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FACULTY SENATE
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MINUTES
SPECIAL MEETING
FACULTY SENATE
THE UNIVERSITY OF ARIZONA®
March 22, 1999 These minutes may be accessed electronically at:
http://fp.arizona.edu/senate/minutes.htm
Visit the faculty governance webpage at:
http://fp.arizona.edu/senate/
1. CALL TO ORDER
A quorum being present, the special meeting of the Faculty Senate was called to order by Presiding Officer Jeffrey L. Warburton on March 22, 1999, at 3:10 PM in Room 146 of the College of Law.
Present: Senators Aleamoni, Atwater, Caldwell, Coker, Dahlgran, T. Davis, G. Dryden, Erlings, Ervin, Gerken, Gottfredson, Gruener, Heckler, Heinrich, Hogle, Howell, Hurt, Laetsch, Larson, Levin, Levy, Marchalonis, Medine, Merkle, Miller, Mishra, Mitchell, Nolan, O’Brien, Parsons, Pitt, Schooley, Silverman, Spece, Taylor, Troy, Warburton, Weinand, Wilson-Sanders, and Zwolinski. Robert Sankey served as Parliamentarian.
Absent: Senators Armstrong, Christiano, Cohen, D. Davis, Dvorak, Dyl, Garcia, Impey, Jenkins, Joens, Johnson, Likins, Love, Maré, Meaker, Pepper, Pope, Swindle, Szilagyi, Voyatzis, and Witte.
2. CONTINUED DISCUSSION AND ACTION ON REVISED WHISTLE-BLOWER POLICY (Attachments)
Presiding Officer Warburton reminded Senators that this special meeting had been called to continue discussion of the proposed whistle-blower policy, the approval of which the Academic Personnel Policy Committee (APPC) brought forward as a seconded motion [Motion 1998/99-34] at the Faculty Senate meeting on March 1, 1999. Referring to items placed on Senators’ desks, Senator Warburton discussed the format of today’s meeting and noted the following: (1) Results of the General Faculty elections are listed on an informational sheet; no second election is necessary this year. (2) The draft whistle-blower policy will be reviewed and discussed section by section, and proposed amendments will be dealt with in the relevant sections. (3) After the policy sections and amendments are discussed, the entire document will be open for discussion. The target time for a vote on the document as a whole is 4:45 PM.
Using overhead transparencies, Senators Atwater and Troy, APPC Co-Chairs, explained that 20 proposed amendments to the whistle-blower policy had been submitted in writing. The first, submitted by Dr. Terence Burke, Associate to the President, suggests replacing the "Applicability" section on p. 1 with new text, in order to simplify the language and improve the grammatical construction. Noting that the APPC Co-Chairs agree with this amendment, Senator Atwater moved [Motion 1998/99-34a] that the entire "Applicability" section (p. 1 of the policy) be replaced with: "This policy applies to anyone employed by the University, however categorized, who alleges wrongful conduct, as defined in this policy, and is then subjected to an adverse personnel action as a result of their disclosure. It also applies to the supervisors of such employees." The motion was seconded and passed unanimously.
Senator Spece moved [Motion 1998/99-34b] that "reasonably" be replaced with "in good faith" (p. 1, "Policy" section, paragraph 1, line 3). The motion was seconded. In response to a question, it was noted that "in good faith" is definable legally. The motion was passed unanimously.
Senator Spece moved [Motion 1998/99-34c] that "supervisory" be deleted in the term "supervisory employee" (p. 1, "Policy" section, paragraph 3, line 1); the motion was seconded. A summary of comments/questions: (1) Since only a supervisory employee can impose an adverse personnel action, this amendment is unnecessary. (2) A member of a peer review committee can have an adverse effect on someone’s employment, despite the fact that he/she is an equal and not a supervisory employee. (3) Would the effect that a peer review committee member has be direct or indirect? (4) Since the dean or department head makes the ultimate decision in the promotion and tenure process, do we want to hold peer review committee members liable for alleged retaliation? (5) The whistle-blower policy needs to be as broad as possible; this amendment should be approved. (6) There is precedent for search committee members to be sued regarding adverse hiring decisions; analogously, we could expect that peer review committee members can be held liable for adverse promotion and tenure decisions. (7) The term "supervisory employee" appears several times in the policy, but it would not have to be changed in all instances. The motion was passed, with 3 votes opposed and no abstentions.
Senators Atwater and Troy moved [Motion 1998/99-34d] that the following paragraph be added at the bottom of page 1 (at the end of the "Policy" section): "At any stage in the process, conciliation may be chosen as a means to allow both parties to arrive at a mutual resolution of the matter." The motion was seconded. Senator Laetsch proposed a friendly amendment to add clarity by avoiding the passive voice: "At any stage in the process, the parties may choose conciliation as a means..." Senator Levy suggested an additional friendly amendment—to substitute "attempt" for "arrive at." Senators Atwater and Troy accepted both friendly amendments. The motion passed unanimously as amended: "At any stage in the process, the parties may choose conciliation as a means to attempt a mutual resolution of the matter."
With regard to the definition of "adverse personnel action"
(p.2), Senator Spece suggested two options for amendments: (1) Replace the entire current
definition (including examples) with "Any action negatively affecting one’s
employment;" or (2) leave in the examples, but change several of them as indicated by
italics and/or strikeouts—(b) demotion with or without salary reduction, (c)
imposition of suspension with or without pay, (d) issuance of written or oral
reprimand, (h) unsatisfactory overall performance rating in any single
item of performance, and (j) elimination of the employee’s position absent
unless reasonably required by a reduction in force, reorganization, or insufficient
funding, monies or workload."
Senator Spece moved [Motion 1998/99-34e] that the entire definition of "adverse personnel action" (p. 2) be replaced with "Any action negatively affecting one’s employment." The motion was seconded. A summary of comments/questions: (1) This amendment provides a broad, succinct definition that covers all permutations. It promotes freedom of speech. (2) This definition is more subjective; we need the details provided by the examples. (3) Who will judge "negatively?" (4) The affected individual needs to judge the negative impact. (5) This amendment would broaden the definition too much. (6) The broad nature of the proposed amendment is good, but we need the guidelines of the examples provided in the second option. A friendly amendment was suggested: To change the wording to, "Any action negatively affecting one’s employment such as, but not limited to," followed by the examples provided in the draft policy. Senator Spece voiced no objection to this friendly amendment. The motion was passed as amended by the friendly amendment, with 4 votes opposed and no abstentions.
The Senate then considered Senator Spece’s second option [Motion 1998/99-34f], to revise the wording of five of the examples, as detailed above. The motion was seconded. A summary of comments/questions: (1) With regard to example d (issuance of written or oral reprimand)—Taken to the extreme, no one could criticize anyone... Lawyers like litigiousness, but many faculty do not... Supervisors are very likely to put all reprimands in writing, for the record. (2) Regarding example h (unsatisfactory performance rating in any single item of performance)—This would insulate people from ever receiving any unsatisfactory rating... This would apply only if it is in retaliation for whistle-blowing. (4) Regarding example j (elimination of the employee’s position unless reasonably required by a reduction in force, reorganization, or insufficient funding, monies or workload)—Is this language consistent with that of the University Handbook for Appointed Personnel (UHAP)? In individual votes, all suggested revisions in the wording of examples b, c, d, h, and j, as detailed above, were approved. Senator Atwater moved [Motion 1998/99-34g] that example k be revised to read, "other significant permanent change in duties, responsibilities, resources, grade level, or salary." This motion was not seconded.
Senator Spece moved [Motion 1998/99-34h] that the entire definition of "alleged wrongful conduct" (p. 2) be deleted and replaced with: "It is a prohibited personnel action for an employee who has authority to take, direct others to take, recommend, approve, or improperly influence personnel actions to take reprisal against an employee for disclosure of information of a matter of public concern by the employee to a public body which the employee in good faith believes evidences: 1. A violation of any law, Board of Regents’ Policy or UHAP manual provision, 2. Mismanagement involving gross waste of monies, or 3. Abuse of authority." The motion was seconded. A summary of comments: (1) The introductory information in this amendment is unnecessary and redundant, since it is stated elsewhere. (2) The amendment as written mixes up two concepts. It was suggested that this amendment be changed by deleting the introductory paragraph and leaving only the three numbered items, changing them to lettered items for consistency with the rest of the document. Senator Spece did not voice an objection to this change. A concern was expressed that the staff manual is not mentioned in this definition. To address that concern, Senator T. Davis proposed another friendly amendment to this motion: to add "or other written policies of the University" at the end of the first item. Senator Spece did not object to this change. The motion was passed as amended, so that the definition of "alleged wrongful conduct" is "a: A violation of any law, Board of Regents’ Policy, UHAP manual provision, or other written policies of the University; b. Mismanagement involving gross waste of monies; or c. Abuse of authority."
Senator Spece moved [Motion 1998/99-34i] that "written" be deleted in the first line of the definition of "disclosure" (p. 3), so that the definition would read: "Disclosure means a report by an employee to a public body, including a University officer, of alleged wrongful conduct, as defined above." The motion was seconded. A summary of comments: (1) This is a double-edged sword; there is the possibility of misinterpretation with an oral report. (2) An oral report places the hearer of the report in an untenable position, because he/she cannot act. After further discussion, Senator Spece suggested changing his amendment to allow disclosure by either a written or oral report, with an additional qualifying sentence added at the end. The motion was passed as amended, with 10 votes opposed and 1 abstention. Thus, the definition of "disclosure" now reads: "Disclosure means a written or oral report by an employee to a public body, including a University officer, of alleged wrongful conduct, as defined above. If the report is oral and the person to whom the disclosure is made requests a written, signed affirmation, there must be such a written, signed affirmation to create a disclosure."
Senator Spece moved [Motion 1998/99-34j] that "was motivated, in whole or in part, by" be changed to "acted, in whole or in part, because of" in the definition of "knowing retaliation" (p. 3). The motion was seconded and carried unanimously. Thus, the definition of "knowing retaliation" now reads: "Knowing retaliation means that, in taking adverse personnel action, the supervisory employee acted, in whole or in part, because of his or her knowledge or belief that the employee made a good faith disclosure of alleged wrongful conduct to a public body or to a designated University officer."
Senator Spece moved [Motion 1998/99-34k] that deans be added to the definition of "public body" (p. 3). The motion was seconded and carried unanimously. Thus, the definition of "public body" now reads: "Members of the Arizona Legislature, a member of the Arizona Board of Regents, or offices of the Arizona Attorney General, the Governor of Arizona, a federal, state, or local law enforcement agency, or the University president, provost, vice-provost, a vice-president, or a dean."
Senator Spece moved [Motion 1998/99-34l] that the definition of "supervisory employee" (p. 3) be deleted from the document. The motion was seconded. A summary of comments: (1) This definition is necessary, because the term is used in several places in the document. (2) This term does not need a formal definition, because it is commonly understood. The motion was passed, with 5 votes opposed and no abstentions.
Senator Spece moved [Motion 1998/99-34m] that deans be added to the definition of "University officer" (p. 4). The motion was seconded and carried. Thus, the definition of "University Officer" now reads: University of Arizona president, provost, vice-provost, a vice-president, or a dean."
Senator Spece moved [Motion 1998/99-34n] to delete the following sentence from the "Making a Disclosure" section (p. 5): "Disclosures made to a public body other than to a designated University officer must be copied to a University officer to assure compliance with this policy." The motion was seconded. A summary of comments: (1) The removal of this requirement raises the issue of taking these matters outside of the University and involving people who do not understand the academic environment. (2) Retaining this requirement imposes a gross restriction on free speech. The motion was carried, with no votes opposed and 3 abstentions.
Senator Spece proposed two changes in the third and final sentence of the "Legitimate Employment Action" section (p. 5). He moved [Motion 1998/99-34o] that "knowing" be deleted in the term "knowing retaliation" (line 5 of the section). The motion was seconded and defeated, with 7 votes in favor and the rest opposed. He moved [Motion 1998/99-34p] that "wholly be added before "irrespective" (line 7 of the section). This motion was not seconded. Thus, the "Legitimate Employment Action" section remains the same as it appears in the draft dated 3/10/99.
It was noted that an amendment to change "evoked" to "invoked" in the "Whistle-Blower Hearing" section (p. 6, line 3 of the section) is no longer necessary, since this was a typographical error that has already been corrected.
Senator Spece moved [Motion 1998/99-34q] that a sentence be added at the end of the "Whistle-Blower Hearing" section: "If additional adverse action comes after a whistle-blower complaint, the employee can pursue other internal and external remedies." The motion was seconded and carried unanimously.
Senator Silverman moved [Motion 1998/99-34r] that the first sentence of the "Whistle-Blower Hearing Procedures" section (p. 6), which contains a reference to the University’s current contract with the American Arbitration Association, be deleted and replaced with: "The University President or his or her designee shall select, upon the recommendation of a committee consisting of the chairs (or their designees) of the Faculty, Staff Advisory Council and Appointed Personnel Organization Council, a qualified external service provide to provide qualified external hearing officers and a hearing process for a complainant who is dissatisfied with the University officer’s decision." The motion was seconded. Senators Atwater and Troy suggested a friendly amendment to change the wording of the sentence slightly: "Upon the recommendation of a committee consisting of the chairs (or their designees) of the Faculty, Staff Advisory Council and Appointed Personnel Organization Council, the University President or his or her designee shall contract with a qualified external service provider to provide qualified external hearing officers and a hearing process for complainants who are dissatisfied with the University officer’s decision." Senator Silverman accepted this friendly amendment. A summary of comments: (1) The selection of hearing officers should be random, so that there is no temptation on the part of service providers to find in the University’s favor in order to garner more business in the future. (2) If a service provider is paid, the payment procedures will need to conform to the procurement code. The motion passed as amended, with 1 vote opposed.
It was noted that Senator Spece’s written suggestion to reject the entire idea of having the University choose an outside service provider is now moot, since the previous amendment passed.
Senator Silverman moved [Motion 1998/99-34s] to delete the final sentence in the "Submission of the Record " section (p. 8), which reads, "While Human Resources should make every effort to accommodate reasonable requests by the hearing officer and parties to the hearing, Human Resources retains final discretion as to the amount, kind and quantity of resources to be devoted to any single hearing or to the overall process." The motion was seconded. One Senator commented that he was uncomfortable with the idea of placing no limit on the amount of resources expended. The motion was carried, with 4 votes opposed.
Senator Silverman moved [Motion 1998/99-34t] to delete the entire "Attorneys or Advisers" section (p. 9) and replace it with: "Either party may be represented by an attorney at any stage in the process including the hearing. At the hearing, the attorneys may participate and present the case on behalf of the parties. In lieu of being represented by an attorney, either party may be advised by a non-attorney adviser at any stage of the process. If the complainant will not be represented by an attorney at the hearing, the University representative will also participate without an attorney at the hearing." The motion was seconded. UA Attorney Thomas Thompson read a relevant section of the ABOR Policy Manual. The motion was carried, with 1 vote opposed and 2 abstentions.
Senator Spece moved [Motion 1998/99-34u] to delete "direct" in the phrase "as a direct result of the disclosure" in the "Hearing Officer’s Decision" section (p. 9, line 8 of the section). The motion was seconded. Senator Atwater offered a friendly amendment to the motion in order to make it consistent with language in the "Whistle-Blower Complaint" section (p. 5, line 9 of the section). She suggested that the wording be changed to "as the result of knowing retaliation for the disclosure." Senator Spece accepted this friendly amendment. The motion was passed unanimously. Thus, the affected sentence now reads, "If the hearing officer finds that any of these personnel actions were taken as the result of knowing retaliation for the disclosure of alleged wrongful conduct, the hearing officer shall direct that the application be reconsidered by the appropriate University faculty bodies and acted upon without regard to the disclosure."
Senator Spece moved [Motion 1998/99-34v] that the final sentence in the "Hearing Officer’s Decision" section (p. 9) be changed to read: "The hearing officer’s decision and subsequent actions of the University are subject to judicial review de novo." The motion was seconded. It was explained that judicial review can take two forms: In one instance, the judge simply reviews the record of the hearing; with review de novo, however, the judge can call witnesses and hear testimony, similar to the process in the original hearing. A summary of comments: (1) This amendment again provides an opportunity for the whole whistle-blower process to be taken away from the UA’s internal procedures. (2) According to the State Personnel Board, de novo procedures favor the state agencies, because they have greater resources than the typical whistle-blower. The motion was carried.
Senator Hogle moved [Motion 1998/99-34w] that the following sentence be added at the end of the "Hearing Officer’s Decision" section, immediately following the provision for judicial review de novo: "An appellant may also choose judicial administrative review." The motion was seconded and passed.
Motion 1998/99-34, to approve the entire Whistle-Blower Policy as amended during today’s meeting, was carried unanimously. The document will be forwarded to the Policy Coordinator and the President for further action, in accordance with the guidelines in the 3-D memo dated December 17, 1998, regarding policy formulation.
3. ADJOURNMENT
There being no further business, the meeting was adjourned at 5:10 PM.
Susan E. Heckler, Secretary
Appendix*
General Faculty Election Results, Spring 1999.
Whistle-Blower Policy, revised draft 3/10/99.
UA Whistle-Blower Policy Timelines (brief summary), dated 2/22/99
ALIS Online excerpts of Arizona Revised Statutes - Title 38 and Article 9.
Memo to Betty Atwater from Terry Burke dated 3/4/99, suggesting an amendment to the draft Whistle-Blower Policy.
Memo to Faculty Senators from Andy Silverman dated 3/22/99, suggesting three amendments to Whistle-Blower Policy.
Memo to Members of the Faculty Senate from Roy Spece dated 3/18/99 regarding Whistle-Blower 2-22-99 Draft Policy
Proposed Amendments to the Whistle-Blower Policy, draft 3/10/99.
Whistle-Blower Policy, revised draft 3/22/99.
*Copies of material listed in the Appendix are attached to the original minutes and are on file in the Faculty Center.
Motions of the Meeting of March 22, 1999
1998/99-34 Seconded motion from the Academic Personnel Policy Committee to approve the Whistle-Blower Policy (draft 3/10/99). The policy was amended and passed unanimously (see below).
1998/99-34a-w Motions made on the floor amending the Whistle-Blower Policy (draft 3/10/99), as described in the text of these minutes. All motions were seconded and passed, except for Motion 1998/99-34g, Motion 1998/99-34o, and Motion 1998/99-34p.
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