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Assurance that preliminary steps are carried out.Recommendations for JRB Procedures
Faculty Senate Governance Committee
February 25, 2003At the request of the chair of the Judicial Review Board (JRB), the Faculty Senate set up a task force to review the policies and procedures for the JRB and report to the Faculty Senate Governance Committee. Roland Person (JRB Chair) and James Duggan represented the JRB on the task force while, Randy Hughes and Manohar Kulkarni represented the Governance Committee of the Faculty Senate.
The task force reaffirmed the importance of the JRB, both for those faculty who are represented by the Faculty Association and those who are not. The JRB members on the task force (Roland Person and James Duggan) identified several issues concerning JRB procedures and solicited responses from JRB members. The task force then discussed these issues and Randy Hughes prepared a set of recommendations.
The Governance Committee then discussed these recommendations and accepted them except for one. The Governance Committee decided to ask for additional explanation for the JRB position on the issue of the eligibility of chairs and directors to serve on JRB panels. The response from Roland Person, Chair of the JRB is included below.
The following recommendations were approved by the Governance Committee after these deliberations. References are to the Grievance Procedure for Faculty in the Employees Handbook. Text to be added is underscored and text to be deleted is struck out.
Eligibility to serve on panels.
A change in language is proposed to effect two clarifications of eligibility to serve on JRB panels. One is to exclude certain administrators. In its discussions, the Governance Committee considered whether or not chairs and directors should be excluded. All agreed to the exclusion of deans, but the issue was sent back to the JRB for additional explanation of their proposal to exclude chairs as well as deans. In his response, Roland Person writes, “It seems to us that consistency would mean that if chairs (and clearly by implication directors) cannot be elected to the JRB, then they should not be appointed either.” (See the complete text of the email below.) The proposed change below copies the eligibility requirement for members of the JRB and would exclude chairs and directors.
The other change is to deal with the apparent conflict of interest if a panel member is a party to a current grievance or legal action against the university. While such potential panel members might be excluded through a challenge for cause, it would be cleaner to make such exclusions from the start. The proposed wording:
VIII. D. 1. Upon receipt of a request which necessitates review by a JRB panel, a JRB panel shall be formed. A JRB panel shall consist of three members.The JRB shall name one member of the JRB to the panel who shall not represent a university unit associated with either party of the grievance, and who shall serve as a chair of the panel. Such chair shall instruct the panel in the procedures of JRB hearings and in the history of the particular grievance to that point. Each principal shall be entitled to one peremptory challenge in addition to challenges for cause. The validity of the challenge shall be determined by the JRB. Challenges for cause shall be strictly construed against the challenger and shall only be granted in cases of evidence of actual bias against the challenger or evidence of actual pre disposition regarding the particular grievance. In the event of a second challenge for cause from the same party, the JRB shall meet with the parties to the grievance and identify a panel. In this case, the JRB can form the panel without agreement.Each party to the grievance shall name a member of the panel who shall be a tenured full professor of a university department (or equivalent, such as school or division) not associated with either party to the grievance and not a member of the JRB (if a party to the grievance is in an administrative post, this exclusion shall apply to the unit or equivalent in which he/she holds tenure), except that when a party to the grievance is a member of the administrative/professional staff, a civil service employee, or a student, that party shall have the right to name a panel member of like affiliation, but not from the same unit.Each party to the grievance shall name a member of the panel who shall be a tenured full professor (except that when a party to the grievance is a member of the administrative/professional staff, a civil service employee, or a student, that party shall have the right to name a panel member of like affiliation) whoa. is not currently serving in an administrative position with supervisory responsibility over faculty performance, such as dean or department chair, and
b. is not of a university unit (department or equivalent, such as school or division) associated with either party to the grievance (if a party to the grievance is in an administrative post, this exclusion shall apply to the unit or equivalent in which he/she holds tenure), and
c. is not a member of the JRB, and
d. is not a party to an unresolved grievance or unresolved legal action against the university.
The additional language was proposed by the JRB. The members of the task force discussed whether going back to informal procedures (for example, sending the dispute to the ombudsman) might affect the time clock for the grievance. Roland Person expressed his belief that the chair of the JRB had the ability to work out agreements among the parties to allow the waiver of some time limits if necessary to carry out informal settlement attempts. Proposed changes:
IV. B. Upon receipt of an appeal, the JRB chair shall assure that steps in IIA and B have been followed such that the respondent is fully aware of the grievance and that there is a written record of the results of all attempts at resolution. In addition, the chair should encourage the grievant to consult with the Faculty/Staff Ombudsman if this has not already happened. The JRB, pursuant to VIII.D.3., shall form a panel within 10 working days of receipt of an appeal. The panel shall operate under the provisions of Section VIII of this document. The decision of the panel shall be in the form of a written recommendation to the chancellor. A copy of this recommendation shall be provided to the principal parties on the same day. In the absence of compelling circumstances, the chancellor shall give a written decision as promptly as possible, but within 15 working days. The chancellor shall notify the JRB and the principal parties of the decision. In the event that the chancellor overturns the recommendations of the JRB Panel, he/she shall submit a complete report to the JRB and the principal parties to the grievance citing evidence and/or procedural grounds upon which the decision was based.
Use of delivery receipts
Roland Person reports that the JRB has not been following the provisions of VIII.D.2. that require the use of certified mail, return receipt requested, for notifying the parties to a grievance of the appointment dates and names of panel members. The majority of the JRB believes that these measures are not necessary.
However, there are instances where one party or the other has not delivered proper notice to the other parties, yet wanted to hold the others to deadlines. While it might be presumed that the JRB chair can be trusted to make a good faith effort to notify all parties, the same presumption should not be made for other parties involved. In any case, without evidence of the date of delivery it would be unfair to hold the parties to subsequent deadlines. Even if the certified mail requirement is removed only from the first paragraph of Section VIII.D.2. it opens up the possibility of a party challenging a panel member at any point up to the commencement of the hearings on the grievance.
The JRB would like to use email (with a paper copy sent the same date) for this particular notification. Rather than change the existing language, it is suggested that the JRB chair send email and paper copy including a request for an immediate reply acknowledging receipt and waiving the requirement for using certified mail.
Inclusion of summer in the definition of working days
The JRB discussed how the clock could be allowed to run during the summer. The majority proposal was to delete part of II.D. as follows:
II. D. For the purposes of this grievance procedure, the term “working day” shall be defined as a day during which classes are heldTheir intention was to only include class days during the Summer term and not days during an intersession even though classes may be held then.during the fall and spring semesters of the school year.
There is however a concern that in many cases parties to the grievance or witnesses that might be called during hearings will not be on appointment during the summer. Apparently, the exclusion of summer in the definition of “working days” has not been used to unnecessarily drag out proceedings. Rather, there was simply a desire on the part of the JRB to endorse the use of days in the summer to process grievances. Therefore, the following addition is recommended:
II. D. For the purposes of this grievance procedure, the term “working day” shall be defined as a day during which classes are held during the fall and spring semesters of the school year. Days during which classes are held during the summer term may also be considered “working days” by mutual agreement of all parties to a grievance, as certified by the JRB.Recognition of the importance and jurisdiction of the JRB.
The JRB agreed to ask the Senate to “affirm and seek written agreement from the Administration that the JRB role is important.” The JRB further asked to add language to the Handbook: “if the respondent refuses to participate in the JRB process, then the grievance is assumed proven and the panel will send such a report to the chancellor.”
The first request could be accomplished with a Senate Resolution addressed to the Administration. To meet the request for new language in the Handbook, it is suggested that the following section be inserted in the Procedures for JRB Panels, VIII.D., and subsequent sections be renumbered as necessary:
14. If either party to a grievance declines or otherwise fails to appear at the hearings held by the JRB panel, the panel shall nevertheless issue a report of its findings containing a specific recommendation of relief or no relief.
Email (December 12, 2002) from Roland Person:
Dear Randy,
I have conferred with most of the Judicial Review Board members over the issue of chairs and directors as possible JRB panel members, as you requested in your December 3 memo to me that I copied to them. A considerable majority of the JRB continues to support excluding chairs and directors from JRB panels.
One reason for this position, which you don't mention as having been considered by the Governance Committee, is the Senate's own rule (see Employee Handbook, p. 174, #3) on "Procedure for Selection of the JRB" wherein "department chairs" are specifically cited as an example of administrators who may not be elected to the JRB. It seems to us that consistency would mean that if chairs (and clearly by implication directors) cannot be elected to the JRB, then they should not be appointed either.
We mean no implication that chairs or directors or any specific person could not be impartial and serve well in a given situation. There is, however, a concern for perception and, because chairs and directors are viewed by many as part of the administrative process or hierarchy, there is a perception that they might be unduly influenced by deans or other higher administrators. Additionally, chairs often have had some role in decisions that may be grieved and this could lead to the perception that judges may also be part of the jury. The JRB panels clearly should represent the peers of the faculty member who is grieving.
One point that we may not have emphasized in our Task Force meeting, but that does concern the JRB, is that parenthetical phrase about A/P being able to name a panel member of like affiliation. A few years ago, we had an acting provost argue that because administrators were A/P, they should be able to nominate other A/P members as panelists, in this case meaning deans or above. The JRB at the time rejected this argument, but would prefer that the Handbook language not allow or encourage that administrator's interpretation.
I believe James Duggan, as a member both of the Committee and of the JRB, can provide a good summary of the JRB's thinking on these proposals, but if you or the Committee has further questions, please let me know.
Sincerely,
Roland Person, chair
Judicial Review Board