Minutes of Faculty Senate Special Session

December 18, 2008

4:30-6:30 Levin Hall South

Faculty Senate Chair, S. David Hudnall, called the session to order.

Dr. Hudnall opened the session stating that the UTMB Faculty Senate was here for the health of the faculty. The recent RIFs at UTMB are perceived as a serious threat to tenure at UTMB and to other schools in the UT System. This threat has been noted by larger national groups, such as AAUP.

The group reviewed the UT Regents Rule 31003-Elimination Due to Financial Exigency. Dr. Hudnall introduced invited guest, Carolee King, VP, Chief Legal Officer, Department of Legal Affairs who would field legal questions.

Rule 31003 was examined section by section:

Rules and Regulations of the Board of Regents Rule: 31003

Sec. 3 Elimination Due to Financial Exigency. When such reductions are necessary as a result of financial exigency, the procedure for the selection and notification of those academic positions that are to be terminated shall be governed by this Section, and neither the procedures specified in Rule 31008 of the Regents’ Rules and Regulations concerning termination of a faculty member, nor the notice requirements of Rule 31007, Section 5 concerning tenure, or Rule 31002, Sections 1 and 2, concerning notice of nonrenewal to nontenured faculty members, shall be applicable.

Faculty: Please tell us if the Regents declared financial exigency for the entire university or for specific programs and/or positions.

King: Cuts were made across the board.

3.1 Committee Recommendations. Upon determining the existence of a financial exigency and the need to reduce academic positions or academic programs, or both, the president of an institution shall appoint a committee composed of faculty and administrative personnel to make recommendations to the president as to which academic positions and/or academic programs should be eliminated as a result of the financial exigency.

Faculty: This rule refers to academic positions or programs; however there is a huge difference in basic science programs and clinical programs. The faculty committee is made up of ¾ clinicians and ¼ basic scientists.

3.2 Assessment of Academic Program. The committee will review and assess the academic programs of the institution and identify those academic positions that may be eliminated with minimum effect upon the degree programs that should be continued. The review will include, but not be limited to, an examination of the course offerings, degree programs, supporting degree programs, teaching specialties, and semester credit hour production.

Faculty: What programs were eliminated? The same person answered “None”. Someone suggested a more selective (open) process be followed.

Faculty: In Environmental Toxicology, the entire faculty was RIFed, but the program remains.

3.3 Review Consideration. Upon determining that one or more academic positions in a degree program or teaching specialty should be eliminated, the committee will recommend the particular position or positions to be terminated by reviewing the academic qualifications and talents of holders of all academic positions in those degree programs or teaching specialties, the needs of the program they serve, past academic performance, and the potential for future contributions to the development of the institution. Tenure status of a faculty member shall not be a consideration in the determination of whether a particular position should be eliminated except as permitted in Section 3.4 below.

Faculty: Note that this section specifies teaching rather than research.

Chair: I might add that many of the Rifed faculty had major teaching roles including serving as Course Directors – the impact of this loss of teaching faculty on the medical and graduate school clearly will have more than a “minimum impact on the degree programs” as per section 3.2.

Faculty: Are there any minutes of the committee meeting?

King: I don’t think the committee would have to keep minutes. There is no general rule about this.

Chair: The Faculty Senate can ask for the committee minutes with a PIA request.

Faculty: How could this committee possibly complete all the steps of 3.3?

Faculty: The committee could not possibly have any of my qualifications. He suggested that this is not what happened. He said that chairs were given a directive to cut numbers of faculty or cut a percentage of their budget. Apparently there were some other additional unknown criteria (perhaps “at-risk” related to grant funding). The department chairs then gave their lists to the committee. There were two departments where everyone was on the list.

Faculty: My department got rid of all the PhDs. He said a cash balance from his work was snatched by UTMB and his chair said that he couldn’t account for it.

3.4 Tenure Preference. If, in the opinion of the committee, two or more faculty members are equally qualified and capable of performing a particular teaching role, the faculty member or members having tenure shall be given preference over non-tenured faculty. However, if such faculty member has the same tenure status, consideration will be given to other documented needs of the institution.

Faculty: In addition to preference for tenure, were there any other preferences made to age, gender, and race?

King: Yes.

Faculty: This is not so. Other preferences were not followed.

Faculty: This section again clearly mentions teaching role, but does not consider research role.

Faculty: In my department when two equally qualified faculty were considered, the tenured faculty was let go and the untenured stayed. This is wrong.

Faculty: How was this committee was formed?

Faculty: How many of the numbers brought forward by the chairs did the committee decide to RIF? The group was encouraged to request information through the PIA.

Faculty: Would the PIA provide the names and the criteria/decision for termination

King responded that in questions about what is considered Public Information, the Attorney General makes decisions about exceptions. PIA can be requested through the UTMB website. Jim Kelso is the privacy officer.

Faculty: What is the time frame to get a PIA response?

King: In a reasonable amount to time.

Chair: This line of questioning may be related to the appeals process.

King: The appeal process is very simple. Just email Dr. Callender requesting reconsideration of your termination.

Faculty: You have 30 days after you received your termination letter (December 24, 2008 is the deadline for most).

Faculty: The list of committee members was not protected, why would the process be protected?

Faculty: There is a rumor that Steve Lieberman interceded with the committee for some SOM teachers? Can we verify this?

Faculty: If we cannot get the minutes of the committee proceedings, perhaps the committee can meet with the Faculty Senate and share the process with us.

Faculty: If there were two faculty with equal qualifications and one was non-tenured and another was an assistant professor on the tenure track who would go?

King: The person on the tenure track should have priority. I’ll clarify that.

Faculty: If there were two faculty with equal qualifications and one was a citizen and the other was a non-citizen, who would go?

King: The rules don’t specify. I’ll have to clarify that.

3.5 Recommendation. Upon completion of its review, the committee shall promptly recommend to the president those persons who may be terminated, ranked in order of priority, with the reasons for their selection. The president shall, with such consultation with institutional administrative officers as they may deem appropriate, determine which academic positions are to be terminated because of the financial exigency and shall give the holders of these positions written notice of the decision.

Faculty: Can we get this list and the ranking?

Chair: This information should be available via PIA request.

Faculty: This rule states that the President notifies the person of their termination? I was notified by the Executive Vice President.

King: This function can be delegated by the President.

3.6 Notification of Vacancies. Any person terminated due to financial exigency will be notified when a vacancy occurs in the same institution in their field of teaching within the next two academic years following the termination. If such person makes timely application and is qualified for the position to be filled, they shall be offered employment in that position. If the vacancy is in a field of teaching in which two or more persons have been terminated because of financial exigency, all will be notified of the vacancy and of those so notified and making timely application, employment will be offered to the person who is the better qualified for the position to be filled.

Faculty: There is an implicit discrepancy in this rule. Many faculty hold appointments in several departments.

Faculty: I am an epidemiologist and I have a joint appointment in Human Nutrition. My letter came from Human Nutrition so I’ll be eligible for a position in Human Nutrition. But I am not a nutritionist-I’m an epidemiologist!

Faculty: What if UTMB does not do this?

Faculty response: File a lawsuit.

Faculty: How do you define qualifications?

Faculty: I suggest this section be re-written.

3.7 Hearing Committee. The president shall appoint a hearing committee to hear any appeals for reconsideration of termination decisions based upon financial exigency. Within 30 days from the date of the notice of termination, a person shall have the right to appeal to the hearing committee for reconsideration of the termination decision. The appeal for reconsideration shall be in writing and addressed to the president. A person to be terminated who appeals to the hearing committee shall be given a reasonably adequate written statement of the basis for the initial decision to reduce academic positions and, upon request of the person, shall be given any written data or information relied upon in arriving at such decision.

Faculty: Reasonably adequate?

Chair: You should be able to get any written information related to your decision by appeal without PIA.

Faculty: Another committee—appointed by the president?

Faculty: What are the facts of financial exigency? How is it defined?

Faculty: UTMB has details about what funds can be used for—operating funds (used for dismissing faculty) vs. building funds, etc. These details need to be made explicit.

King: The amount of loss is public information. It is clear. It’s in the newspapers and on TV.

Faculty: This is not clear. This information about financial exigency needs to be made clear.

3.8 Appeal Procedures. The hearing committee shall set the date, time, and place for hearing the appeal for reconsideration. Such hearing shall be held within 30 days of the date of the written request unless the person to be terminated waives such time requirement; however, such hearing shall be held within 90 days from the date of the request. The hearing committee shall conduct the hearing in accordance with the following conditions and procedures.

(a) The hearing will be closed to the public unless requested to be open by the appealing person.

(b) The appealing person may be represented by legal counsel at their expense.

(c) The appealing person and the institution may offer any written evidence or oral testimony that is material to the issues.

(d) The burden shall be upon the appealing person to show by a preponderance of the credible evidence that:

(1) Financial exigency was not in fact the reason for the initial decision to reduce academic positions; or

(2) The decision to terminate the appealing person as compared to another individual in the same discipline or teaching specialty was arbitrary and unreasonable.

(e) No other issues shall be heard or considered by the hearing committee.

(f) The hearing committee shall make written findings of fact and recommendations to the president of an institution as soon as practical following the hearing. The president shall have the final decision to either accept or reject the recommendation of the hearing committee.

Faculty: (d-1) How can we show financial exigency was not the reason when we don’t have the data? Where are we going to get this data?

Faculty: We can get annual data, but we need data from September 2008 through October 2008.

Faculty (f) The president can overrule the committee?

Faculty: I have concerns about filing an appeal. Would this be a black mark when seeking a position at another UT school? Is the appeal confidential?

King: Another institution can ask, but UT cannot answer without permission granted by the faculty member. This is not a termination for cause.

Faculty: Can the appealing person have access to the committee’s report to the president and the president’s report?

Chair: Carolee King has to leave now. (5:30 PM). She will leave a sample appeals letter.

David Hudnall presented the SYSFAC Resolution with recommended changes to Regent Rules and support for RIFed faculty at UTMB. A faculty member requested this be sent out to all faculty. Dr. Hudnall stated this is possible.

Then Dr. Hudnall read the UTMB Petition for Fair and Equitable Treatment of RIFed Faculty developed by Cheryl Watson and Karl Anderson. There was a motion by Malcolm Brodwick and seconded by Cheryl Watson to send this letter/petition to Dr. Callender and Dr. Anderson. There was not a quorum of Senators in attendance at the meeting and the Senate was unable to formally act on the statement. However, at the request of many faculty in attendance, including Senators, there was a motion to vote on the statement by those in attendance and to submit the statement to the President and Provost.. The votes were 33 in favor, none against, with 2 abstentions from the Faculty Senate Chair and Chair-Elect.

Charlotte Wisnewski informed the group that when we made the motion to include others besides senators in the vote we could no longer use these minutes as Faculty Senate minutes. Malcolm Brodwick suggested that the Senate meeting was recessed and the vote was made at the end of the meeting, thus the minutes stand.

Dr. Hudnall spoke about the unprecedented loss of senators and tenured faculty, and the chilling impact this will have on recruitment and retention of faculty at UTMB.

Respectfully submitted

Kay Sandor, 12/21/08