Committee on Elections, Rules and Jurisdiction Archive of Advice of the Committee (revised May 10, 2006)

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Petition Rights of Former Students

[Advice to Divisional Chair Dan Simmons 11/14/2005]

A student does not lose standing to file a petition simply as a result of his or her graduation.  To find otherwise would make decisions rendered in a student's final quarter at Davis unreviewable.  (This advice does not address the question of whether petitions may at some point be considered untimely.)

[Advice offered with regard to the Vote of No Confidence Resolution on the Chancellor 2/5/2006]

ASB 310 leaves the Division free to craft its own rules for elections, subject to being consistent with pertinent Systemwide Bylaws.  ASB 340(B) -- which pertains to Divisional ballots on matters such as Resolutions -- incorporates ASB 95, which is the controlling Systemwide Bylaw governing this election.  DDB 17 also controls this election, except where it is in conflict with ASB 95.  Therefore,

a) DDB 17 specifies 7 instructional days for the return of ballots.  However, this is inconsistent with ASB 95, which specifies that at least 14 calendar days must be allowed.  A Divisional Bylaw is overridden by a conflicting Systemwide Bylaw, and therefore we must allow at least 14 calendar days for the return of ballots.

b) DDB 17 specifies that the mail ballot must include all duly submitted pro and con arguments which do not exceed two pages each.  (The Secretary has exercised her authority to impose a two-page limit on each argument.)  This is consistent with ASB 95 which specifies that the ballots are to be accompanied by such additional material as the Division may direct.  (All arguments, including those exceeding two pages and those submitted by persons not in the Senate, were also posted in a Forum on the Senate web site.)

c) ASB 95 also specifies that "a brief summary of arguments pro and con" be included with the ballot, and the Divisional Bylaws are silent on this matter.  DDB 13(F) specifies that the Secretary conducts elections requiring a mail ballot under the supervision of CERJ.  The Secretary must therefore prepare a brief summary of the duly submitted pro and con arguments for inclusion with the ballot.

[Advice to a member of the Division 3/3/2006]

Senate faculty retain full voting rights on personnel matters until the last day of the academic quarter of their retirement, the separation date for payroll purposes notwithstanding.

For example, a faculty member retiring at the end of the winter quarter would retain full rights through the end of the winter quarter.  This is true even if the payroll separation date is February 28 -- that date being an artifact of a 9-month salary being paid over 12 months, so that employment for 2 quarters would lead to 8 monthly payments for the academic year.

[Advice to the Committee on Academic Freedom and Responsibility and Jeanne M. Wilson, Director of Student Judicial Affairs 3/23/2006]

The administration of teaching evaluations is central to the supervision of courses, and therefore comes under Senate authority under Standing Order of the Regents 105.2(b).

CERJ is not charged with interpreting the Academic Personnel Manual or state law.  However, CERJ agrees with Student Judicial Affairs that under the Family Educational Rights and Privacy Act and the plain language of APM 160-20 faculty have a right to see original student evaluations, and that this right generally trumps student privacy rights.

[Advice given to the Intercollegiate Athletics Task Force 3/30/2006]

The Academic Senate is the sole authority empowered to determine the meaning of phrases such as "good academic standing" for all students at the University.

However, the Senate has no authority to interpret NCAA Bylaws controlling the eligibility of student-athletes.  Athletics Director Greg Warzecka and Senior Associate Athletic Director Pamela Gill-Fisher have determined that NCAA Bylaw Interpretations do not require student-athletes to be in "good academic standing," notwithstanding the language to that effect in NCAA Operating Bylaws 14.01.2.1, 14.02.5, and 14.4.3.3.  Given this determination, CERJ advised that the UC Davis definition of good academic standing (ASR 900-902 and DDR A552) is not relevant because this concept is not being employed in determining eligibility.

[Advice to a member of the Division 4/11/2006]

Pursuant to Standing Order of the Regents 105.1, Senate members retain full rights as members (including the right to stand for election for committees and to serve on committees) notwithstanding being on sabbatical leave or leave of absence, and notwithstanding transference to emeritus status.  The only exceptions are the limitations on departmental voting rights specified in ASB 55.  (4/11/2006)

[Advice to Arnold Sillman, Chair of the Committee on Courses of Instruction 4/25/2006]

Advised that, as long as the exam is administered within the time window published in the Class Schedule, an exam scheduled to be less than two hours in length is in compliance with Senate Regulations.  Davis Division Regulation 538(B) and Senate Regulation 772(A) only specify that the final may not exceed three hours, and the exam must fall within the published time window.  (CERJ suggested that, to avoid any confusion, the instructor start the exam at the beginning of the published 2-hour window and announce the duration of the exam well in advance.)

[Advice issued in response to an inquiry from a member of the Division 5/9/2006]

Without in any way limiting the authority of the instructor under Systemwide Senate Regulation 542 or Davis Division Regulation 527, it is a reasonable exercise of the instructor's discretion to exclude a student from a course if the student has not satisfied the stated prerequisites, the prerequisites to the stated prerequisites, and so on.  That is, "inherited" prerequisites are enforceable by the instructor.  In this case the instructor may request that the Registrar drop the student from the course after providing notice to the student.

Complete Advice with Rationale

[Advice provided to Undergraduate Writing Program Interim Chair Karl Zender 5/10/2006.]

The Code of the Senate indicates that departmental voting procedures must satisfy the following conditions:

(1) Voting within a department (or its equivalent) is limited to Senate faculty who are members of the department and who are themselves subject to being voted on by other eligible members of that department.  That is, voting is a reciprocal responsibility, subject only to the eligibility rules of ASB 55.  Therefore, extension of the vote to persons who are not members of a department (e.g., to nondepartmental members of a Program Committee) is in violation of the Code of the Senate.

(2) Department membership requires the vote of the tenured faculty of that department; Senate faculty may not be added to a voting constituency by appointment (e.g., to a Program Committee) without a department vote conducted pursuant to ASB 55 even if confirmed by some other Senate body (e.g., a College Executive Committee).

In addition, we note that (3) size per se is no bar to functioning as a departmental voting unit for ASB 55 purposes.

Complete Advice with Rationale [HTML] [PDF]

May a graduate program require "B" performance in a class which it allows to be taken S/U?

[Advice to Graduate Dean Jeffrey Gibeling 9/6/2004]

Graduate programs may establish performance standards in courses, but that those standards may not be based on letter grades which do not appear on official transcripts where taking courses on an S/U basis was an established practice in that program.  Thus, for example, a graduate program may not require a minimum grade of "B" as a performance standard for students who are allowed to take courses on a Satisfactory/Unsatisfactory basis.

The Graduate Council is the appropriate Senate agency to hear student complaints rising from this practice.

[Advice to Division Chair Dan Simmons 10/2004]

CERJ was asked for advice regarding (1) a proposal from the School of Medicine to change the name of the Department of Ophthalmology to the Department of Ophthalmology and Visual Science; and (2) a proposal from the College of Agricultural and Environmental Sciences to consolidate four departments (Agronomy and Range Sciences, Environmental Horticulture, Pomology, and Vegetable Crops) into the Department of Plant Sciences.

As the names of academic departments are under the authority of the University President and his/her delegates, rather than the Senate, CERJ found no Senate jurisdictional or legislative issues involved in either of these proposals.

[Advice to the Chair, Committee on Grade Changes, 11/2004]

ASR 800 and DDR 554 establish that the Academic Senate has authority over all students enrolled in courses in which students receive grade point and degree credit, whether they are matriculated students or students enrolled as Extension students.

In particular, the Committee on Grade Changes is responsible for all matters pertaining to the charge of the Committee set forth in Davis Division Bylaw 79 in the case of all students enrolled in any course in which students receive grade point and degree credit.  That authority includes both matriculated (regular status) students and students enrolled through University Extension.

[Advice to the School of Medicine 3/2005]

Changes in professional (400-level) courses in the School of Medicine do not require Divisional Senate Review because the School of Medicine and Graduate Council have a memorandum of understanding with the Committee on Courses of Instruction in force.

[Note 5/7/2006: Under Standing Order of the Regents 105.2 the Davis Division Committee on Courses of Instruction has authority over all courses offered by professional schools that also offer undergraduate courses.  This includes all professional schools at Davis with the exception of the School of Law.  However, the Schools of Medicine and Veterinary Medicine have Memoranda of Understanding in force by which the Committee on Courses of Instruction has delegated approval of 400-level courses to the respective Faculties.  Similarly, there are MOU's with the School of Education regarding 300-level courses and with the Graduate School of Management with respect to 400-level courses open only to professional students.  (These MOU's are posted on the COCI web site.)  Senate authority over these courses may be delegated as long as there is mutual consent to do so.  However, this authority may not be relinquished permanently and COCI and the respective Faculties retain the authority to rescind these MOU's at any time.  See also advice offered in 2000-2001 regarding Senate authority over professional school curricula.]

[Advice to Professor Thomas Famula, Department of Animal Science 3/2005]

The Department of Animal Science asked if a requirement for training in health and safety issues as a prerequisite for students in classes involving work with animals would conform to Senate legislation, and if Senate approval would be required to implement such a requirement.  CERJ advised that:  (1) any such prerequisite for a course offered for credit would require Senate approval; (2) there is no legislation that would prohibit such a prerequisite; and (3) the issue of permitted prerequisites falls squarely in the jurisdiction of the Divisional Committee on Courses of Instruction.

[Advice to a member of the Department of Electrical and Computer Engineering 4/2005]

In accord with DDB 170, Robert's Rules of Order governs the conduct of business in any academic department that lacks its own Bylaw, or in the instance of any business not covered by that Bylaw.  (Departments are committees of the Division, and the reach of DDB 170 extends to all agencies of the Division.)

A question arose as to what defines a "quorum" for the conduct of business in a department meeting.  A department's own Bylaws may define a quorum. If the Bylaws do not define a quorum, or if a department has no bylaws in force, DDB 170 requires that Robert's Rules of Order will govern the conduct of business.  Robert's defines a quorum as a majority of eligible voters.  In the case of the Department of Electrical and Computer Engineering an ad hoc meeting of some departmental members did not meet that standard and decisions reached at that meeting are annulled.

[Advice to a member of the Department of Electrical and Computer Engineering 4/2005]

ASB 55 (Departmental Voting Rights) guarantees the right of any department member to require a secret ballot, which means that procedures must guarantee the anonymity of all members who vote in any action.  As Robert's Rules of Order governs in this case, the double-blind voting method must also be used for any mail ballot.  To avoid controversy, CERJ urged the Department to use the Senate Office staff as tellers in subsequent votes on personnel actions.

[Advice to Divisional Chair Dan Simmons 4/2005]

DDB 39 requires the election of three members of the Divisional Committee on Committees each year, each to serve a three year term; and that in the case of a vacancy an election must be held to select a member who will serve the remainder of the vacant term.  Due to some confusion involved in replacing a resigning member in 2001, in 2003 four members mistakenly were elected for three year terms.  That resulted in a situation in which COC elections will be locked permanently into four-three-two member annual elections and, therefore, will be out of compliance two years in every three.  CERJ advised that in order to comply with the Bylaws, in 2006 three members should be elected to three year terms and a fourth member elected for a two year term.  DDB 16 provides that the member elected for the shorter term shall be the candidate receiving the fourth largest number of votes.

[Advice to the Undergraduate Admissions Office 6/2005]

ASR 300 and 510 classify students as either graduate or undergraduate; thus, students are prohibited from simultaneous enrollment in graduate and undergraduate degree programs.  Graduate students may, however, take some undergraduate courses while enrolled to pursue a graduate degree, and undergraduate students may enroll in graduate courses, subject to program restrictions.

[Advice to the Faculty Advisors to the proposed joint Bachelor of Science/Master of Arts in Geography program 8/2005]

A joint Bachelor of Science/Master of Arts in Geography program was proposed.  CERJ advised that (1) Systemwide Senate Regulations 300 and 510 do not permit students to be enrolled in undergraduate and graduate degree programs simultaneously; (2) CERJ has no authority to waive any provision in Senate legislation; and (3) the only recourse would be to request a Variance from these Regulations from the Academic Assembly.

Status of Professors of Clinical ______ and Professors-in-Residence under Academic Senate Bylaw 55

[Advice to Vice Provost Barbara Horwitz 10/21/2003]

The term "Professor" in Academic Senate Bylaw 55 includes in its meaning Professors-in-residence and Professor of Clinical _____.

[Advice to Peter Rodman, Chair of the Faculty of the College of Letters and Science 10/28/2003]

Professor Rodman's inquiry raised a number of issues understanding of which requires the specific context.  CERJ's letter to him is, therefore, recorded in full.

28 October 2003

Professor Peter Rodman
Chair, Faculty of Letters and Science

Dear Professor Rodman:

Your e-mail of 10 October 2003, requests the formal advice of the Committee on Elections, Rules, and Jurisdiction (CERJ) with respect to the reconstitution of the Division of Biological Sciences (DBS) into the College of Biological Sciences (CBS).  Your message does not state at exactly what stage the matter now stands; but from our telephone conversations and by implication from the language of your request, we understand that you do not regard the proposed reconstitution to have been presented formally to either the Faculties of the College of Letters and Science (L&S) or to the College of Agricultural and Environmental Sciences (A&ES), to which all the Senate members in DBS belong.  However, the matter actually stands, we can certainly tell you what steps should be (or should have been) followed.

The Administration's procedures governing the process of dissolution and reconstitution are found in the Policies and Procedures Manual (UCD PPM 200-25) and in a joint Senate/Administration document "Universitywide Review Processes for Academic Programs, Academic Units, and Research Units" (dated Effective July 1, 1999 and known as the Compendium).  CERJ would like to emphasize that while the PPM and the Compendium set out a useful procedures, the authority over the dissolution and creation of academic programs belongs to the Senate.  It arises out of Regents' Standing Order 105.2.b, which reads in part:

The Academic Senate shall authorize and supervise all courses and curricula offered under the sole or joint jurisdiction of the departments, colleges, schools, graduate divisions, or other University academic agencies approved by the Board . . . No change in the curriculum of a college or professional school shall be made by the Academic Senate until such change shall have been submitted to the formal consideration of the faculty concerned.

This authority is reflected in Academic Senate Bylaw 51, which reads in part:

No change in the curriculum of any college or school shall be made by any legislative agency of the Academic Senate until the proposed change has been submitted to the formal consideration of the Faculty concerned.

That curricular authority extends to questions of dissolution and reconstitution is affirmed in the systemwide Legislative Ruling 4.84:

The authority of the Academic Senate over courses and curricula, derived from Regental Standing Order 105.2, entails, inter alia, the authority to discontinue academic programs. No delegation of this authority other than to agencies of the Academic Senate is authorized by Regental Standing Orders.

Our conclusion, therefore, is that not only must the plan for the dissolution and reconstitution be referred to the Faculties of L&S and A&ES, but that those plans require the approval of those Faculties and cannot move forward without it.  Approval of the Faculties is a formal action requiring a vote of the Faculty Assembly or a mail ballot in accordance with the bylaws of each of the two faculties.  Those bylaws permit special meetings of the Assemblies, so that this requirement does not in itself pose any barrier to expeditious action.

The originator of the proposal, in this case Dean Phyllis Wise of DBS, is supposed according to the PPM 200-25-IV to forward the proposal to the appropriate deans (in this case of L&S and A&ES).  They, in turn, are supposed to consult with the Faculties of L&S and A&ES.  Although we see no problem with the paperflow contemplated in the PPM, the use of term "consult" is far too weak to capture the authority of the Faculties in this matter under Regents' Standing Orders.  It is, therefore, essential that the Senate, through Divisional Chair Bruce Madewell, yourself, and the Chair of A&ES, insist that the formal plan be presented to the Faculty and approved before any further action is taken.

On behalf of the Committee,

Sincerely,

Kevin D. Hoover, Chair
Committee on Elections, Rules, and Jurisdiction

cc. Bruce Madewell, Chair, Davis Division
James Quinn, Chair, Faculty of Agricultural and Environmental Sciences
Phyllis Wise, Dean, Division of Biological Sciences
Thomas Rost, Executive Associate Dean of Biological Sciences

[Note:  Advice given on 11/24/2003 (see below) also concerns the conversion of the Division of Biological Sciences into the College of Biological Sciences.]

[Advice to Divisional Chair Bruce Madewell  11/17/2003]

The proper body to address issues related to non-student teaching assistants (TAs) is the Committee on Courses.  Academic Senate Bylaw 750 (D) provides that only persons authorized by the appropriate administrative officer, with the concurrence of Committee on Courses, may assist in Academic Senate courses.  Thus, the proper reviewing agency is the Divisional Committee on Courses.

[Advice to Bruce Madewell, Chair of the Division, Peter Rodman, Chair of the College of Letters and Science, James Quinn, Chair of the College of Agricultural and Environmental Sciences, and Joe Kiskis, Chair of the Undergraduate Council 11/24/03]

CERJ was asked to advise on the questions: 1) what authority does the Undergraduate Council exercise over the proposed conversion of Division of Biological Sciences into the College of Biological Sciences? and 2), what authority does the Undergraduate Council possess vis-à-vis the Faculties in curricular matters generally?

Davis Division Bylaw 121 reads in part:

B. This council shall have the following duties:

1. In consultation with the Faculties of the schools and colleges, to establish policy for undergraduate education on the Davis campus and to advise the Chief Campus Officer on all matters pertaining to undergraduate education.
. . .
3. In consultation with the Faculties of the colleges offering undergraduate instruction, to approve or decline to approve the establishment and discontinuation of undergraduate programs.

In a previous letter to Peter Rodman (28 October 2003 [see above]), the Committee on Elections, Rules, and Jurisdiction advised that any change in the curriculum, including the dissolution of an academic program such as DBS and its reconstitution into a college must be "submitted to the formal consideration of the faculty concerned" (Standing Orders of the Regents 105.2.b and Academic Senate Bylaw 51, clarified by Legislative Ruling 4.84).  CERJ concluded that:

not only must the plan for the dissolution and reconstitution be referred to the Faculties of L&S and A&ES, but that those plans require the approval of those Faculties and cannot move forward without it.  Approval of the Faculties is a formal action requiring a vote of the Faculty Assembly or a mail ballot in accordance with the bylaws of each of the two faculties.

In light of our previous opinion, we conclude that the language of DDB 121 requiring only "consultation" between the Undergraduate Council and the Faculties is too weak and suggests, in a highly misleading manner, that the Faculties ultimately must defer to the authority of the Undergraduate Council.  This bylaw may have been constructed by analogy with the bylaws governing the Graduate Council.  But there is an important difference:  ASB 50.A grants explicitly subordinates Faculties to the Graduate Council on certain matters, but there is no parallel subordination on undergraduate matters.  We, therefore, reaffirm our previous opinion.

[Note:  subsequent to our advice Davis Division Bylaw 121.B was amended to clarify the role of the Undergraduate Council.]

[Note:  Advice given on 10/28/2003 (see above) also concerns the conversion of the Division of Biological Sciences into the College of Biological Sciences.]

[Advice to Joe Kiskis, Chair of the Undergraduate Council 1/1/2004]

This advice was a response to particular questions, some of which referred to Divisional Guidelines, a category of divisional rules that were eliminated or converted into divisional regulations in Spring 2004.  Only parts of the advice that are of continuing relevance are reported here.

Question:  It appears that our implementation of Subject A for those students who enroll without having already satisfied it (i.e. English 57) is not in the DD Regulations or Guidelines. It is in the Catalog.  By what authority is it in the Catalog? By some previous "official" determination of Prep. Ed. or the Representative Assembly that was not a Regulation or Guideline? By an informal negotiation between Prep. Ed. and the administration? ...

CERJ knows nothing of the history of Subject A or its relationship to the Catalog.  As a general point, the Catalog itself is, at best, a convenient record of procedures and rules relevant to students; it is not an authority; and being in or out of the Catalog, is not decisive.  Nevertheless, it is clear that the Catalog represents a major conduit between Senate curricular authority and the student.  It should, therefore, present an accurate reflection of the rules and policies of the Senate.  In times past, the Catalog was reviewed by appropriate Senate committees.  It is probably time to reinstitute such review.

Question:  Could the Prep. Ed. committee just do it, and that would be the end of the story?

Preparatory Education is certainly the right committee.  CERJ believes that the rules on Subject A ought to be embodied in most cases in Regulations.  Regulations must be formally adopted by the Division in a vote of the Representative Assembly or a mail ballot.  If any policies of the committee are weaker than Regulations, they must be adequately memorialized (with the date of adoption and authority) in a way that students will have access to them.  We hope to propose to the Division a more systematic way of preserving such records in a publicly accessible form; but, in the meantime, committee policies might, for instance, be posted on the Division's website and incorporated into the Catalog (with appropriate oversight from divisional committees).  The Committee on Courses of Instruction has a nice website attached to the Davis Division site that may serve as a model.

[Advice to Vice Provost Barbara Horwitz at the request of a member of the Division 1/27/2004]

A faculty member has brought to the Committee on Elections, Rules, and Jurisdiction's (CERJ's) attention the following passage from the APM (Section UCD 220 Exhibit A):

Within the limits of Bylaw 55, departments must decide upon their own voting procedures and submit those procedures in writing, through their dean, to the Oversight Subcommittee of the Committee on Academic Personnel (CAP) for review. Departmental voting procedures may be reviewed every year.

In personnel actions the recorded vote should clearly separate the view of faculty members normally eligible to vote on an action from those to whom the department has extended the right to vote. When a separate recording of votes could breach confidentiality, the department chair shall aggregate the vote so that confidentiality is maintained. No vote need be recorded in cases where only one faculty member is eligible to vote.

He points out that it is inconsistent with the advice about Senate Bylaw 55 that you received from the Committee on Elections, Rules, and Jurisdiction (CERJ) in our memo of 17 October 2001, the relevant portion of which read:

...the vote may be extended to tenured faculty who are below the rank of the faculty member being evaluated or it may be extended to non-tenured Senate members.  In such cases there are no provisions for recording the votes of those entitled by default separately from those entitled by extension.  It would be invidious to record or report separate votes.

Our advice was given with respect to a question about Exhibit D, but the same considerations apply directly to Exhibit A.  CERJ suggests that the passage in question simply be deleted, with the possible exception of the last sentence.

Exhibit A also states:

Within the limits of Bylaw 55, departments must decide upon their own voting procedures and submit those procedures in writing, through their dean, to the Oversight Subcommittee of the Committee on Academic Personnel (CAP) for review. Departmental voting procedures may be reviewed every year.

Although CAP must be informed of the voting procedures of departments, procedures with respect to some questions require CAPs review (and approval), while procedures with respect to other questions are matters for the departments to decide on their own.  CERJ advised Linda Bisson on the intricacies of when CAP approval is required in a memorandum dated 15 April 2002.  I attach that memorandum.  It would have been better if you had been copied on it in the beginning.

This passage is also problematic in that it says that procedures may be "reviewed every year" and that procedures must be submitted through the dean.  ASB 55 actually says that one particular class of changes must be maintained for a full calendar year (12 months) before any additional changes are made.  It does not refer to "review" in the sense in which CAP might review and approve a change.  What is more, it does not permit (as one reading of Exhibit A might suggest) a change in Winter 2004 followed by a further change in Fall 2004 -- these fall in separate academic years but are less than 12 months apart.  Voting procedures under ASB 55 are a Senate matter.  Therefore, communication between the department and CAP should be direct and not brokered through the dean.

CERJ suggests that this section of Exhibit A might be redrafted as follows:

Within the limits of Bylaw 55, departments must decide on their own voting procedures.  The Oversight Subcommittee of the Committee on Academic Personnel (CAP) must be informed in writing of all changes in voting procedures and must, where required by Bylaw 55, review and approve them.

[Advice to Peter Rodman, Chair of the Faculty of the College of Letters and Science 2/12/2004]

Professor Rodman highlighted two concerns:  First, that the proposed process bypasses the normal responsibilities of Senate committees in a way that might violate Senate bylaws; and, second, that it might impose costs on Faculties that they are not able to bear.

Academic Senate Bylaw 200 and Davis Division Bylaw 99 establish the Committees on Research at the systemwide and divisional levels as the appropriate bodies with which the Administration should consult when it seeks Senate advice on research matters.  Research funding, however, is not an area in which the Senate maintains firmly protected rights as it does, for example, with respect to the curriculum or admissions.  Thus, while prudence and good management might indicate that the Vice Chancellor for Research should consult with the Senate in undertaking grant review, we do not see that he is obligated to do so.  In this case, Vice Chancellor Klein appears (on the basis of his memorandum) to have consulted with the Committee on Research.  That committee seems to have agreed that Senate review should have occurred at a more local level.  This may or may not be a wise judgment, but we do not find that there is any barrier to consultation occurring with some other body than the Committee on Research provided that it agrees.

Where there may be a problem is the imposition of an obligation to review proposals on a Faculty.  It is unclear from Vice Chancellor Klein's memorandum whether the new process requires review of grant proposals by College Executive Committees or other Faculty committees or merely by Senate members (i.e., "faculty").  Your letter to Dean Langland [of the Division of Humanities, Arts, and Cultural Studies] strongly suggests that you perceive that the process imposes an obligation on your Faculty – in a sense, that you have been subject to an unfunded mandate.  If this is in fact what has happened, then CERJ agrees that it would violate Senate bylaws.  Neither an Administrator nor another Senate committee may impose a duty on a Faculty or any of its committees outside the duties set out in the Faculty's or committee's enabling bylaw.  If the Vice Chancellor or the Committee on Research want the Faculty or its committees formally to undertake review of grant proposals, then they would have to reach a mutually acceptable agreement with the Faculty or committee.  It cannot be a unilateral imposition.

[Advice to Divisional Chair Bruce Madewell  2/12/2004]

Chair Madewell sought the advice of CERJ with respect to the a case raised by Peter Rodman, Chair of the Faculty of the College of Letters and Science.  Rodman anticipated that a graduate student would

petition . . . the Assembly to reverse his disqualification and allow him to be readmitted to attempt to complete his degree. . . The petition will cite cause as defined in the Graduate Guide, . . . published on the Graduate Division's web site. The suggested course of action would be that the Executive Council consider appointing a special committee to review the case in order to inform, and possibly to make a recommendation, to the Representative Assembly so that when the petition appears on the agenda, the Representatives have a basis for a vote.

The bottom line is that the procedure that Professor Rodman proposes is perfectly acceptable.  In fact, as we note below, depending on what is actually requested in the petition, the Executive Council may be able to decide the matter.

That is the simple answer.  It may, however, be worth clarifying the issue somewhat further.  We have previously maintained that students under various Senate and Davis Division bylaws have a right to be heard before appropriate committees.  The Secretary on receiving a petition must decide to which committee it ought to be referred.  The Representative Assembly might be an appropriate committee (e.g., when the petitioner challenges the fairness of another committee), and there is a place in the Representative Assembly agenda for student petitions.  There is no right of action on a student petition, but a committee member or member of the Representative Assembly could always introduce motions aimed at securing an action.

The particular case that Rodman brings before us raises some special issues.  He proposes that the Executive Council form a subcommittee to investigate the students case and to report on it to the Representative Assembly.  CERJ believes that this is entirely appropriate.  Our view is reinforced by a provision of the Executive Council's bylaw that we have previously overlooked in commenting on this issue (relevant part in bold):

DDB 72.C.6:  To act on behalf of the Davis Division in recommending to the President of the University candidates for degrees and honors in a school, college or graduate division subject to the jurisdiction of the Davis Division. At its discretion, the Executive Council may recommend candidates under suspension of Divisional and Senate Regulations, provided that each such petition submitted by a candidate has been approved by the appropriate faculty or the Graduate Council. Such petitions may include those for the awarding of posthumous degrees. The committee, after forwarding its recommendations to the President, shall maintain in the Academic Senate Office a record of its actions, including separate lists of the names of candidates recommended under suspension of the Regulations.

Thus, the Executive with the concurrence of the Graduate Council could take a decision on the matter if the question came down to one of whether the normal regulations are to be suspended to grant the petitioner a degree.  This provision would appear to leave the matter hostage to the Graduate Council, but since all committees are answerable to the Representative Assembly, the Representative Assembly could overrule the Graduate Council on this.

We know from separate communication with Peter Rodman that he is concerned with the role of the Graduate Division and the Graduate Dean in deciding such a case . . . CERJ naturally believes that any evaluation needs to be made by people who are not parties to the complaint and who do not have any vested interest in the outcome.  . . . On the matter of principle, Professor Rodman pointed out the following entry on the Graduate Division webpage:

You may submit an appeal for reconsideration of disqualification for cause to the Administrative Committee of the Graduate Council via the Associate Dean of Graduate Studies. Appropriate causes include (a) procedural error, (b) judgments based upon non-academic criteria, (c) personal bias, or (d) specific mitigating circumstances contributing to your performance. Questions of academic judgment or evaluation will NOT be considered as appropriate basis for appeal. If the Associate Dean determines that the appeal is based on cause, the appeal will be submitted to the Administrative Committee of the Graduate Council. The Administrative Committee will make recommendation to the Dean who will make the final decision.

CERJ believes that the power over this matters rests in the Graduate Council and not with the Graduate Dean.  If the dean exercises power, he would do so as a service to the Graduate Council.  CERJ is, however, not convinced that the Davis Graduate Council can redelegate its authority to the Dean.  Academic Senate Bylaw 330.C permits a Graduate Council to redelegate its authority, but only as provided by divisional bylaws.  CERJ is unable to locate any provision in divisional bylaws that establishes any authority to redelegate.  Even were such authority established, Graduate Council can always reclaim it.

[Note:  subsequent to this advice, Graduate Dean Gibeling and Graduate Council Chair Alan Hastings cited Academic Senate Regulation 904 as granting power of dismissal of graduate students exclusively to the Graduate Dean.  CERJ, however, believes that ASR 904 is inconsistent with Senate Bylaws and has sought a legislative ruling confirming that interpretation from the University Committee on Rules and Jurisdiction.  UCRJ's ruling has not been issued as of 28 April 2006.]

[Advice to the Department of Statistics (transmitted through Divisional MSO Marcia Thomson) 2/17/2004]

The relevant legislation is Davis Division Bylaw 29.F, Academic Senate Bylaw 35.C.2, and Academic Senate Legislative Ruling 12.75.  The upshot of these is straightforward.  While a department can engage students in its committees, they may not vote on the final outcome of any Academic Senate business.  In particular, they may not vote on curriculum or personnel matters.  In general, they may not vote on any departmental decision that becomes an input into a Senate process or advice the Senate gives to the Administration.

[Advice to Divisional Chair Bruce Madewell  2/17/2004]

Standing Order of the Regents 110.3 governs this question and places the power in the hands of the President in consultation with the Senate. Senate Regulation 730 states:

Except as specified in Regulations 732 and 734, each diploma, certificate or other formal academic testimonial proposed for regular use in the University by its agencies or officers is subject to the approval of the Assembly or its agent on recommendation of the Division concerned. (Am 24 May 68)

The Division could ask for a change, but the change would have to be an action of the Division and, therefore, of the Representative Assembly.  Ultimately, approval of the UC Office of the President is required.

[Advice to Peter Rodman, Chair of the Faculty of the College of Letters and Science 3/17/2004]

Professor Rodman's inquiry particularly concerned a proposed major in Techno-Cultural Studies

As CERJ understands it, the proposal for a major in Techno-Cultural Studies is put forward under the aegis of a Program in Techno-Cultural Studies that already exists and, indeed, already offers classes.  It does not, therefore, fall under procedures in the Policies and Procedures Manual with respect to the establishment of new programs.  We have no view as to whether the program was established appropriately.  We consider only the issue of the process for the creation of a major to be offered by the program.

Standing Order of the Regents 105.2 (a) states that:

The Academic Senate, subject to the approval of the Board [of Regents], shall determine the conditions for admission, for certificates, and for degrees other than honorary degrees.

SOR 105.2 (b) states that:

The Academic Senate shall authorize and supervise all courses and curricula offered under the sole or joint jurisdiction of the departments, colleges, schools, graduate divisions, or other University academic agencies approved by the Board, . . . No change in the curriculum of a college or professional school shall be made by the Academic Senate until such change shall have been submitted to the formal consideration of the faculty concerned.

In our view, a major is a course of study or curriculum within the meaning of the Standing Orders.  The Senate, therefore, is clearly and unambiguously assigned exclusive authority over the creation of majors.  As such, any consultation with the Administration is formally a courtesy.  Of course, offering a major, as a practical matter, requires resources that are controlled by deans and other administrators.  Consultation may, therefore, be desirable.  It is not required.

Recently, CERJ has addressed the procedures of the Senate with respect to curricular design.  Consistent with that advice, we believe that the proposed major would have to have the support of the Faculty of Letters and Science expressed in accordance with its own procedures.  It would also require the support of the Undergraduate Council.  Furthermore, courses within the major would require the support of the Committee on Courses of Instruction.

[Advice to Vicki Smith, Chair of the Committee on Committees 3/25/2004]

Question:  Does the Committee on Committees or the Executive Council of the undergraduate Colleges appoint the three members representing the executive or program review committees of each of the colleges offering undergraduate instruction on the Committee on Undergraduate Instruction and Program Review?.

CERJ finds that Davis Division Bylaw 121 is ambiguous; but we believe that, since the function of these committee members is to represent their colleges, the colleges are best placed to make the appropriate appointments.

[Advice to Professor Alan Jackman, Department of Chemical Engineering and Material Science 3/31/2004]

In previous advice on the authority of faculties (see entries for 10/28/2003 and 11/24/2003 above), CERJ concluded that both the Standing Orders of the Regents and Senate bylaws give the faculties strong and protected rights with respect to curricular matters.  A particular divisional bylaw relevant to the case you present is DDB 138, which reads:

Each Faculty is authorized to establish requirements for graduation in addition to University requirements.

CERJ concludes, therefore, that the power to establish "gateways," including ones that set GPA standards that may end up with students in good standing being ejected from the major, lies with the Faculty of the College of Engineering.

[Advice from Kevin Hoover, Chair of CERJ to Vice Provost Barbara Horwitz 4/15/2004]

Vice Provost Horwitz inquired about the acceptability of voting procedures propose by the Faculty of the College of Agricultural and Environmental Sciences.  The advice draws on and confirms a previous opinion of CERJ dated 17 October 2001 (see above).

The proposed voting procedures seek to divide the evaluations of A&ES employees into I&R and AES components and to report the votes separately.  The key distinction as far as Bylaw 55 and the Code of the Senate generally is between Senate and non-Senate personnel.  I'm not sure whether "I&R" is co-extensive with "Senate," so I am not sure whether the line is drawn quite right in this proposal.  The rule is simply this:  only members of the Senate are permitted to vote on the instructional components of the performance of Senate and of non-Senate personnel.  (What is more, although this point was not made in our earlier opinion, only Senate members can vote on advice of any kind given to Senate committees.  Therefore, inasmuch as departments are providing advice to CAP, it is only the Senate members whose votes can be recorded.  You can, of course, take advice from anybody directly on the non-instructional components of personnel performance.  That advice is to you and not to CAP.)

From Jim Quinn's explanations to me, it looks like only a few people are completely AES with no I&R component.  If those with some I&R component are Senate members, then the fine division of their voting into different percentage components hardly matters.  All that is important is that non-Senate members, which I take to be the status of the few pure AES personnel, do not vote on the evaluation of the instructional component of anyone's performance and they do not vote on advice that is given to CAP (which would violate ASB 35.C.2).  If these voting procedures achieve that separation, they are OK.  As you can tell, were I writing them, I would adopt different language that drew the distinctions along the Senate/non-Senate line, rather than along I&R/AES line.  But it is the substance that matters.

An aside, going where angels fear to tread:  Jim Quinn's memo reports the objection to Bylaw 55 that it confers a kind of second-class citizenship on non-Senate personnel.  It is important to recognize that it there are indeed two classes -- whether one is higher and the other lower, it is unnecessary to decide.  ASB 55 is not the source of this distinction.  It arises in the Standing Orders of the Regents.  In creating the Senate, it vested it with rights over the curriculum, including the right to decide who are competent instructors and to evaluate their performances, that cannot be ceded to other bodies.  We should think very careful as we multiply classes of personnel who operate in domains that are restricted to the Senate but are not made members of the Senate, enjoying both its rights and privileges and subject to its personnel processes.  The cost of doing this is to multiply the occasions for friction.  There is, however, no way in which the Senate can readily accept non-Senate personnel as its peers in every respect without surrendering the autonomous role that the Regents have granted to it.  The Senate must jealously protect that.

[Advice to Divisional Chair Bruce Madewell  4/27/2004]

University Extension Dean Pendleton raised a question about a proposed procedure for letting the Graduate Group in Geography approve courses in the Extension in the absence of a Department of Geography.  As Dean Pendleton rightly points out, Regent's Standing Orders explicitly exempt non-degree-credit extension courses from Academic Senate oversight.  CERJ therefore believes that Dean Pendleton can adopt whatever procedures that he believes are most effective with respect to course approval.  If he trusts the Graduate Group in Geography, it is not for the Senate to gainsay his judgment.

[Advice to Chris van Kessel, Chair of the Department of Agronomy and Range Science  4/27/2004]

Professor van Kessel, acting as Chair of the Plant Science Implementation Committee in College of Agricultural and Environmental Sciences, posed the following questions concerning the consolidation of four departments (Vegetable Crops, Environmental Horticulture, Agronomy and Range Science and Pomology) into one large department of Plant Sciences:

· Does such consolidation require a faculty vote of approval?
· What sort of consultation is needed and has to be documented before the proposal goes to the Academic Senate?
· If a vote by the individual faculty members is needed, is this stated in one of the Academic Senate bylaws (e.g., Bylaw 55)?
· Can the Academic Senate reject the consolidation of the 4 departments or does it merely have to be consulted with the Provost retaining a right to ignore its recommendation?
· Is a vote of the four affected departments needed?

CERJ replied as follows:

What you are doing is  clearly a consolidation of departments as contemplated by PPM Section 200-25 (Transfer, Consolidation, Disestablishment, and Discontinuance of Academic Units and Programs):  http://www.mrak.ucdavis.edu/web-mans/ppm/200/200-25.htm. That section makes a "General Policy Statement":

The process for the transfer, consolidation, disestablishment, or discontinuance of units and programs shall be in accordance with the University's system of shared governance and shall be consonant with the relevant Universitywide policy statements cited in this section.

The shared governance part of that requires consultation with the appropriate Senate bodies:  the PPM notes that consultation should include the Executive Committee of the College of A&ES, as well as the Committee on Academic Budget and Planning Review and the Graduate Council.  The right way to do this is, at the college level, to contact Jim Quinn, the Chair of the Faculty of A&ES.  He can determine how the consultation process should work at the Faculty level.  It may need to be looked at by your Faculty as a whole operating through the A&ES Assembly, particular if it involves any curricular changes.  When things are OK there, it should be forwarded to Bruce Madewell, the Chair of the Davis Division, who can make sure that the relevant divisional Senate committees are in the loop.  If the proposed consolidation has implications for the undergraduate curriculum, the matter may also need to be looked at by the Undergraduate Council, and the Committee on Courses of Instruction.

Wisdom and prudence would dictate that departments should not be consolidated without consultation with the members of the affected departments.  Any such business is governed by Academic Senate Bylaw 55.A, which guarantees voting rights over substantial department business to all Senate members in an department, except where there has been formal delegation to a committee (and in personnel matters that are governed by Section B).  Nevertheless, although wisdom and prudence suggest consultation, the ultimate Senate authority at that level is in the Faculty of the College rather than the departments -- meaning I doubt that a department can veto consolidation if the Faculty of A&ES and the appropriate divisional Senate committees and Administration support it.

This is obviously not a quick process.

So, the pointed answers to your question are:

1. It requires approval by the Faculty of A&ES according to its procedures, which may include a vote of the Faculty Assembly or the Faculty as a whole if it involves curricular change.

2. Whether a faculty vote is needed depends on what you mean by "faculty".  Approval by the Faculty of A&ES is needed (see 1 above) and is governed by its bylaws.  Approval of the department is prudential (see 4 below) and is governed by ASB 55.

3. Yes, Senate approval is necessary, both because departments are from one perspective committees of the Senate and because the PPM requires it from the Administrations side.  The Senate can reject such a change.  My view is that the Provost cannot ignore the Senate (others may have a different view here and it would be an interesting, if ugly, fight if it came to that).

4. Consultation with the affected departments is prudent.  Such consolidation would normally require a vote governed by ASB 55.

[Advice to the Registrar's Office 6/10/2004]

A question arose with respect to a student who took a course and received the grade NP.  The same student took the same course and received a D.  The Dean's Office believed that the student is not repeating the course more than once (requiring approval of the appropriate dean under Davis Division Regulation A540, F (3)) since a grade of NP was received.  However, the Registrar's Office believed that, should the student wish to take the course again, it would be the 3rd attempt requiring approval of the appropriate dean.

CERJ agrees with the Registrar's Office.  According to DDR A540 (F) (1), a course may be repeated if the student receives an NP grade.  That implies, for purposes of the regulation, that the course has been taken (otherwise it would not refer to repeating it).  The Dean's Office interpretation seems to imply that a course taken with an NP grade somehow does not count or was not a real attempt.  There is no rationale for that.

So, in this case, the student has attempted the course once, receiving an NP, and once, receiving a D. To take it again is clearly a third attempt.  Then DDR A540 (F) (3) kicks in:  it needs decanal approval.

Voting rights of zero-time Senate appointments in academic departments

[Advice to a department chair 9/5/2002]

The principal question was whether it is permissible to restrict the voting rights of a zero-time appointment in a department.  The Standing Orders of the Regents and Academic Senate Bylaw 55 guarantee the right to vote on departmental business to all Senate members in a department.  ASB 55 restricts this right only with respect to voting on personnel actions.  Those restrictions all involve rank and step.  Departments have some flexibility to modify voting – for example, to allow Associate Professors to vote on actions of Full Professors when the default follows an at-or-above rule.  They do not, however, have the right to restrict voting on the basis of a member's zero-time or fractional-time appointment.  While the answer is clearly that every Senate member of a department has full voting rights in that department, except as limited by ASB 55, it is perfectly possible for such members to adhere to a custom of not voting.  But that would be custom – it can not be insisted upon and there are no acceptable enforcement mechanisms.

The suggestion was also made that a department might wish to remove members with zero-time appointments if it became clear that they had full voting rights.  This turns out to be a puzzling issue.  The puzzle is that the Standing Orders of the Regents, Senate bylaws, Academic Personnel Manuals and the Policy and Procedures Manual generally refer to Senate membership and Faculty membership but not to departmental membership.  It is assumed that departments must vote on admitting new faculty, but the relationship of the faculty member to his or her department after that point is simply not mentioned as far as we can tell.  Can a department decide that a colleague is no longer a member of that department?  Can a dean reassign a department member to another department?  These are questions for which CERJ can find no explicit answers.

Nevertheless, the Committee is inclined to the view that the reason that we do not find explicit answers is that, implicitly, both Senate and Administration rules assume that a faculty member's departmental affiliation is his or her most basic affiliation and requires no further elaboration.  For example, it is one's departmental membership that determines to which Senate Faculty one belongs.  Senate members are protected from demotion or dismissal without due process.  But demotion or dismissal from what?  We believe that this protection is first and foremost a protection for departmental membership.  Whatever protects us as Senate members protects us as department members.  Since no distinction is drawn anywhere in Senate or Administration rules between zero-time, fractional time and full-time faculty, if departments were able to vote out zero-time members, surely they could just as well vote out full time members.  We cannot believe that departments can cast out unfavored members with full-time or fractional time appointments.  We, therefore, regard it as a reductio ad absurdum proof that departments cannot vote out zero-time members.

CERJ recognizes that our conclusion rests on the interpretation of an absence that would make a post-modern literary scholar blush.  Since the governing rules are not Davis rules, but systemwide rules, a definitive interpretation would have to come from the University Committee on Rules and Jurisdiction.  And the only resolution might be to propose explicit legislation clarifying the issues.

Absent such resolution, CERJ's own best interpretation is this: All Senate members in a department have full voting rights; and no Senate member may be dismissed from a department except for cause and with due process.

[Advice to Divisional Chair Bruce Madewell 9/11/2002]

In a letter dated 2 July 2002, Senate Chair Jeff Gibeling asked CERJ to comment on the Committee on Academic Personnel's policy on recusal.  We have looked at the supporting
documents (various statements of the policy) and have received an additional letter (via e-mail date 10 July 2002) from Linda Bisson, Chair of CAP with some questions for CERJ.

CERJ believes that Academic Senate Bylaw 55 does not permit any Senate committee to forbid its members to vote on personnel cases in their departments – that is a protected right.  CAP is, however, entitled to organize itself and, indeed, has a duty to define policy on conflict of interest.  CAP, therefore, has the authority to establish a policy that its members should not vote on a case on which they have already voted in their department.  They do not have to adopt this policy, but they may.  What they may not do, is to state ex ante that a member of CAP loses the right to vote in the department.

As far as CERJ can tell from the policy statements we have seen, CAPs policy is consistent with these rules.
 

[Advice to Committee on Academic Personnel chair Linda Bisson 9/11/2002]

Professor Bisson asked us independently for advice on the recusal of spouses.  CERJ finds no authority in ASB 55 or other Senate bylaws for restricting spouses from full participation in each other's cases.  We note, however, that the Academic Personnel Manual both sanctions departments hiring spouses and other near relatives (including domestic partners) and says the following:

520-16 Restriction.  A member of the University staff shall not participate in the processes of review and decision-making on any matter concerning appointment, promotion, salary, retention, or termination of a near relative.

As employees of the University, faculty are certainly governed by Administration rules with respect to many aspects of our job performance.  That seems completely correct legislatively and reasonable.  Yet these rules are not Senate rules.  It is the responsibility of the Administration, and not of the Senate or its committees, to enforce the APM.  If CAP or anyone else in the Division decides that a Senate restriction on the participation of near relatives is necessary, we will have to work to amend ASB 55; we cannot do it through local policy or Divisional Bylaws.

[Advice to Divisional Chair Bruce Madewell 9/17/2002]

CERJ, among other committees, was asked to comment on the proposed establishment of the Division of Biological Sciences as a college, in particular, to address the question of whether the simple expedient of a name change would be feasible.  CERJ has looked into the matter and believes that we can offer some guidance.

The controlling authority is Regent's Standing Order 110.1 Academic Units and Functions, Affiliated Institutions, and Related Activities of the University :

The Board has established the colleges, schools, graduate divisions, certain other major academic units, affiliated institutions, and related activities at the several campuses and facilities of the University of California, and, upon the recommendation of the President of the University, with the advice of the Academic Senate, has established the degrees awarded by the several academic units of the University. The Board shall approve the establishment and disestablishment of colleges, schools, graduate divisions, and organized multicampus research units, upon the recommendation of the President with the advice of the Academic Senate. Detailed provisions of such establishment and disestablishment shall be set forth in the minutes of the Board. The Board may amend these provisions by resolution, upon recommendation of the President of the University. The President is authorized to approve name changes of academic units and establishment, name changes, and discontinuance of degree titles, upon approval by the Academic Senate.

CERJ reads SOR 110.1 as affirming that only the Regents may establish a college.  The process of name change referred to in the standing order does not permit a college to be created through the backdoor.  The procedure for name change is meant to cover a case such as redesignating the College of Letters and Science as the School of Scientific Letters.  In that case, no substantial change in organizational status is involved.  Even though DBS already looks rather like a college, it is not one; the Regents have never made it one; and, if it wants to be one now, it needs Regental approval.

The Division would be involved in the process in the following ways:

1. The Administration would initiate the establishment of DBS as a college by applying to the Regents through the President.  The President, in turn, is required by SOR 110.1 to seek the advice of the Senate.  The Academic Council is the normal source for such advice.  They may, if they wish, initiate further consultation with the Division.  CERJ believes that it would be prudent for the Chair of the Division to alert the Academic Council if, and when, the matter is referred to the President in order to ensure that he does ask for and receive Senate advice.

2. Clearly, if DBS were to become a college the Administration would have to provide the infrastructure and organization of a college for a new CBS to take up those functions now covered by L&S and AES.  Although that is fundamentally the Administration's problem, it surely would have budgetary implications on which they must confer with CAPBR.

3. The Division would want to pass a bylaw creating a new Faculty of BS.

4. CERJ would have to work with their faculty to create a set of functioning bylaws.  That cannot be done through the dean's office.

[Advice to a member of the Faculty of the School of Veterinary Medicine 11/5/2002]

The general concern is the role of the Administration of the School of Veterinary Medicine in the curricular committees of the Faculty of Veterinary Medicine.  It is important to distinguish between what is formally permissible and what is in keeping with the spirit of shared governance as expressed in the Standing Orders of the Regents.  The underlying conception of the Regents is that the faculty rather than the Administration should control the curriculum.  The matter is complicated by the fact that most senior academic administrators are also members of the Senate and retain rights within the Senate.

CERJ believes that in a well-ordered Faculty, consistent with the Regents' Standing Orders, Administrators would take a secondary role in curricular matters.  It is usual in most Faculties for certain administrators to serve as ex officio members of various committees.  It is unusual for several to serve on the same committee – either ex officio or by election (or appointment).  To do so stacks the deck and undermines the spirit of shared governance.  There are clear risks to faculty independence when Administrators dominate committees.  After all, they often control money and influence personnel actions.  If they are ex officio appointments, they have a more enduring presence on the committee, which helps them to control the agenda.  For all these reasons, faculty independence is fostered by more separation between the Administration and the Faculty.

But who are the guardians of shared governance and faculty independence?  The Code of the Senate provides only limited direct protection.  The main resource is found in the faculty themselves.  Each Faculty has the right – consistent with the bylaws of the Senate and the Division – to organize itself.  The members of the Faculty have mechanisms through which they can insist on a separation of powers between the Administration and the faculty.  Bylaws may be written or amended to shift the balance of power toward ordinary faculty.  Faculty may elect people to the Executive Committee or other committees who will ensure that faculty interests are maintained.

Let us turn to your three specific questions:

1. Does the involvement of the Administration of the school in the curriculum, and conditions for admissions, degrees, and certificates as defined in the schools bylaws violate the Standing Orders of the Regents or the Code of the Senate?

CERJ agrees that the amount of involvement of the Administration in these matters is unusually high in the School of Veterinary Medicine and strains the spirit of shared governance.  However, we believe that this involvement is within the letter of the law.  The only direct restrictions imposed by the Code of the Senate are found in Academic Senate Bylaw 50.C and Davis Division Bylaw 137.  These bylaws prohibit the dean or other senior administrators of a Faculty from serving as chair of the Executive Committee.  Otherwise, they permit committees to be structured with administrators as ex officio members and permit the election or appointment of administrators who are also Senate members to committee posts.

2. Do the bylaws of the Senate protect its authority over the curriculum, and conditions for admissions, degrees, and certificates granted by the Standing Orders of the Regents?

There is no doubt that Standing Order 105.2 (a) and (b) grant the Senate authority over these matters.  The SOR 105.2 (b) reads in part:

The Academic Senate shall authorize and supervise all courses and curricula offered under the sole or joint jurisdiction of the departments, colleges, schools, graduate divisions, or other University academic agencies approved by the Board, except that the Senate shall have no authority over courses . . .  in professional schools offering work at the graduate level only . . . No change in the curriculum of a college or professional school shall be made by the Academic Senate until such change shall have been submitted to the formal consideration of the faculty concerned.

Since the School of Veterinary Medicine does offer undergraduate courses, its curricula (graduate, professional, and undergraduate) do in fact fall under Senate authority.  The last sentence quoted above entrenches the rights of the Faculty against higher Senate bodies.  It also, we believe, implies that, even in a professional school (unlike the School of Veterinary Medicine) that did not offer undergraduate courses, the faculty retains power over its own curriculum.

Do the bylaws of the Senate protect the authority of faculty on these matters?  With the exception of the restrictions discussed in answer to question 1, the main protection is in the right of a Faculty to organize itself and the right of all of its members to participate in its elections and deliberations.

3. Is it appropriate for non-ex officio administrators to serve on committees concerned with curricular and educational programs as regular members?

With the exceptions noted in the answer to question 1 above, as long as such administrators are members of the Senate, they retain the rights of all Senate members and may within the letter of the law be elected or appointed to these committees.  CERJ believes that, while this practice is permitted, it is contrary to the spirit of shared governance and ought to be discouraged.

[Advice to Vice Provost Barbara Horwitz on 1/27/2003 and 2/6/2003]

Part I (1/27/03)

CERJ believes that non-Senate members may not participate in Ad Hoc committees.  The reason, however, is not found in ASB 55, but in the Standing Orders of the Regents.  ASB 55 governs departmental voting rights, and as such does not apply directly to Ad Hocs.  Instead, we note that the Standing Orders grant the Academic Senate authority over the curriculum and with determining the competence of instructors who deliver that curriculum.  It would, then, be inappropriate to permit non-Senate members to evaluate personnel on curricular questions.  Our rationale is consistent with the advice that we gave you in a letter dated 17 October 2001 to the effect that non-Senate members should not evaluate Academic Federation or other non-Senate personnel on matters related to instruction.

Part II (2/6/03)

The follow-up question was whether a non-Senate member with special expertise could serve on the committee provided that he or she did not participate in the evaluation of the instructional component of the candidate's portfolio?

Ad Hoc committees are not Senate committees; therefore, Senate rules pertain to them only with respect to their association with duties assigned to the faculty by the Standing Orders of the Regents.  The Standing Orders assign the authority over all courses and curricula offered for academic credit to the Senate.  This was the basis for CERJ's previous opinions that only Senate members may evaluate a (Senate or non-Senate) candidate's performance in those areas.  The evaluation of no other area of faculty performance is similarly restricted by the Standing Orders.  Therefore, in principle, you could appoint an Ad Hoc with non-Senate members whose remit extended only to non-instructional questions.

We would emphasize, however, that this freedom is in principle only.  Practically, CERJ believes that it would be a grave mistake for you to do so.  There is no mechanism by which you could maintain a strict separation within the committee between those areas permissible and impermissible to the non-Senate member.  Even if such a member did not vote on instructional matters, how could you guarantee that he or she did not influence the  vote?  This strikes us as a privilege-and-tenure case just waiting to happen.

Furthermore, would you ask for separate votes on the instructional and non-instructional aspects of the case?  If so, what would the overall decision of the committee be?  There might not be any clear-cut result. In a three-member (or any odd-number-member) Ad Hoc, if one member were unable to vote on the instructional aspects of the case, the committee could end up divided one to one and, again, there would be no clear cut result.

If the problem is finding an appropriate assessor for a tricky personnel case, there would not be any objection that we can see to having an outside evaluation submitted at the level of the departmental review (much as outside letters are currently submitted in some cases) that would then go forward with the packet to be evaluated by a Senate-only Ad Hoc.  But to introduce non-Senate members into the Ad Hoc itself seems to beg appeals and protests.

[Advice to Chair of the Committee on Academic Personnel Linda Bisson 2/10/2003]

1) Can CAP request of all departments their actual procedures (not just who has voting rights, but how the voting process is conducted)?

On the one hand, CAP has a need to know that the votes that it receives are lawful; on the other, CAP is not authorized to render definitive judgments about correspondence with the bylaws.  CERJ believes that CAP may request documentation of voting procedures, even in the cases of procedures that do not require CAP approval.  What is more, they may ask for information on actual voting procedures.

2) Can CAP screen these for consistency with Bylaw 55 and either [sic] communicate back to the departments regarding ones that are in violation of Bylaw 55?

While CAP may form a preliminary judgment about the consistency of voting procedures with the bylaws, given that it is not authorized to interpret those bylaws, it should not communicate its judgments directly to departments.  The risk is that CAP's view might be regarded as authoritative or that departments might feel (incorrectly no doubt) that, given CAP's role in the personnel process, prudence would dictate compliance whether the judgment was correct or incorrect.  Instead, if CAP believes that a voting procedure is out of compliance, it should refer the matter to CERJ.

3)Who does have the authority to decide if the voting procedures violate 55 if CAP does not?

Subject to the procedures and limits set out in the Code of the Senate, CERJ has the authority to judge whether voting procedures comply with Academic Senate Bylaw 55.  CAP should refer all cases in which it believes that there is a problem to CERJ.

4) What recourse do faculty have if the claim is voting procedures were inappropriate if no voting procedures are actually on file anywhere nor approved by anyone?

A faculty member or CAP may bring the question of the consistency of departmental voting procedures directly to CERJ.  ASB 55 does require that voting procedures be formally adopted and documented.  This is an enforceable right of the Senate member.  However, CERJ is an interpretive body without any enforcement powers of its own.  Nonetheless, once CERJ has ruled that a voting procedure is inconsistent, it would then convey that information to the department.  In an ideal world, the department would rectify the situation.  If, however, the problem persisted, there are multiple avenues of redress.  a) Having a ruling in hand, CAP should decline to consider any cases that come forward under improper procedures.  b) The Vice-Provost for Academic Personnel can always directly intervene in a particular case, ignoring advice from the department inappropriately rendered.  c) A candidate who is judged on the basis of an improper vote and finds no other method of redress would have a strong case for an appeal to the Committee on Privilege and Tenure.

[Unsolicited advice from CERJ Chair Kevin D. Hoover to the Chair of the Committee on Academic Personnel, Linda Bisson, 5/15/2003]

I have just received the attached letter from you in my role as a department chair.  In my role as Chair of the Committee on Elections, Rules, and Jurisdiction, and as a member of the SCPPR committee that drafted the CAP bylaws, I am perplexed.  First, CAP is a committee of the Davis Division of the Academic Senate.  It works with, but does not answer to, the Vice Provost.  Second, the requirement that departments and CAP work out criteria of scholarship is a requirement of CAP's Senate bylaw and not of the Administration.  I therefore cannot see how it is that this matter is one on which a) the Vice Provost can give direction, b) you as Chair of CAP should be the conduit of that direction, or c) that deans should have any role whatsoever.

What is more, I believe that your letter reflects a misunderstanding of the bylaws governing CAP on two points.  (Please note that I speak here as individual and have not consulted with my colleagues on CERJ).

First, your letter states that the change to "established" criteria permits departments to choose their own criteria of scholarship and gives them the option of adopting the standards in the APM.  It does no such thing.  DDB 42.b.8 states that departments in conjunction with CAP must develop and publish standards for advancement.  It does not offer an option of reverting to the APM.  No doubt if a department were to propose such a standard and CAP were to accept it, that would suffice.  But that requires positive action both by the department and CAP.  The language of "established" criteria, which replaced the previous word "published" was introduced not to license the APM but to avoid an impasse in which an aggrieved faculty member would be barred from launching a personnel appeal because the department and CAP had yet to agree and publish standards.  That language occurs only in DDB 45, which governs review of personnel actions.

Second, your letter states that standards need the approval of the Dean and Vice Provost.  There is no warrant whatsoever for such a statement in the bylaws.  Indeed, it would be a gross violation of shared governance and the division of responsibilities if a dean or Vice Provost or other administrator were to be insinuated between the departments and CAP in this process.  In the process of developing standards, CAP may itself consider the views of the Administration, but it should not accept or allow direction from them, and in must not tell departments that such standards require the approval of a dean or Vice Provost.

Recently, shared governance and the proper separation between the functions of the Administration and the Senate have been very lively themes with respect to a number of issues.  The academic personnel process reforms of the last few years were in good measure implicated in these concerns, and considerable care was given to the demarcation of the lines of authority.  Am I missing something or has CAP slipped back into a subservient rather than co-equal role with the Vice Provost and the Administration?

[N.B. The letter that gave rise to this advice was subsequently withdrawn and a replacement letter that met CERJ's approval was circulated.]

[Advice to Divisional Chair Bruce Madewell 5/30/2003]

Information about petitions of students is sparse in the Code of the Senate.  Systemwide bylaws specify that petitions of students is one item on order of business for a divisional meeting.  Nothing in those bylaws clarifies or limits the scope of student petitions nor grants them any parliamentary force.  Systemwide regulations allow students to petition for variances.  Davis Division bylaws echo the systemwide bylaws both in making student petitions one order of business for a Representative Assembly meeting and in granting the Executive Council authority over petitions for variances.  And, like the systemwide bylaws, they are silent about other substantive content.  However, DDB 13.D, which defines the duties of the Secretary, reads:

"The Secretary of the Davis Division is authorized to refer directly to the appropriate standing committee any or all questions placed in his or her hands for presentation to the Davis Division, including petitions of students."

Only representatives and committee chairs are entitled to introduce motions, and only Senate members have the privilege of the floor.  Others sometimes speak as guests of the Division.

From these last two considerations, CERJ concludes that, while students may petition the Division on any subject, the proper disposition of student petitions is that they be referred to the appropriate standing committee as an informational input into their decision-making process.  In the case at hand, any student petition could be referred to the Grade Change Committee or to the Educational Policy Committee.  So, what are student petitions doing on the order of business for the RA?  We can only conclude that it flags the point in the meeting at which the existence of the petitions could be acknowledged and their disposition communicated to the RA.  Furthermore, since decisions of any other standing committee (for example, with respect to a variance of regulations) are, in principle, subject to the oversight of the RA, this would – should the matter arise – be the point in the meeting at which they would be introduced. If, for example, the petition were a complaint about the action of a standing committee, it may be appropriate to introduce the petition directly to the RA.  That may be the case here:  the students object to the rule change proposed by the Grade Change Committee.  That said, I do not see that a student petition can have any parliamentary effect:  it cannot introduce a motion, force an item onto the agenda, or serve as a conduit to commenting on a debate on the floor.

The practical upshot would seem to depend on exactly what the student petition asks for.  If it asks for an action by a standing committee, the Secretary should refer it to the standing committee.  If it expresses an opinion about a matter pending before the RA, then it would be appropriate to read it (or circulate it) to the members of the RA.  It cannot itself initiate any other action.  If it seeks an action and a member of the RA wants to champion it with a motion, amendment, or debate, that would be for the individual member to decide.  It would not, I believe, be appropriate for you as Chair or the Secretary to promote action at the request of students beyond referrals to committees or communications to members as already discussed.

To answer your questions specifically:

1) How do students file "petitions" with the Senate for an item to be considered by the Representative Assembly?

They submit them to the Secretary; the Secretary must decide which standing committees are appropriate (the RA is a standing committee).

2) Could a student(s) appear at Rep Assembly with a petition, for example, for a reconsideration of the Report from the Grade Changes Committee?

Students can petition on any subject.  A petition, however, does not initiate an action.  An action requires the voluntary intervention of committee chairs or members or members of the RA.  So, if on receipt of the petition, the Grade Change committee wanted to withdraw or modify its proposal, it could.  If on receipt of the report by the RA, members wanted to argue against the change (or, if it had already been enacted, to move to change it back), they could.

3) Would the Secretary consider the petition and render an opinion to allow the petition to be heard?  Or would (could) he defer it to committee for consideration by the Senate at a later date?

I read the charge to the Secretary as obligating him or her to take some action and refer the matter to some committee.  The Secretary has discretion to decide which is the appropriate committee (including the RA).  But I do not think that the Secretary can simply sit on the petition.  Whether a referral is made to another standing committee, which clearly would delay the day that it might come before the RA (if ever) or to the RA directly is up to the Secretary.  If the Secretary decides that referral is direct to the RA and a petition is received before the notice deadline for an RA meeting, it would seem expedient, although not, I think, absolutely required that it appear on agenda of that meeting rather than some later one.

[See Legislative Ruling 11.05]

[Advice to Divisional Chair Bruce Madewell and Undergraduate Council Chair Joe Kiskis 6/6/03]

This analysis was the result of a request from Professor Quirino Paris (Department of Agricultural and Resource Economics).  Professor Paris made the following points:

1. A large number of students (16 percent in the College of Agriculture and Environmental Sciences, for instance) are on the list for academic probation, disqualification, and dismissal.
2. There is some confusion among faculty, administrators, and in the catalogue about who has authority over who qualifies for this list and who decides policy and its enforcement.  The bylaws are, however, clear:  policy and enforcement are Senate matters, which may be delegated to an agent (for example, a dean) acting on behalf of the Senate.
3. Policy and implementation varies considerably between colleges.
4. Various associate deans have agreed to ignore the minimum progress requirements adopted several years ago by the Representative Assembly.
5. Transcript notations are confused, saying for example:  "Subject to academic disqualification" and "Good standing" on the same transcript referring to the same term.

 Independently, Professor Paris informed CERJ that Associate Dean Fred Wood (College of Letters and Science) refused to supply him with data about academic disqualification.

The issues raised call for two different sorts of response.  First, to clarify what rules govern academic disqualification.  Second, to consider whether the discretionary elements of the policy and its implementation are working as they should.  The first CERJ can supply.  The second falls under the purview of the Undergraduate Council.

A. Rules.  Professor Paris also is correct that both Senate and Division Regulations give to the faculty responsibility for determining disqualification (Academic Senate Regulation 900; Davis Division Regulation A552), although it is likely that the faculties of the undergraduate colleges and divisions willingly have opted to allow their Deans to be their "agents" – and that they would do so again, were the question put to them.  However, if Professor Paris's information is correct, some colleges/divisions appear to be out of compliance with one provision of ASR 902 (C):  "Annually, the appropriate officer of each college shall report to the Faculty concerned a summary of all actions undertaken under these regulations" (those dealing with probation and disqualification).  Those data should be supplied routinely, rather than waiting for the occasional conscientious faculty member to raise the hue and cry.

ASR 900.A.2 is clear regarding the conditions under which a student is "subject" to disqualification for failure to meet performance standards:  (a) if at the end of any term the student's GPA for that term is less than 1.5, or (b) if the student has completed two consecutive terms on academic probation without achieving a cumulative GPA of 2.0.  Students also are subject to disqualification if they fail to meet a minimum progress standard, but the Academic Senate Regulations leave to the Divisions the determination of what that specifically shall mean.  Davis Divisional Regulation A552 establishes that to qualify for minimum progress a student must pass an average of 13 units per quarter, calculated at the end of every quarter for the preceding three quarters.  The practical problem is that neither the Academic Senate nor the Davis Division Regulations state specifically what will happen when a student is "subject to academic disqualification."  Nowhere do Regulations say, beyond implication, that students who are "subject" shall not be allowed to register for additional coursework; and the Davis Division Regulations even allow students to take work on a Passed/Not Passed basis while disqualified!  This suggests that the Deans are not the only parties at fault; the faculty needs to get its house in order.

B. Actions.  CERJ strongly advises that Professor Paris's suggestions with respect to both the rules governing academic disqualification and its implementation be given careful consideration.  In particular:

(1) As Chair of the Division, Bruce Madewell should insist that Associate Deans Wood, King, Rost, and Ford provide the Senate with those reports on probations and disqualification in their respective units required under ASR 902 (C).  (Those reports should reveal the extent of the problem to which Professor Paris draws our attention.)
(2) The Undergraduate Council should determine what ought to happen when students are "subject to academic disqualification" – how long we really want to keep poorly performing students around when others are beating at the door.
(3) Once the Regulation is clarified by Undergraduate Council, the Senate should insist that the Deans comply with it, with respect both to GPA and to minimum progress requirements.  (In fact, CERJ is supposed to advise the Registrar with the responsibility of explaining to the Registrar on the Administration of Senate Regulations (DDR 71.B.7).  The committee would be happy to take an active role so long as the regulations are clear.)

Formulation and promulgation of committee policies including the Graduate Council policy on second Ph.D.'s

[Advice to Professor Paul Teller, Department of Philosophy 9/19/2001]

The Graduate Council is governed by Academic Senate Bylaw 330 and by Davis Division Bylaw 80.  Its authority to determine the rules governing admissions to graduate programs is clearly established in DD80 (B) 1.  CERJ nevertheless believes that authority does not permit pure discretion, but can be exercised only in the context of rules that must be established in accordance with the procedures of the Academic Senate and promulgated in such a way that the rules and the authority on which they are based are clearly known to potential students.  DD80(B)1 grants admission to "qualified" applicants.  CERJ believes that there must be some standard of qualification.  This is reinforced by DDB 80(B)11, which assigns the Graduate Council the duty to set "policies and standards".

The question is, then, whether the rule governing second PhDs is properly established and governs the case of the student in question.  In general, committees of the Division are subordinate to the Representative Assembly and to the Division.  Their actions must be reported to Representative Assembly, which may accept or reject their actions and, indeed, which may establish its own policies consistent with a committee's bylaw.  Beyond this general requirement on all divisional committees, ASB 330 explicitly states that the Graduate Council shall "[r]eport and make recommendations to the Division. . ."  The final authority, therefore, rests with the Division represented either by the Representative Assembly or a mail ballot of the membership as a whole.  CERJ believes that no rule proposed by any committee can be binding unless it has been presented to the Representative Assembly (typically in its Annual Report) or the Division for acceptance or rejection.  What is more, CERJ believes that a general principle of orderly governance implies that rules must be published in such a way that the people bound by the rules can reasonably know what they are and on what authority they are based.

CERJ believes that the rule governing second PhDs fails to meet these standards.  It is published only in the Graduate Handbook – a publication of the Graduate Division, an agency of the Administration, not of the Senate.  There is no indication that the rule is a Graduate Council or Senate rule.  There is no indication of when or how it was put into place.  While CERJ has not exhaustively researched the matter (although we did research it within the limits of what can be done on the web), we can find no indication that the rule was adopted by any proper procedure of the Graduate Council nor that it was submitted to the Representative Assembly for approval.  Professor Calvert, in his communication to you, admitted that he did not know the provenance of the rule.  It was, in his view, an established custom of the Graduate Council.  CERJ, however, does not agree with Professor Calvert that binding rules on these matters can be established by custom or long practice.  As far as anyone knows, the rule is a creature of the Graduate Division and not of the Graduate Council.  There is a long list of failures of the Graduate Division to respect the lines that separate its administrative practices from the authority of the Senate under Regents' Standing Orders.  There is no evidence that this is not another such case.

We conclude that the Graduate Council is incorrect in appealing to or attempting to enforce the rule governing second PhDs.  We strongly urge them to reverse their judgement in this case.

[Advice to a department chair 9/24/2001]

Neither the CERJ nor any other body of the Academic Senate has the authority to grant a department's request that it not be represented in the Representative Assembly.  The Regents of the University of California have entrusted the faculty in the form of the Academic Senate with a much higher level of control over the academic affairs than is typical of universities in the United States.  This is both a privilege and a responsibility of the tenured and tenure-track (i.e., "Senate") faculty.  There are many tasks that must be done to keep the University functioning that the Regents have assigned exclusively to the Senate.  And the Regents forbid the Administration to take over these responsibilities.  These burdens cannot be shunted off simply because they have become inconvenient.

Participation in running the affairs of the Senate takes time and imposes other burdens on many, many faculty members.  They, nevertheless, take on those burdens to uphold the faculty's key role in the shared governance of the university.  The request not to participate is a request to abdicate that responsibility.  If every department took the same position, the Senate and important functions of the University would grind to a halt.

[Advice to Divisional Chair Jeffrey Gibeling 10/1/2001]

A number of committees are charged with accepting student petitions, but no explicit mechanism is spelled out through which their decisions might be appealed.  However, a legislative ruling of the University Committee on Rules and Jurisdiction 8.95B says in part:

Under ASB 40C each committee of the Academic Senate, including Divisional committees, is responsible to the agency establishing it... The establishing agency retains the right to supercede, amend, or set aside the actions or recommendations of any of its committees.

Since the establishing agency for the committees in question is the Division itself, and since the will of the division is expressed in the Representative Assembly or a mail ballot, we conclude that the Representative Assembly has the power to overturn the judgement of any committee with respect to a student petition.  What is more, Davis Division Bylaw 160 (A) lists "student petitions" as the ninth item in the order of business for meetings of the Representative Assembly.

We conclude that the bylaws provide a mechanism for students to appeal adverse decisions of a divisional committee to the Representative Assembly.  They are silent on forms or procedures for such petitions.  We have not heard of any cases that would provide precedent.  [Superseded by Legislative Ruling 11.05]

[Advice to Vice Provost Barbara Horwitz 10/17/2001]

The Academic Senate has been entrusted by the Standing Orders of the Regents with authority over the curriculum and with determining the competence of instructors who deliver that curriculum.  They are also empowered to organize and govern themselves.  Academic Senate Bylaw 55 sets out the departmental voting rights of Senate members in personnel matters.  It is a Senate document; and, as such, it governs only the Senate.  With respect to instructional personnel, it governs the advice that the departments transmit to other Senate and non-Senate review bodies.  Most of the bylaw is devoted to Senate personnel.  ASB 55 (B) 8, however, states:

The tenured faculty members of a department shall establish the method by which personnel matters other than those listed in Paragraphs 1 to 6 of this Article B are determined. The method adopted must have the approval of the divisional Committee on Academic Personnel or its equivalent.

The CERJ believes that this paragraph governs the evaluation of the instructional component of the services of Academic Federation personnel.

Many Academic Federation titles are not involved in instruction or are involved in administration, research, or other duties, as well as instruction.  The Senate has no special role to play in evaluating non-Senate personnel on these dimensions.  According to Davis Division Bylaw 33 (C) the Chancellor may deputize Divisional committees for his own purposes.  (Their actions are, however, regarded as actions of the Division only if the Division chooses to acknowledge them as such.)  It is, therefore, permissible for the Administration to use Divisional committees (such as the Committee on Academic Personnel or College Personnel Committees) to assist it in evaluating non-Senate personnel on matters other than their competence as instructors.  That is a choice of the Administration:  it is neither required nor forbidden.  Nor is there any reason that the Senate should object to committees that mix Senate and non-Senate personnel, with voting procedures determined by the Administration, being used to evaluate Academic Federation personnel on matters other than instruction.

To summarize:  On matters related to the evaluation of the competence of instructors who are not members of the Senate, the Senate is uniquely empowered to give advice and is governed by its own procedures – especially ASB 55.  On all other matters related to non-Senate personnel, the Senate has no special role, but may be called on by the Administration to cooperate in the processes that the Administration finds appropriate.

CERJ was also asked to evaluate Section UCD-220A, Exhibit D of the UC Davis Academic Personnel Manual in light of our view of the scope and limits of ASB 55 (references to the UCD APM are to the version of 10/1/99 posted on the web).  Exhibit D sets out the procedures for consultation and voting on personnel actions within departments.  Item 4 on the list of actions that might come before departments refers to "new appointments and advancements in" seven non-Senate titles.  ASB 55 governs these titles only to the extent that they involve instruction.  On all other aspects of these titles, the Administration is free to develop whatever procedures, and to consult whomever, it sees fit.

The paragraph of Exhibit D that begins "Within the limits of Bylaw 55. . ." refers to voting procedures to be submitted "in writing, through their dean, to the Committee on Academic Personnel for approval."  It is, of course, normal and consistent with the relationship of the Senate to the Administration for departments to communicate about particular personnel cases with a dean and for the dean or other administrator to consult with CAP.  However, to require that the voting rules that departments adopt be transmitted to CAP through a dean violates the Standing Orders of the Regents.  It fails to respect the division of authority that they establish and the Senate's right to self-organization.  Such a process is acceptable only with respect to procedures for voting on the non-instructional aspects of non-Senate titles.

The next paragraph, which begins "In personnel actions the recorded vote should clearly separate the views . . ." violates ASB 55.  The privilege of voting on Senate members and on the instructional aspects of non-Senate members may be extended to Senate members not eligible to vote under the default provisions of ASB 55 according to procedures set out in the bylaw itself.  For example, the vote may be extended to tenured faculty who are below the rank of the faculty member being evaluated or it may be extended to non-tenured Senate faculty.  In such cases, there are no provisions for recording the votes of those entitled by default separately from those entitled by extension.  It would be invidious to record or report separate votes.  What is more, ASB 55 does not authorize the extension of voting of any kind whatsoever to non-Senate members.  Even if consulted, they have no right to vote.  To record any vote whatsoever of a non-Senate member in an instructional personnel matter directly violates ASB 55, whether or not the vote is reported separately.

The second paragraph of Exhibit D states that departments may permit non-Senate academic personnel to participate in the review of personnel actions "on an informal basis without extending voting rights."  Therefore, as long as no votes of non-Senate personnel are recorded or reported, ASB 55 does not prohibit such participation.  The CERJ wonders, however, whether such participation is consistent with general privacy rules governing confidential personnel records in the University as set out, for example, in APM 158-0 (a) and (b)?  We believe that it is important to ask this question, although we believe is beyond our formal competence to answer it.

[Advice to the Executive Council 2/27/2002]

The memorandum is reported in full.  Subsequently, the Executive Council appointed a committee to propose revisions to divisional personnel bylaws (DDB 44 and 45):

Date:  27 February 2002

To:  Executive Council
From:  Committee on Elections, Rules, and Jurisdiction
Subject:  Administration's Response to Personnel Reform

The Administration's Response to Divisional Proposals for Personnel Appeals:
An Analysis by the Committee on Elections, Rules, and Jurisdiction.

Introduction

Provost Hinshaw responded in a memorandum dated 14 January 2002 ("Recommendations of the Representative Assembly regarding the Academic Personnel Process") to the resolutions adopted by the Representative Assembly at its meeting of 24 May 2001 and forwarded to Chancellor Vanderhoef.  One part of that response involves the process of appeal of adverse judgments rendered by the Committee on Academic Personnel (CAP).  The Committee on Elections, Rules, and Jurisdiction (CERJ) believes that the Administration has overstepped its legitimate authority and challenges the rights of the Academic Senate.

Davis Division Bylaw (DD) 45.C.3 (adopted 24 May 2001) establishes a procedure for the appeal of adverse decisions by CAP to an Ad Hoc Committee consisting of one member nominated by CAP, one by the candidate, and a chair nominated by the Chair of the Committee on Privilege and Tenure.  The Administration objects to this appeals procedure on the basis of advice received from the University Counsel.  CERJ believes that this advice is utterly fallacious and, if the position of the Administration is permitted to stand without challenge, the rights of the Senate would be significantly diminished.  We first present our analysis of the basis for the Senate's right to formulate its personnel appeals procedures in the manner of DD 45, and then consider directly the arguments of the University Counsel.

The Senate's Rights Over the Personnel Process

In their Standing Orders (SORs), the Regents of the University of California have granted the Academic Senate certain rights and imposed upon it certain duties.  Among its rights is the right to organize itself.  According to SOR 105.1,

a. The Academic Senate shall determine its own membership [according to SOR 105.1.a], and shall organize, and choose its own officers and committees in such manner as it may determine.
b. The Academic Senate shall perform such duties as the Board may direct and shall exercise such powers as the Board may confer upon it. It may delegate to its divisions or committees, including the several faculties and councils, such authority as is appropriate to the performance of their respective functions.  [Emphasis added.]

The Regents give the final authority over personnel matters to the President of the UC system and to the Chancellors of the individual campuses, but they require consultation with the Academic Senate.  According to SOR 100.4.c:

The President of the University, in accordance with such regulations as the President may establish, is authorized to appoint, determine compensation, promote, demote, and dismiss University employees . . . When such action relates to a Professor, Associate Professor, or an equivalent position; Assistant Professor; a Professor in Residence, an Associate Professor in Residence, or an Assistant Professor in Residence; a Professor of Clinical (e.g., Medicine), an Associate Professor of Clinical (e.g., Medicine) or an Assistant Professor of clinical (e.g., Medicine); a Senior Lecturer with Security of Employment, or a Lecturer with Security of Employment, the Chancellor shall consult with a properly constituted advisory committee of the Academic Senate.  [Emphasis added.]

Taken together, these two standing orders require the Chancellor to consult on personnel matters with the Academic Senate and permit the Senate to determine what committee or committees shall speak with its voice.

The general authorities granted to the Academic Senate as a whole are conveyed to each Division by ASB 301.A.1:

Subject to such provisions as appear elsewhere in these Bylaws, each Division shall have authority to organize, to select its own officers and committees, and to adopt for the conduct of its business rules and regulations not inconsistent with the Bylaws and Regulations of the Academic Senate.

And the Divisions are specifically granted the right to establish committees to deal with academic personnel.  According to ASB 325:

Each Division may establish appropriate standing committees to deal with matters in the following general areas:  . . . Academic Personnel.

There is nothing in either the Standing Orders of the Regents or in Academic Senate, or Davis Division, Bylaws that inhibits the Division from adopting whatever consultative mechanism on personnel that it chooses.  There is nothing that says, for instance, that there must be a unified Committee on Academic Personnel rather than some complex of committees or, for that matter, that the committee charged with the general area of academic personnel could not have overlapping functions and also be responsible in other areas.  The Chancellor must consult with a "properly constituted advisory committee of Academic Senate" on personnel issues.  The Senate's right to organize itself permits it and – by the extension authorized in its bylaws –the Davis Division to determine what committee is properly constituted for purposes of consultation.  In adopting DD 45, the Division exercised its right to specify what are the properly constituted committees for consultation on personnel appeals.

The University Counsel's Adverse Opinion

In his letter of 19 December 2001 to Steven Drown, Chief Campus Counsel for UC Davis, Gary Morrison, Deputy General Counsel at the Office of the President, pronounces the procedures governing the appeal of an adverse ruling from CAP to an Ad Hoc Appeals Committee to be "an unauthorized revision of the personnel processes established on a Systemwide level, and …, therefore, void and of no force and effect."  He supports this conclusion with the observation that the judgment of the Ad Hoc Appeals Committee would substitute for that of CAP and that the Academic Personnel Manual (APM) 220(f) specifies that the departmental recommendations shall be referred to "the appropriate Academic Senate Committee [Committee on Academic Personnel or equivalent]" (emphasis added) and that APM 220(k) permits the abbreviation of the personnel process in some cases, but not its e