The Division's rights to formulate personnel appeals procedures

[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.


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 expansion (except for cases of the traditional ad hoc committee that stands between the department and CAP review).

The General Counsel's opinion is fundamentally flawed.

First, it conflates the structure of the Administration's personnel process, which is governed by the Administration's procedures in the APM, with the organization of the Senate.  The Administration clearly controls its own procedures and can structure them how it likes, as long as it conforms to the Standing Orders of the Regents and respects the rights and responsibilities of the Senate, also governed by those Standing Orders.  The Chancellor is required to consult with the appropriate Senate committee.  The Senate -- not the Administration -- has the right to decide what committee is appropriate.  DD 45 specifies what committee is appropriate to a particular form of consultation.  The right of the Senate to organize itself, clearly gives the Division the right to make that specification.

There is nothing in the Regent's Standing Orders or Senate bylaws that compels the Senate to render its advice through a single committee called "the Committee on Academic Personnel."  Indeed, precedent is against that presumption.  The composition and organization of the CAP has always been acknowledged to be a divisional matter.  The CAPs on the different campuses differ in structure and procedures.  (UC Berkeley's committee is called "Budget and Interdepartmental Relations")  The bylaws governing the Davis Division's CAP have been amended to alter its membership from time to time.  CAP could have a complex structure.  Ad Hoc Appeals Committees could have been created as elements of a Committee on Academic Personnel with a somewhat more complex internal structure.

In whatever way a Division chooses to organize itself, as long as there is a clearly defined body or bodies that can render advice to the Chancellor with the voice of the Senate, the Administration's personnel processes are unaltered.  The Administration must ask for, and the Senate must render, its opinion.  Nothing in DD 45 changes that process.  It merely changes -- in a particular set of circumstances -- how the Senate itself decides what constitutes its opinion.

Second, in pronouncing the appeals process of DD 45 void and of no force, the General Counsel asserts the superiority of the Academic Personnel Manual and systemwide policies generally over the fundamental constitution of the Academic Senate.  The reference to "unauthorized revision" suggests that the General Counsel sees the committee structure of the Senate and the Division as resting on the authority of the President and the Chancellor.  But this contradicts the Standing Orders of the Regents that grant to the Senate rights and duties independent of those granted to the Administration.  In particular, it is an interference in the right of the Senate to organize itself.  The Chancellor has a duty to consult "a properly constituted advisory committee of the Academic Senate."  It is a usurpation of the Senate's right to self-organization if the APM or other administrative documents or rules can determine exactly how divisional committees shall be organized.  To acquiesce in this usurpation -- that is to grant a superior status to the APM, the Policy and Procedure's Manual and other bodies of rules originating with the Administration above the Code of the Academic Senate -- would constitute a revolution in the relationship of the Administration to the Senate:  it would be the end of shared governance as it has been understood heretofore.  The Senate would then become a subordinate body acting for the convenience of and under the instruction of the President and the Chancellors.  That is clearly not what the Standing Orders of the Regents contemplate.

Third, although the General Counsel interprets the APM as if it were a superior document to the Code of the Academic Senate rather than as a document, at best, governing the independent functions of the Administration, the APM itself acknowledges that Academic Senate Bylaws govern some parts of the personnel process.  ASB 55, which governs departmental voting rights, is held (for example, in APM 025-2, UCD APM 220A.VII.B, UCD APM 220A.VII.B-Exhibit A, and UCD APM 500) to define those rights for the personnel process.  In other words, far from dictating the shape of Senate consultation on personnel matters, in some cases the APM clearly defers to Senate authority.

The Administration's position with respect to the appeals procedure demonstrates the other side of the confusion of Administration and Senate authority exhibited in their objections to the at-or-above rule for Ad Hoc Personnel Committees (analyzed in a separate memorandum).  In each case, they fail to recognize and respect the line between Administration and Senate authority.  With respect to the at-or-above rule they assert the necessity of deferring to the will of the Senate on a matter on which no such deference is called for.  Whereas with respect to DD 45, they seek to impose the Administration's will on the structure of the Senate -- a matter that the Regents have left strictly within the authority of the Senate.  The Administration may not like the committee structure that the Senate has adopted -- indeed, it may not be the best or, even, a good structure -- but the right of the Senate to choose its own structure is beyond all doubt.

For these reasons, the CERJ is persuaded, contrary to the opinion of the General Counsel, that not only is DD 45 is permissible; but, that in seeking to interfere with the operation of DD 45, the Administration attacks the basis of shared governance and asserts a novel authority over Senate organization that violates the independent status of the Academic Senate under the Standing Orders of the Regents.  This usurpation of authority would set a dangerous precedent and must be vigorously resisted.

Committee on Elections, Rules, and Jurisdiction:

William G. Davis
Kevin D. Hoover, Chair
Bruce E. Larock