Ruling

In accord with the Standing Orders of the Regents (105.1) and Davis Division Bylaw 43, as well as general considerations regarding the separation of authority that are part of the notion of shared governance that lies behind the independence of the Senate, nominations of Senate members to Faculty Personnel Committees (FPCs) must originate in the executive committees of one or more Faculties. As an ex officio member of the Executive Committee, the Dean may express views about potential nominees and vote on their nomination, where agency bylaws allow. These deliberations are a matter of record, as are other deliberations of the Committee. The Dean may not, however, exercise any special right of vetting, vetoing, or pre-approving nominees. The slate of nominees must be transmitted directly from the Executive Committee (normally through its Chair or Secretary) to the Divisional Committee on Academic Personnel (CAP). It must not be transmitted through the Dean's Office or under the authority or signature of the Dean or other administrative officer.

The Committee on Academic Personnel is entitled to seek relevant information about nominees before confirming their appointments. That may include consultation with the Dean, and may include confidential information that generally could not be shared with other Senate committees. Nevertheless, CAP must respect the rights and privileges of Senate members and may not cede to a dean or other administrator CAP's authority to confirm or disconfirm a nominee. CAP would violate fundamental fairness and due process if it failed to confirm a nominee on the assertion of some barrier to service expressed by the Dean on the basis of confidential information that he/she would not share with the Committee. Put simply: deans may not blackball nominees.

Standing Order of the Regents 100.4.c requires the Chief Campus Officer to consult with the Senate on the personnel cases of Senate members. The Senate, however, determines which of its bodies speaks on its behalf. Likewise, the Chief Campus Officer may delegate his/her authority to lower administrators. Davis Division Bylaw 42 and 43 define the authority that CAP and the FPCs have to speak for the Senate. For those personnel actions delegated to the decanal level, the FPCs are advisory to the Dean, in the sense that they transmit their reports to the Dean and may receive requests for specific action and information from the Dean. Their status as advisors to any level of the Administration does not give the Administration any authority over the organization and operation of the Senate committees. [Issued June 4, 2002; published in the Call for the November 1, 2005 meeting of the Representative Assembly.]

Background

On 12 February 2002, Professor Quirino Paris (Department of Agricultural and Resource Economics) requested a legislative ruling concerning the scope of permissible involvement of a dean in the appointment of college personnel committees under DDB 43 (following the current language of the bylaws hereinafter referred to as Faculty Personnel Committees (FPCs)). Professor Paris was concerned, in particular, that the Dean of the College of Agriculture and Environmental Sciences (CAES) nominated and vetoed the nomination of candidates for the CAES Personnel Committee.

The precise facts of the case are hard to determine. In a letter dated 4 March 2002 to the Committee on Elections, Rules, and Jurisdiction (CERJ), Thomas Famula (Chair of the CAES Faculty) states that the Executive Committee of his college in fact nominates individuals to its FPC independently of the Dean and transmits those nominations directly to the Committee on Academic Personnel (CAP) which makes the appointments. However, Professor Paris has supplied the committee with the list of the Standing Committees of CAES, which contains the following line: "College Personnel Committee (Recommended by Dean/Appointed by CAP)." Since the relevant personnel bylaws were amended only effective 1 September 2001, this may be a mistaken carryover from the template of an older document. Linda Bisson (Chair of CAP), speaking more generally in a memorandum to CERJ writes: "The nominees are generally transmitted to CAP by letter from the Executive Committee with Dean's signature indicated, from the Dean on behalf of the Executive Committee or jointly signed by the Dean and the Chair of the Executive Committee."

It is clear that there is some confusion about the actual situation in CAES and about how the appointment process for FPCs should operate. This is, perhaps, not surprising given the equivocal status of the old college personnel committees in past years and the fact that new, clearer bylaws governing them have gone into effect only this academic year. Professor Paris's request provides us with an opportunity to clarify some matters surrounding them.

Professor Paris requests a ruling addressed to the following issues:

"1. The choice of recommended faculty members should be made by the Executive Committee independently of the Dean.

"2. The list of recommended faculty members for service on CPCs should be transmitted to CAP by the Executive Committee of the given Faculty, and not from the Dean.

"3. The CPC are advisory to the Chief Campus Officer and not to the Dean of the Faculty from which the CPC emanates.

"4. The Dean is forbidden to place a veto on any faculty member selected by the Executive Committee. A Dean is forbidden to rule any faculty member as unsuitable to serve on a committee of the Academic Senate.

"5. Your Ruling ought to receive the widest circulation among units of the Academic Senate and the Administration."

Rationale

Considerable confusion surrounds the constitution and authority of various personnel committees. It may be useful to clarify this in a general way at the outset. The Standing Orders of the Regents (SOR 105.1) contemplate a Senate with an authority independent of the Administration. The composition, structure, and rules of operation governing all Senate committees is strictly in the control of the Senate and governed by its bylaws. CAP and the FPCs are Senate committees. As such they are not in any way controlled or organized by the Administration and they are not governed by the Academic Personnel Manual (APM), the Policies and Procedures Manual, or other administrative documents. Confusion may arise because these committees do advise the Administration on the progress of Senate members according to criteria that are definitively recorded in the APM. There is an important distinction between the substance of their deliberations, which does involve reference to and respect for the APM, and their organization and operation, which is entirely independent of it. Clearly, shared governance involves close cooperation between the Administration and the Senate; but no Senate committee is entitled to cede authority over its organization or operations to the Administration.

Another source of confusion arises in the case of ad hoc personnel committees. Professor Bisson analogizes between them and the FPCs in her memorandum. Ad hoc committees are not Senate committees. Although they are staffed by Senate members and though CAP or other Senate committees may be consulted in their formation, they are appointed by the Administration and are responsible to it. They are governed by the APM in a way that Senate committees are not.

We turn now to the specific case at hand. Faculty Personnel Committees are governed by DDB 43. The bylaw is clear that CAP determines the structure of the FPC in consultation with the college executive committee, and that the executive committee nominates the members, subject to confirmation by CAP. The independence of the Senate from the Administration is reinforced in Senate bylaws. For example, ASB 50.C forbids deans from serving as chairs of faculties. Senate bylaws nevertheless contemplate a close working relationship with the Administration. Senate bylaws require that deans serve as ex officio members of their faculty's executive committee. The FPCs are committees of the Senate, and not of the Administration. Consequently, the dean's role must be consistent with his or her Senate functions – namely, the dean is a member of the committee and nothing more. It is, therefore, inappropriate for the dean to act as nominator, except to the degree that other members of the committee are involved in nomination. And it is inappropriate for the dean to vet, veto, or transmit – as if by decanal authority – the nominations of the executive committee to CAP.

Professors Famula and Bisson raise some related issues that need to be addressed. First, both are concerned that confidential information to which the dean, but not the executive committee, may be privy could be relevant to the appointment of a member of the Faculty to the FPC. There are circumstances under which information that could not be shared with an executive committee might be relevant to an appointment. The dean, as a member of the executive committee may express an opinion about the suitability of any nominee. But the dean may not be asked to vet or pre-approve a slate of nominees as a separate hurdle, nor may the dean exercise a veto over a nomination or appointment. CAP is entitled to see some confidential information that generally cannot be shared with other faculty committees, and it may request information about candidates from the dean as part of its confirmation process. However, to blackball a nominee on the basis of confidential information that cannot be shared with any faculty committee, including CAP, would represent a fundamental violation of due process and could raise issues of faculty privilege.

An example of relevant information that a dean might provide confidentially to CAP would be the fact that a nominee had failed to make normal progress through the merit review process. A nominee with his or her own problems with the personnel process is probably not well suited to judge the progress of others. An example of illegitimate information would be the observation that a nominee had previously taken a high-profile stand against an administration policy. An even more egregious example (if violations of faculty rights admit of finer degrees) would be an intervention from an administrator stating that the he or she has information that, if it could be disclosed, would clearly rule a nominee out from service in a case in which the information was not (or could not be) in fact disclosed. It is a special duty of CAP to protect the Senate from such illegitimate influences on the part of the administration. It has a special responsibility to ensure on behalf of the Senate that decisions of who is to serve on an FPC be based on legitimate and relevant information and not on expressions of distaste on the part of dean or other administrator unbacked by evidence related to the duties of member of a Senate committee.

A Senate process cannot be established without due respect for fundamental fairness and due process. In her memorandum, Professor Bisson writes of the practice of deans indicating to CAP that a particular candidate has a conflict of interest without supplying the details because of confidentiality requirements: "I suppose this could be abused by the Dean, but I have no reason to suspect that it has been." Unfortunately, such a sub rosa procedure necessarily gives no basis for knowing whether there is a genuine reason or illegitimate agenda. It is fundamentally unfair.

Professor Famula points out that the Division of Biological Sciences (DBS) does not have an executive committee. Its personnel committee is nominated by its dean and appointed by CAP. CERJ believes that this procedure is inconsistent with Senate bylaws. First, (DBS) is not a college and does not have a corresponding Faculty. Second, every Senate member in DBS has one or more college affiliations. Senate committees cannot be nominated by a dean. And, according to DDB 43, faculty personnel committees must be designed by CAP in conjunction with local executive committees. Although CERJ believes that the best solution would be for the Administration to remedy this awkward situation by creating a bona fide college, in the meantime, there must be a solution consistent with Senate bylaws. We see no objection to CAP working with the Executive Committees of the Faculty of Letters and Science and the Faculty of CAES, from whom the DBS faculty are drawn, to establish a DBS personnel committee consistent with Senate bylaws. Nominations would have to originate in the executive committees and confirmation would have to come from CAP. Other than those requirements, there is considerable flexibility in how an FPC is organized.