the Senate Chair plays along?

        One of the many valid concerns raised by West is the loss of institutional memory due to large-scale retirements of senior faculty in recent years.  Indeed, the University is losing regular faculty at an astonishing rate.  The minutes of the IFC meeting of May 17, 2004 cover discussion with VP Lehmkuhle and reveal that "some 50% of regular faculty in the UM System in 1999 are no longer here in 2004 due to retirements, moves or not being granted tenure."  However, are the VERIP cycles really the major reason for this exodus?  In my unit--the School of Biological Sciences, with thirty-three regular faculty lines--only two took VERIP among the thirteen regular faculty who resigned since April 2000.  The vast majority left because of Gilliland's policies, and with them went over $2 million in yearly grant funding.

        Why do people vote with their feet rather than proclaim UMKC to be their workplace of choice?  In an article entitled "From Financial Captivity to Freedom.  UMKC is reinventing itself as a quantum university. First order of business: culture change" [http://www.universitybusiness.com/page.cfm?p=321], Chancellor Gilliland explains how she tracks the progress of the transformation process, and specifically how she assesses her success in shifting the culture at UMKC.  Indeed there has been a change in culture, as demonstrated by her relentless usurpation of tenure and grievance processes at UMKC and her control of the membership of virtually every "governing" committee.  With respect to faculty governance the culture has been reversed, it now leads to captivity and certainly not to freedom.  Thus the Faculty and its elected representatives should continue to demand that the university administration adhere to its own rules and respect faculty rights, no matter how badly the deck is stacked against fair and sincere grievance procedures.

Alfred Esser is a Professor in the School of Biological Sciences, and Vice President/Treasurer of the UMKC-AAUP



The Purpose of Tenure

by David A. West

        Thirty years ago, several tenured and untenured MU faculty members were fired for participating in a national protest against the Vietnam War.  The Faculty Council and most MU faculty members supported those colleagues.  The Board of Curators stood firm, however, and MU was censured by the AAUP.  After a decade of negotiations by both faculty and administrators, the Board of Curators finally approved new tenure and promotion policies and procedures, including a new tenure appeal process.  This is the background that is significant to me as I perceive and evaluate the purpose of tenure.

        I was a member of the MU faculty during those difficult years, and one of the faculty representatives who negotiated the new tenure and financial exigency agreements that were ultimately acceptable to the Board of Curators and the AAUP.  During that same period, the Faculty Council tried for 14 years to negotiate a faculty grievance procedure, which was finally approved by the Board of Curators.  I was involved also in resolving the first formal faculty grievance.  Because of these personal experiences, perhaps, tenure and faculty governance seem more important to me than to many newer colleagues.

        In recent months, the debate concerning tenure has resumed with some vigor.  The critics of tenure appear to be more numerous and vocal.  Although some critics are external to the campus, there also appear to be two or more perspectives on campus that reflect quite different views of tenure.  Some people seem to view tenure as principally an issue of economic security.  A few suggest that tenure is designed to protect incompetent faculty.  Newer colleagues seem more likely to take tenure for granted and to perceive less breadth in its purpose.  Many newer faculty members seem more oriented toward their disciplines and less committed to their institutional employer of the moment.  Consequently, they may have less interest in the faculty rights and governance that tenure provides.

        Perhaps because we were here before we had some of these rights, tenure is especially important to many senior faculty.  Within recent days, however, 150 more senior MU faculty have announced their intent to retire.  These retirements will shift faculty numbers even further toward newer, untenured and non-tenure track faculty.  With the hope that added explanation of our institutional background might shed a somewhat different light on why tenure and governance are so highly valued by some of us, I want to share my perspective of the rights, privileges and obligations of tenured faculty members.

        I believe tenure provides academic freedom, enables faculty governance, and requires professional responsibility.  Tenure confers the right and authority to express our views, even when they are unpopular, without undue fear of administrative reprisal.  Academic freedom applies in the classroom, in research or print, and during faculty deliberations.  Along with these rights, we incur substantial obligations to participate actively in faculty governance, we accept accountability for our academic behavior, and we agree to conduct and review ourselves with professional responsibility.

        Academic freedom to experiment in the classroom and laboratory is crucial.  As we all know, however, new course preparations require extended amounts of time and effort that may be unwise prior to tenure.  Untried and unpopular teaching methods usually should await tenure, also.  Supervision of doctoral dissertations is extremely time consuming, perhaps especially for a new, untenured faculty member, and may be very costly, career-wise.  Most textbooks involve a four to five year commitment of time and energy.  Some take longer, and many are failures.  During such extended periods, of course, research activities and the preparation of journal manuscripts frequently suffer.

        Academic freedom to pursue interesting research is equally important.  The freedom to conduct controversial research is only a small part of that purpose.  A more significant component is the opportunity to investigate unpopular and unexplored areas of research.  Although we, as untenured faculty members, may have a serious interest in resolving major social problems of great national need, the chance of any success is so small that we can hardly afford to bet our academic lives on such projects.  Upon receipt of tenure, on the other hand, if we still have the same interests, we then can assume the risk of tackling really difficult, longer-term research projects that might not produce any publishable findings.  Only with tenure, can we take the chance of such failures.

        Finally, tenure and promotion are important as indications of professional growth and stature.  If a faculty member has a desire to pursue an administrative position or advance through the ranks to higher administrative authority, academic promotion and tenure are virtually essential.  Similarly, national recognition--for purposes of appointment to grant application evaluation teams, election to professional offices, or serving on accreditation teams--usually requires tenure and promotion because of the professional stature they imply.  In these capacities, we establish and implement educational policies that require a more thorough understanding of the integrated roles of teaching, research and service.

        To some extent, of course, one purpose of tenure is economic security, because fear of reprisal is very serious.  Moreover, expressing an unpopular view in a non-academic organization can and often does result in termination.  Faculty governance and corporate governance, however, differ significantly.  To suggest that job security is the principal purpose of tenure is to badly miss the real point of the issue.  Tenured faculty members are first and primarily concerned about where their university is heading and who will determine its goals, objectives, strategies, and educational policies.  A more appropriate comparison may be the determination, implementation and review of medical policies within a hospital; no hospital administrator does this alone.  We truly believe in faculty governance at MU.  We do not believe academic concerns and decisions should be left to our administrators alone.  On several relatively recent occasions, in fact, a vote of "no confidence" by the faculty has ended an administrator's career on this campus.

        The Board of Curators, like the trustees of other universities, has delegated primary authority to the faculty for many academic issues, including standards of performance, research guidelines, curriculum, courses, student admissions, graduation requirements, tenure, faculty promotion and termination, doctoral dissertation supervision, faculty committee structure, and faculty responsibility.  Additionally, the faculty shares authority with the campus administration on matters of students' rights, the calendar, and the application of criteria affecting the professional standing of faculty members.  We also have advisory responsibility on resource allocation, selection of academic administrators, and the use of physical facilities.

        Only tenure track faculty can vote on these faculty matters. Only tenured faculty can vote on motions to tenure, promote, or terminate faculty members.

        The MU faculty, in turn, has delegated much of its authority to the Faculty Council as the result of a hard-fought victory over tremendous administrative opposition.  Nonetheless, the Faculty Council must always act for and report to the faculty as a whole.  It takes only 25 faculty signatures to require the Chancellor to call a special meeting of the entire faculty within 10 days to challenge anything the Faculty Council has done or failed to do.

        In my judgment, the principal purpose of tenure is the protection of academic freedom.  Moreover, the primary risk to a faculty member is internal, not external.  The only time(s) I might have been fired from the MU faculty were over political issues.  Those issues, however, were not matters of great concern to any legislator, newspaper editor, or voter.  They were disputes over internal policies.  At least one of my previous Chair(s) or Dean(s), I suspect, would have fired me because I voted the wrong way.  The ultimate purpose of tenure, therefore, is to enable us to be active, participating members of this academic family who cannot be removed by administrative edict, regardless of whether we support or oppose the winds of power that happen to blow at any particular time.

        To an untenured faculty member, I would say this: The decision by your colleagues to tenure you is an expression of their belief that you should be a part of this academic family exercise for the rest of your academic life.  The rights conveyed by tenure and the privileges and responsibilities "appertaining thereto" require professional sensitivity and behavior.  Our academic freedom--faculty rights and faculty governance--is worth preserving.  We preserve our academic freedom only through accountable governance.

David A. West is Professor of Finance, University of Missouri Columbia.  His article is reprinted from the UMC Faculty Handbook with permission of the author



The Collected Rules of the University of Missouri System: Fable or Fiction?

by George R. O'Connor

        The University of Missouri is "a part of the body politic of the State of Missouri," according to Chapter 172 of the Revised Statutes of Missouri (R.S.Mo.).  See http://www.moga.state.mo.us/statutes/c172.htm ; and 172.020 at http://www.moga. state.mo.us/statutes/C100-199/1720000020.htm .

        The effect of the statutory designation of the University as a part of the "body politic" of the State of Missouri is that any action (or failure to take action) on the part of the Curators of the University of Missouri, their employees and agents, is an action of the Executive Branch of the government of the state.

        The legislature of the State of Missouri exempted the University of Missouri System from the state's Administrative Procedure Act in 1994.  See 536.018 R.S.Mo.  The legislature implemented this law to streamline "grievance procedures" where the University has established rules that protect the rights of the employees and all others who are subject to those rules.
[S]uch institution has established written procedures to assure that constitutionally required due process safeguards exist and apply to a proceeding that would otherwise constitute a "contested case" as defined in section 536.010.
        The University of Missouri posts its rules on the World Wide Web (where they may be easily changed without notice) [see http://www.umsystem.edu/uminfo/rules/content.htm].  In theory, the faculty, staff and students of the University of Missouri System may try to apply the rules to protect their jobs, research, tenure, and status.  In reality, the rules are rarely applied.  Absence of candor is the usual response to any attempt to apply the Rules.  In the recent lawsuit, Lord v. Curators, (U.S. District Court for the Western District of Missouri Case No. 03CV0992), a law librarian brought suit for gender discrimination.  Prior to her lawsuit, Ms. Lord filed a grievance.  Her grievance was delayed and, eventually, denied by the simple expedient of the Campus EEO Officer dismissing the grievance.

        When a grievant misses a deadline the Collected Rules provide for a "default"--a win by the University due to the lack of diligence on the part of the grievant.  In the Lord matter, the University missed deadline after deadline--and ignored the argument that Lord had "won" due to the University's default.  Only after the lawsuit had been filed did the University's Counsel (in this case, Mr. Phillip Hoskins) respond to this and other lapses in the application of the Collected Rules--he said, "we applied an unwritten rule" to Ms. Lord.

        Over and over the University applies the Collected Rules when it suits the interests of the administration and, where the Rules do not result in an outcome that suits the administration, it turns to "unwritten rules" and "customary policies" to justify ignoring the Collected Rules and Regulations.  There is presently a Boone County Court Order granting a writ of "Prohibition" mandating that the University apply their Collected Rules to the evaluation of a denial of tenure appeal.  The Courts are presently the only way that a typical University employee can be certain that the rules are applied fairly.

        There is a solution: write your legislators and ask for the repeal of the University's exemption from The Administrative Procedure Act, Chapter 621 R.S.Mo [see http://www.moga.state.mo.us/statutes/c621.htm].  If the Administrative Hearing Commission can regulate professional licenses, liquor licenses and the actions of any other Executive Agency, then the time has come to entrust the application of the University's Collected Rules and Regulations to a neutral body.

George R. O'Connor is an attorney in private practice



Failure of the Grievance Process at UMR

by Clifton Merrow

        When I accepted an offer to join the Chemistry Department at UM-Rolla, I never envisioned that one day I would have to educate myself in legal matters.  Yet six years later my only option left was to take legal action against the University to force it to obey its own rules and regulations.  I am providing this synopsis as a primer for my colleagues who may believe erroneously that the University of Missouri (UM) Collected Rules and Regulations provide sufficient protection against capricious or even malicious actions by university administrators against their own faculty.  As I have learned the hard way, the highest ranking administrators and even the legal officers of the University display very little respect for these rules and are free to ignore them without the slightest concerns for repercussions.

        In a letter dated April 28, 2003, Dr. Y. T. Shah, the Provost of the University of Missouri Rolla (UMR), informed me that I had been denied promotion and tenure (P&T), despite the fact that Provost Shah does not have authority under the UM and UMR Rules to grant or deny tenure, but can make recommendations only.  Upon receiving this news, I sent a letter to Chancellor Gary Thomas informing him of my decision to appeal Provost Shah's recommendation.  On the same day, Provost Shah wrote and instructed Dr. Ekkehard Sinn, UMR Chemistry Department Chair, to inform me that the decision was made jointly with Chancellor Thomas, and that University policy dictated that I would not be afforded an "internal appeal" and that any appeal would be "wasting a lot of time."  This was a denial of my rights as established in UM System rules.  The rules state that, "In the event of a recommendation at any level for nonrenewal of a regular appointment or for a terminal appointment... the faculty member shall have an opportunity to request a reconsideration of the decision and to appeal the decision to the Chancellor."  I was not advised of the negative recommendation of Provost Shah nor given the opportunity to rebut that recommendation before its submission to the Chancellor as required by UM rules.

        I have no knowledge of any other final negative recommendations regarding my P&T application that were made by the Faculty College and Campus P&T review committees or administrators.  To date, I have not been contacted by, spoken with, or received any written communication from Chancellor Thomas or President Elson Floyd, as Chief Academic Officer, about my P&T as required.

        The above was just one of many instances during my P&T process in which the policies and rules established by the UM System and the UMR campus have not been followed.  For example, I have been forced to send an appeal through the same person who rejected me, been denied the opportunity to view the non-confidential portions of my dossier, could not get erroneous information pertaining to my publications removed from my dossier (this same erroneous information was present during the external reviews and at every level of the process), had a funded research project given to other faculty by UMR's administration, been subjected to two rounds of voting by the UMR Chemistry Department faculty (Final vote: 11 positive and 2 negative), have never received in writing any specific reasons for a negative recommendation so I could properly formulate a rebuttal, been denied academic freedom by having my association with another faculty member entered into the evaluation process, had my dossier reviewed by committees without legal standing, and had my own integrity called into question.

        UM System Rules provide a faculty member the opportunity to file a grievance under the Faculty Grievance Procedures, if the result of an appeal is not satisfactory.  My grievance, with its charges and evidence, has been submitted three previous times against UMR administrators, in particular, Chancellor Gary Thomas and Provost Shah, and has never been processed.

        According to UM rules, when the grievance is against a UM administrator, in this case Chancellor Thomas, then the grievance is to be filed to the next highest level above the perpetrator.  Accordingly, the first submission of my grievance was to President Elson Floyd, who in his letter of August 5, 2003, declined to accept the grievance, and insisted that it be processed at UMR.  This was done with full knowledge of the fact that Chancellor Thomas would select the grievance officer and one-half the members of the grievance hearing panel, and as ultimate decision maker can simply rule in his own favor.  President Floyd was also made aware of the fact that members of UMR's Grievance Hearing Panel Committee did not conform to the rules.

        In compliance with President Floyd's demand, the second submission of the grievance on September 10, 2003 was to Chancellor Thomas.  Chancellor Thomas selected two individuals with conflicts of interest to serve as the grievance officer, denied me an opportunity for an impartial mediation by appointing a person who had recommended against my P&T to serve as both the respondent and mediator, appointed two individuals with conflicts of interest to draw the names for the hearing panel, and when confronted with the requirement to constitute a grievance hearing panel with members that conform to UM Sys-tem Rules, chose to not proceed with the selection and assembly of this panel, and denied me a grievance hearing.

        On March 7, 2003, Chancellor Thomas and UMR administration exceeded the 180 day limit.  According to UM rules, "In the event the appropriate administrative officer fails to make a timely response as herein provided, the faculty member may pass to the next step."  The next step in the grievance process was "presidential adjudication."  The third submission of the grievance, for presidential adjudication, went to President Floyd on April 16, 2004.  The UM rules state that the President shall send a certified letter to the grievant, indicating the disposition of the grievance and a date that a determination will be made if it cannot be processed in thirty (30) days.  As of the date of filing this action, more than 180 days after filing the grievance for presidential adjudication, I have never been contacted by, spoken with, or received any written communication from President Floyd regarding my grievance or its status.

        On August 5, 2004, Mr. David Moen, my legal counsel and acting on my behalf, submitted a Petition in Mandamus and Prohibition to the Boone County Circuit Court of Missouri against the University of Missouri.  Judge E. Roper issued a Preliminary Order in Mandamus and Prohibition on August 11, 2004.  This preliminary order, in part, requires that the University of Missouri comply with its rules and provide me the grievance process required in the UM rules governing the application of tenure.

        For the present grievance hearing of Fall 2004 Chancellor Thomas has again demonstrated a total disregard both for the policies and procedures established by the University, and for common fairness.  There is an expectation that the officer charged with the responsibly of overseeing and ensuring the integrity of any hearing or review must be impartial and without conflict of interest.  The Grievance Officer's duties are, as I understand them, the following: (a) he may be designated to participate in the drawing of names for the hearing panel; (b) he notifies hearing panel members and selects alternates, and (c) he prepares an annual report on the status of grievances.  Once again, as he did in Fall 2003, Chancellor Thomas has appointed Provost Shah to be the Grievance Officer for my grievance hearing, thus calling into question the integrity of the process.  Provost Shah is the administrator with the greatest conflict of interest, since he is part of the grievance.  He  should have recused himself from this appointment.

        UM rules state "The chairperson of the faculty governance body (or designee), with the Academic Grievance Officer (or designee), shall randomly draw 12-16 names" for the Grievance Hearing panel.  The rules expressly state that other persons may be designated to participate in the drawing.  As the two persons to "draw" the names for my hearing, Chancellor Thomas made two inappropriate selections: Provost Shah, and the spouse of another faculty member, who "acquired" one of my proposals without permission and was also part of my grievance. 

        The current membership of the Grievance Hearing Panel Committee is the same, with one exception, as that of December 2003 and again not properly constituted.  Mr. Moen, my legal counsel, informed the University of the numerous defects in the membership of this committee in his letter of August 20, 2004.  Of the present Grievance hearing Panel Committee, twelve of the thirty members have served more than three consecutive years in violation of UM rules.  Seven have eleven-month administrative appointments and are prohibited from serving on this Panel.  Seven participated in the decision to deny my P&T.  Fourteen are serving on more than two standing committees in violation of UMR Faculty Bylaws.  

        UMR Faculty Bylaw 300.030.D.5.j. provides that the Grievance Hearing Panel is a Standing Committee of the General Faculty and shall consist of thirty faculty members, fifteen selected by the Academic Council and fifteen selected by the Chancellor.  Only fourteen persons have been chosen by the Academic Council and fifteen persons by the Chancellor.  Chancellor Thomas elected to reduce the number of members of the committee to twenty-eight rather than to afford UMR's Academic Council the opportunity to elect its fifteenth member as required by UM rules.

        As of this date, one year and two months from the initial submission of my grievance, I may be afforded a grievance hearing--but only under court order.

        I naively assumed at the very beginning of this process that UM System Legal, which is appointed by the Board of Curators and serves at their pleasure, would be primarily interested in making sure that the rules established by the Board were observed by everyone, including the administrators.  Leading me to this assumption was the Board's very strongly worded statement that "Students, faculty, administrators and employees who are not in sympathy with the basic philosophy expressed herein and do not intend to abide by the rules and regulations of the University should not attend the University nor become associated with the institution nor continue to be associated with the University."  My train of thought was simple: make everyone follow the rules, protect all the employees equally, and thus minimize the number of people who are forced to seek redress on the outside through litigation.

        I was obviously wrong in my assumption.  UM system legal appears to operate as "contract" lawyers to protect the administrators regardless of their actions, ignore the complaints (only one of my lawyer's six letters were answered), and stall until the grievant gets frustrated and leaves.  Wouldn't it be better simply to follow the rules, treat people respectfully, and avoid the legal problems?

        [The relevant sections of the CRR referred to by Professor Merrow are chapters 310.020 F3, and 370.010.--Ed.]

        [At press time, UM had not decided on a grievance hearing for Professor Merrow.  However, the chair of the Grievance Hearing Panel had resigned, because of a possible conflict of interest (not more closely defined in his letter to Dr. Merrow).  In addition Phil Hoskins, UM System Legal, had requested an extension of the Court's writ beyond the original sixty days.--Ed.]

Clifton Merrow is an Assistant Professor of Chemistry at UM Rolla



Calvin without Hobbes on Oak Street

by Marino Martinez-Carrion

        Calvin wants the world to behave according to his wishes.  The UMKC Chancellor has assumed Calvin's role, but lacks the tempering influence of a Hobbes, which even in her fantasy world she cannot quite bring to life.  In her cartoon-like obsession with being in total control, she engaged in a policy of retaliation against me because I questioned her disregard for university policies, her disdain for faculty opinion and the faculty's role in university governance, and her use of expensive consultants with links to EST to "transform" the university.  During my tenure as dean, I had built the School of Biological Sciences into a significant national player in selected areas of research without experiencing a single faculty grievance, much less a lawsuit.  Yet, shortly after having received the highest rating of any dean at UMKC in a secret ballot by SBS faculty, I was dismissed as dean.  Other deans who had received dismal appraisals from their faculty in similar surveys, and had faced, and lost, several lawsuits but were brilliant in paying obeisance, maintained their jobs.  This is what matters to Calvin.

        When the Chancellor could not control the faculty of SBS, which for over a year had unanimously resisted the indoctrination of her brainwashing team, she unilaterally hired a private consultant to run the School.  This unqualified person proceeded to retaliate against me as well, freezing the accounts under my control as Director of Research.  The Chancellor later claimed this action was not directed against me, since other accounts were also frozen throughout UMKC.  Nevertheless, those other accounts were eventually reinstated, but not those of the Director of Research at SBS, nor the staff under his supervision.  The role of Horton, the expensive urban geographer made Life Scientist by the Grace of Calvin--oops, the Chancellor--was to bring SBS under the boot.  His threats even included dissolution of the unit.

        After I had taken VERIP and filed a complaint with the Missouri Human Rights commission, the campaign of retaliation continued.  I was offered a part-time job to assist another professor in a federal research project, which I could do under the terms of VERIP.  The offer was signed by the department chairman and the dean of SBS and was accepted by me in December 2003.  At this point, the administration made a major blunder.  In April 2004 Provost Ballard finally replied, denying the offer because it "was not in the best interest of the university."  Privately he admitted that he would have approved it but the Chancellor would not do it.  When pressed for clarification, Oak Street said by phone that since I was suing the university, this "disqualified" me for employment.  [Professor Martinez-Carrion had in fact not yet filed a suit against the University.--Ed.]  By this time I was seriously considering dropping even the possibility of a lawsuit as a long-term headache, but this preposterous action convinced me otherwise.  And there was worse to come.  The faculty member in whose laboratory I was promised the part time job pressed for further information.  He was advised, in writing, by Ballard's successor, Provost Osborne, to drop the issue because "one wonders if there is not a person in SBS who is younger" who could be offered the job.

        As the university lawyers were made aware of all these blunders and the prospect of a long legal battle loomed on the horizon, an arrangement was worked out for an out-of-court settlement, in response to the whole gamut of my complaints.  This has now taken place.  As a consequence the university is now poorer, not just in funds but also in principles and the image of fairness.  The School of Biological Sciences is a shadow of what it was in 2001.  Having lost one fourth of its faculty, which represents a substantial amount of its extramural funding, SBS may not be a puppet Vichy France, but an atmosphere of surveillance and control prevails, nevertheless.  There is constant supervision from the administration, so that the school does not go astray but conforms to the party line.  Nothing can be done without Oak Street approval.  Puppet groups, whose main credentials are sycophantic loyalty to the Chancellor, are altering the fundamental laws of university governance and faculty evaluations.  The aim, as in Calvin's mind, is to make the (UMKC) world conform to his/her wishes.  Meanwhile, bylaws and procedures are trampled to bring faculty into "alignment with the UMKC vision."  For someone who lived through it, the present situation at UMKC is reminiscent of the totalitarian nature of Franco's governing methods, using handpicked "loyalists"--who would later change their colors as expediency demanded--to rewrite the laws.  I expect my legal battles with the UMKC Chancellor will not be the last.  Those faculty who do not vote with their feet will continue to defend their rights, and Calvin's fantasies will be thwarted once again.

Marino Martinez-Carrion is Professor Emeritus in the School of Biological Sciences at UMKC



What's the Matter with the University of Missouri?

by David Ormerod, MD, FRCP, FRCS

        A recent incident points to the fundamental faultline that underlies the historical malgovernance of the University of Missouri.  Newly arrived President Floyd had requested that Athletic Director Michael Alden not revoke a student's scholarship "until [the student] had due process," and was subsequently personally aggrieved when due process was not followed.  If he had had more experience at UM, he would have known that "due process" is not usually a feature of faculty or student governance at his university.

        The formal administrative commitments to adhere to the Curators' Bylaws, Rules, and Regulations have been ignored consistently back into the historical record.  This fundamentally unaccountable university is part of a Missouri constitutional structure which places the Administration entirely outside the oversight of the people of Missouri, the Governor, the Legislature, the university student body, UM faculty, or its staff.  UM has progressively degraded over many years, as the direct consequence of good-old-boy politics, to the detriment of all Missourians.  Despite its 60,000 students, no objective analysis ever places UM in the top 300 universities.  Have we asked sufficiently how this has been allowed to happen?  Indeed, are our taxes being wasted?  When due process and the rule of law are flouted with regularity, any institution will inevitably decay from within, for the simple reason that many academicians and educators dedicated to the truth are forced to leave.

        Regular Faculty Advocate readers will recognize many incidents over the years that are compatible with this thesis.  I am currently in litigation with UM, wherein I allege that the University vitiated whole sections of its Regulations and then adopted a sordid campaign of lying and disinformation as a cover-up.  Numerous University administrators consistently voided the Regulations and repeatedly refused to even talk to me, or to solicit facts.  It was clearly orchestrated.  Due process was absent in totality, at all levels up to the Curators.  Such issues are now solely for the courts to decide, for I was denied any alternative.  However, several incidental aspects of this process illustrate what is wrong with UM and indicate where the culpability lies.

        In a response to a US Federal suit on the absense of due process, UM seeks to argue that they are part of the State, and as a consequence claim sovereign immunity from the due process provisions of the US Constitution.  We argue that the enabling legislation of University of Missouri provides a specific waiver, in that the University "can be sued in all courts."  Whatever the ultimate legal decision, the meaning is plain for all to see.  UM claims that the Curators' Bylaws, Rules, and Regulations are not worth the paper they are printed on, and that due process can be disregarded at will--if all the Administration has to do is claim immunity in the only venue in which they are actually accountable.

        In a separate Missouri case, we argue that a document signed on first appointment guarantees contractual rights under the UM Bylaws, Rules, and Regulations.  Although all faculty sign under this statement, UM has disputed its contractual nature.  The implication is that the University wishes to argue that its faculty do not have a single inherent employment right, given the fact that this is the sole "contract" offered to them.  UM further seeks to argue that, should the Court uphold this written contractual obligation for the protection of the Curators' Regulations, this obligation applies only to the first year of faculty employment at the university, since in all subsequent years faculty are not asked to sign a renewal!  UM quite clearly does not want to be seen arguing that it regards all its faculty employed purely "at will," but will do so expediently in the relative secrecy of a court case.

        I am seeking to hold UM accountable in a lawsuit in Kansas City, because Missouri law states that a "public corporation" can be sued wherever it has a place of business.  The University seeks to argue in this case that it is not a public corporation, although a statement to the contrary appears all over UM documents as well as on its website.  UM also argued the opposite at length to the same Court in a different case just one month previously.  Furthermore, Judge Frank Conley determined UM to be a public corporation in the Kansas City Star Missouri Sunshine Law case.  In previous losing litigation, UM sought to claim that it was actually a municipality, and therefore could only be sued in Columbia!  Where is the integrity in such tomfoolery?

        The Administration of the University of Missouri has imperiously abused its position over at least two generations, since the four universities were consolidated under one system while still retaining an unaccountability to any legitimate party.  It has been too tempting for our often suspect-quality administrators to rule by expedience and by bullying.  Examination of the available record in the University Archives shows unmistakably that the Universitry Legal Counsel's Office has repeatedly sought arbitrary power unfettered by Regulations to underpin UM administrative culture.  This Office is the enemy of progress.

        Excellent universities are not run this way.  UM must re-estblish the rule of law in all its dealings, and the temptation for systematic opportunism must be corralled by establishing accountability.  The extraordinary constitutional parastatal position that establishes this institutional irresponsibility must be re-examined by the Missouri legislature.  The crass UM good old boy culture must be extinguished and accompanied by a comprehensive changing of the guard.  It is hoped that President Floyd is capable of recognizing the problem and has the courage and ability to deal with it.  Nothing more blights the University of Missouri than its unethical way of doing business.

David Ormerod is a former faculty member at UM-Columbia



IFC Election Invalidated, Sent to Committee

        In an unusual move the Faculty Senate on September 21 voted overwhelmingly to invalidate the recently completed election for a replacement (one-year) position on the Interfaculty Council and to send the matter to the Senate's Administrative Issues Committee.  The vote came after a number of concerns about the format of the election were raised by faculty members, particularly by the AAUP executive committee.

        Neither the eligibility of the candidates nor the actual election results were contested--in fact, the AAUP executive committee urged that the voting be broken off before there were any results.  It was the election process itself that raised a number of serious concerns.  In a break with campus policy, Faculty Senate chair Jakob Waterborg, after consultation with the Senate officers, prepared and sent out an e-mail ballot, rather than a paper one.  Objections were raised both to electronic voting (for security reasons), and to the fact that neither the Senate nor the faculty at large were consulted beforehand about the switch.  It turned out that a number of faculty were not able to vote using the original mechanism.  Prof. Waterborg provided pin-numbers for these faculty, but a few were still unable to vote.  Some people printed out and sent in their ballots.  Given the confusion, and the fact that some faculty were disenfranchised, the AAUP called for a new election.

        Also of concern was the fact that one of the three candidates, Professor Gary Ebersole, was not given sufficient opportunity to write a statement of purpose.  While two candidates on the ballot had a paragraph describing their goals, under Prof. Ebersole's name it said simply "no statement."  For  voters who may not know the candidate, this implied a lack of seriousness on his part.  Thus the lack of a statement was felt  to be prejudicial to his candidacy.

        Finally, the Senate minutes of August 17 state clearly that the IFC election was one of the charges of the standing Senate committee on Administrative Issues.  This committee had never been consulted, let alone prepared the ballot and conducted the election, as was its responsibility.

        For all these reasons, it was urged that the election be invalidated.  At the September 21 meeting Senate Chair Waterborg proposed that the election be accepted as fair and the results as valid.  After some heated discussion, the Senators voted this proposal down, and ruled that the election must be done over.  It has been referred to the proper committee, which at press time is in the process of preparing a new election, using paper ballots.  It has issued a call for nominations, including to the original three candidates, and is aiming for an October date for sending out the ballots.

        The AAUP urges all eligible faculty to vote in this--and all--campus elections.  Through elections we make sure that our voice is heard and accurately represented.  Even vulnerable non-tenured faculty, operating under the familiar pressure to produce, can participate in faculty governance by voting.  Those of us who already have the protection of tenure can expand their participation by a willingness to run for office.  The specific position of IFC representative is a vital one, since the IFC, with members from the four campuses, meet on a monthly basis with the system President.  This is a one of the few opportunities to compare notes with our UM colleagues, and make our concerns known directly to the President.  What these representatives convey at those meetings is to a large part who we are in the eyes of the President and the other campuses.  Important?  Extremely.  So be sure to vote.



News of the Chapter

        The Chapter executive committee has been active in alerting the membership to issues as they arise, such as the problematic IFC elections and the computer logon "surveillance" message.  We urge members to keep us posted about developments in their units or on the campus.

        On August 26 after the lengthy All-Faculty meeting, the Chapter held its first social get-together of the semester, at Planet Sub.  A dozen and a half attended, and continued the discussion about restructuring.  On September 17 we had our second meeting, a very pleasant TGIF party hosted by Kelly Pinkham.  Among the attendees were several visitors from universities in Erfurt, Germany, Cameroon, and California, who brought interesting insights into university life and faculty governance.  The relaxed atmosphere spawned a very productive discussion of plans for future chapter projects, which will be discussed in a later issue of the Advocate .

        We wish long-time Chapter members Tim Thomas and Gene Wagner both a relaxing and productive retirement.  We also welcome the new members who have joined us since last semester.  The AAUP encourages our members to participate actively in campus governance.  We are pleased to note fourteen chapter members among the Arts and Sciences officers and standing committees, and nine AAUP members on the Faculty Senate.



Restructuring Questioned

by Patricia Brodsky

        On August 26, the "Day of Learning," despite short notice and many conflicting activities, about sixty faculty members attended the first Senate "All-Faculty Meeting" of this academic year.  The single item on the agenda was the restructuring of the campus, which had been proposed by the Chancellor in late May, and which was supposed to have gone through a process of discussion and approval by the end of June!  This proposal, its timing and its deadlines met with strong resistance campus-wide (see Faculty Advocate, August 2004 for a summary of faculty objections.)  The AAUP was instrumental in alerting faculty to the proposal and its dangers, and in urging the Senate to schedule a meeting early in the fall semester.

        At the All-Faculty meeting, selected spokespersons from various units described the reactions and concerns of their members.  The meeting was then thrown open for comments from the floor, which were many and strongly worded.  There was general agreement that the faculty themselves, not the administration or a PR firm, should be establishing the "goals and missions"--that we should take back our proper role as intellectual and ethical core of the University.  There was also skepticism that there was a need for a restructuring at all, and the conviction that much less drastic and disruptive means could be found to deal with any specific efficiency issues in the administration.  At the end of the meeting, the faculty present voted unanimously to send a message to the Chancellor requesting in writing a list of justifications for the proposed restructuring.  The sense was that if this were not forthcoming, or if the justifications were not convincing, the faculty would reject the whole idea.  This message was conveyed to the Senate, which officially endorsed it.  There has as yet been no response from the Chancellor.


The entire contents of each issue of  The Faculty Advocate (except for public domain material) is copyrighted.  The Faculty Advocate , October 2004, Copyright 2004 by the UMKC Chapter of the American Association of University Professors.  All rights returned to authors upon publication.  Opinions expressed here do not necessarily represent the positions of the AAUP or the editor.  AAUP chapters, state conferences, and the national organization have permission to reproduce and distribute.  Permission for other non-profit publishers is a formality, but UMKC AAUP asks them for the courtesy of requesting it.  Contact the Editor, Patricia Brodsky: 816-235-2826, e-mail: brodskyp@umkc.edu

AAUP Dues Information

Membership
Open to all faculty
Full-time tenured and tenure-track
Full-time non-tenure track
Part-time
Graduate teaching assistants

Membership requires payment of both local and national dues
 

Local UMKC chapter dues

$10 per academic year.
Send payment to Treasurer, Alfred Esser, BSB 417, 816-235-5316, or essera@umkc.edu.
Please make checks payable to "UMKC-AAUP Chapter."
Also please send Alfred your preferred mailing address(es), phone(s), and e-mail address(es).

National dues

Varies by job classification and state--click this link for up-to-date information

Discounts on national dues for following categories

50% off
a) Entrant: Nontenured full-time faculty, new to the AAUP, for first four years of membership
b) Joint: Full-time faculty member whose spouse or partner is a full-time member
c) Retired
75% off
Part Time: Faculty paid on a per course or percentage basis


$10/yr

Graduate: Person enrolled as graduate student at an accredited institution; five-year limit
Please note that national dues also cover Missouri State Conference dues (but not local UMKC dues)

Back Issues

The Faculty Advocate, Vol. 1, No. 1 (September 2000)

The Faculty Advocate, Vol. 1, No. 2 (December 2000)

The Faculty Advocate, Vol. 1, No. 3 (February 2001)

The Faculty Advocate, Vol. 1, No. 4 (April 2001)

The Faculty Advocate, Vol. 2, No. 1 (October 2001)

The Faculty Advocate, Vol. 2, No. 2 (December 2001)

The Faculty Advocate, Vol. 2, No. 3 (February 2002)

The Faculty Advocate, Vol. 2, No. 4 (April 2002)

The Faculty Advocate, Vol. 2, No. 5 (June 2002)

The Faculty Advocate, Vol. 3, No. 1 (September 2002)

The Faculty Advocate, Vol. 3, No. 2 (December 2002)

The Faculty Advocate, Vol. 3, Nos. 3-4 (April 2003)

The Faculty Advocate, Vol. 4, Nos. 1-2 (December 2003)

The Faculty Advocate, Vol. 4, Nos. 3-4 (April 2004)

The Faculty Advocate, Vol. 5, No.1 (August 2004)


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