MEMO TO: Frank Stahl

MEMO CC: Dave Frohnmayer (UO President),

Gwen Steigelman (Secretary of the Faculty),

Paul van Donkelaar (UO Senate President 2008/9)

MEMO FROM: Peter Gilkey

MEMO DATE: 16 May 2009

MEMO RE: Shared governance[1]

 

Dear Frank.

 

This is in response to your email[2] of 14 May 2009 to me concerning the amendment I offered to US08/09-8[3] at the recent UO Senate meeting 14 May 2009. I am grateful to you for affording me the opportunity to reflect in a philosophical vein on the concept of “shared governance”. Let me discuss things from several points of view:

1.     Managerial practices

2.     Philosophical thoughts

3.     The Oregon revised statues

 

MANAGERIAL PRACTICES

 

I come from a business background – I used to work for “the telephone system” back when there was pretty much a unitary system owned by AT&T[4]. And you can’t run a complex business by committee. There need to be clearly defined lines of authority – and accountability at each level. In the OUS system, the State Board of Higher Education functions much as the board of directors of a large corporation – and Chancellor Pernsteiner is functionally the CEO. The Presidents of the OUS Universities function as division heads – and it is worth remarking that President Frohnmayer is an officer of OUS. For example, the salary savings from his furlough days do not accrue to the University of Oregon but rather directly to the state. By contrast, I am an Officer of Instruction at the University of Oregon – and the salary savings from my furlough days spring quarter 2009 accrue directly to reduce the budget reductions for the College of Arts and Science. This is an essential distinction to keep in mind. From President Frohnmayer the lines of authority flow downwards. For example, when Hal Sadofsky assigned me to teach Math 281 in Fall 2009, he did so with the authority granted him by Dean Coltrane – whose authority derives from the Provost whose authority derives from the President whose authority derives from the State Board of Higher Education and the Chancellor -- I am slightly simplifying things by omitting the role of Vice Provosts and Vice Deans in all this, of course. But the point that I wish to make is that the system is necessarily hierarchical and that the people in my chain of command are individually responsible for their actions in a way that no committee can be responsible. This is particularly relevant for the discussion we shall have next year concerning Conflict of Commitment[5]. Clearly, making decisions on how to employ programmer resources in creating accounting programs is necessarily within the prevue, ultimately, of UO President Frohnmayer as the lines of authority flow upwards to him. It is not, organizationally speaking, within the prevue of the Senate.

Certain matters belong to the faculty and certain matters belong to the administration. The Student Conduct Code[6] is properly a matter for the Senate as is the Curriculum[7]. However, administrative matters involved in the everyday running of the University properly belong to the administrative side of things – these are the “practical affairs of the institution”[8] as I will discuss presently.

 

Philosophical thoughts

 

To quote from the AAUP statement on shared governance[9]

 

“Distinction should be observed between the institutional system of communication and the system of responsibility for the making of decisions”

 

“The president is largely responsible for the maintenance of existing institutional resources and the creation of new resources; has ultimate managerial responsibility for a large area of nonacademic activities; is responsible for public understanding; and by the nature of the office is the chief person who speaks for the institution”

 

“The faculty has primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process.”

 

“The faculty sets the requirements for the degrees offered in course, determines when the requirements have been met, and authorizes the president and board to grant the degrees thus achieved.”

 

“When an educational goal has been established, it becomes the responsibility primarily of the faculty to determine the appropriate curriculum and procedures of student instruction.

 

This seems to me to draw a clear distinction. The President has “ultimate managerial responsibility for a large area of nonacademic activities” and the faculty “has primary responsibility for such fundamental areas such as curriculum …”. There will, always, of course, be a gray area in between the two areas and this aspect forms a creative tension. Let me close with the observation

 

“The allocation of resources among competing demands is central in the formal responsibility of the governing board, in the administrative authority of the president, and in the educational function of the faculty. Each component should therefore have a voice in the determination of short- and long-range priorities, and each should receive appropriate analyses of past budgetary experience, reports on current budgets and expenditures, and short- and long-range budgetary projections. The function of each component in budgetary matters should be understood by all; the allocation of authority will determine the flow of information and the scope of participation in decisions.”

 

It is for this reason that I think it appropriate for the Senate to recommend to the administration the provisions of US08/09-8 which will facilitate this engagement by the faculty -- I think it was in this spirit that our Administration wished to make the relevant financial information available to the University community because they recognize that “each should receive appropriate analyses of past budgetary experience, reports on current budgets and expenditures, and short- and long-range budgetary projections.”

 

Oregon Revised Statues[10]

 

I am not a lawyer and I invite those who are more learned in the subject to weigh in – John Bonine and Melinda Grier for example. Still, there are some evocative portions of the Oregon Revised Statues that seem to support my point of view – namely that certain areas of the University fall naturally under the purview of the faculty and certain under the administration:

 

ORS 352.004[11] Presidents of state institutions. The president of each state institution of higher education within the Oregon University System is also president of the faculty. The president is also the executive and governing officer of the institution, except as otherwise provided by statute. Subject to the supervision of the State Board of Higher Education, the president of the institution has authority to control and give general directions to the practical affairs of the institution.

 

These words seem clear and cogent – the matter with which US08/09-8 is clearly one of the “practical affairs of the institution”. And even the authority of the faculty is circumscribed. When quoting from the charter, one should quote the full words:

 

ORS 352.010 Status of faculty. The president and professors constitute the faculty of each of the state institutions of higher education and as such have the immediate government and discipline of it and the students therein. The faculty may, subject to the supervision of the State Board of Higher Education under ORS 351.070, prescribe the course of study to be pursued in the institution and the textbooks to be used.

 

Now that clearly states the State Board can supervise the curriculum of the Universities. In particular, it is within the grasp of the State Board to mandate, for example, that all undergraduate courses must enroll a minimum of 10 students. Whether this is wise, of course, is a matter for some debate. But it is within their powers. And this is clearly a curricular matter.[12]

To continue the discussion, one could cite (and it is rather lengthy I am afraid)

 

ORS 351.070[13] Board general powers as to higher education and institutions; personnel system; public improvement contracts; rules; fees; student records. (1) The Oregon University System, in accordance with rules adopted by the State Board of Higher Education, shall implement a personnel system and may engage in collective bargaining with its employees. All collective bargaining with any certified or recognized exclusive employee representative shall be under the direction and supervision of the Chancellor of the Oregon University System. The Oregon University System shall have payroll authority pursuant to ORS 292.043 to 292.180.

      (2)(a) The board shall establish competitive procedures for the purchasing, procurement and contracting of goods, services and information technology, for the benefit of the Oregon University System and all the institutions, departments and activities therein. The board may also establish exemptions from the competitive procedures when appropriate.

 

      (b) The board shall ensure that the hourly rate of wage paid by any contractor upon all public improvements contracts undertaken for the board shall not be less than the same rate of wage as determined by the Bureau of Labor and Industries for an hour’s work in the same trade or occupation in the locality where such labor is performed. Claims or disputes arising under this subsection shall be decided by the Commissioner of the Bureau of Labor and Industries.

      (c) The board shall adopt policies and procedures that achieve results equal to or better than the standards existing on July 17, 1995, regarding affirmative action, pay equity for comparable work, recycling, the provision of workers’ compensation insurance to workers on contract and the participation of emerging small businesses and businesses owned by minorities and women.

      (3) The board may, for each institution under its control:

      (a) Appoint and employ a president and the requisite number of professors, teachers and employees, and prescribe their compensation and tenure of office or employment.

      (b) Demand and receive the interest mentioned in ORS 352.510 and all sums due and accruing to the institutions of higher education for admission and tuition therein, and apply the same, or so much thereof as is necessary, to the payment of the compensation referred to in paragraph (a) of this subsection and the other current expenses of the institutions.

      (c) Prescribe fees for enrollment into the institutions. Such enrollment fees shall include tuition for education and general services and such other charges found by the board to be necessary to carry out its educational programs. The board may award student aid from any fund other than the General Fund.

      (d) Prescribe incidental fees for programs under the supervision or control of the board found by the board, upon its own motion or upon recommendation of the recognized student government of the institution concerned, to be advantageous to the cultural or physical development of students. Fees realized in excess of amounts allocated and exceeding required reserves shall be considered surplus incidental fees and shall be allocated for programs under the control of the board and found to be advantageous to the cultural or physical development of students by the institution president upon the recommendation of the recognized student government at the institution concerned.

      (e) Upon recommendation of the recognized student government, collect optional fees authorized by the institution executive, for student activities not included in paragraph (c) or (d) of this subsection. The payment of such optional fees shall be at the option and selection of the student and shall not be a prerequisite of enrollment.

      (f) Confer, on the recommendation of the faculty of any such institution, such degrees as usually are conferred by such institutions, or as they deem appropriate.

      (g) Prescribe the qualifications for admission into such institutions.

      (4) Subject to such delegation as the board may decide to make to the institutions, divisions and departments under its control, the board, for each institution, division and department under its control:

 

      (a) Shall supervise the general course of instruction therein, and the research, extension, educational and other activities thereof.

      (b) Shall adopt rules and bylaws for the government thereof, including the faculty, teachers, students and employees therein.

      (c) Shall maintain cultural and physical development services and facilities therefor and, in connection therewith, may cooperate and enter into agreements with any person or governmental agency.

      (d) May contract to provide health services at student health centers.

      (e) Shall provide health services at student health centers to students.

      (f) May provide health services at student health centers to any of the following:

(A) Dependents of students.

(B) Staff

(C) Faculty.

      (g) Shall prescribe and collect charges.

      (h) Shall adopt rules relating to the creation, use, custody and disclosure, including access, of student education records of the institutions that are consistent with the requirements of applicable state and federal law. Whenever a student has attained 18 years of age or is attending an institution of post-secondary education, the permission or consent required of and the rights accorded to a parent of the student regarding education records shall thereafter be required of and accorded to only the student.

      (5) For each institution under its jurisdiction, the board shall provide opportunities for part-time students to obtain complete undergraduate degrees at unconventional times, which include but are not limited to early morning and noon hours, evenings and weekends. In administering these degree programs, the institution may use any educational facility available for the use of the institution. [Amended by 1953 c.545 §2; 1971 c.375 §1; 1971 c.708 §9; 1973 c.331 §1; 1979 c.159 §2; 1989 c.308 §1; 1989 c.311 §1; 1989 c.492 §1; 1993 c.806 §7; 1995 c.612 §8; 1997 c.231 §1; 1999 c.59 §98; 2003 c.14 §156; 2003 c.674 §7; 2003 c.817 §1]

 

Now that is rather interesting. For example 3f above states “(f) Confer, on the recommendation of the faculty of any such institution, such degrees as usually are conferred by such institutions, or as they deem appropriate.” Thus degrees are granted by the State Board and not by the faculty.

 

That was what made the delegation directly to the Universities the authority to grant honorary degrees to students in WW-II whose education had been interrupted by being ordered to internment camps such a fascinating piece of legislation (see HB2823 in 2007[14]) since for the first time it permitted the individual institutions to award degrees directly without going through the State Board and bypassed the provisions of provision 3f. This led to UO Senate legislation US06/07-15[15] and to subsequent Senate Action in Executive Session on a recommendation by the DSA[16] -- you can probably contact Dave Hubin for further details. Furthermore, note that the situation for handling this matter at OSU was quite different – there it was not a faculty mediated process but an administratively generated one.[17] Finally note that each Spring the UO Senate deals with the matter of granting degrees under the regular process.[18]

 

To continue the discussion. Section (4c) of ORS 351.070 is revealing as it emphasizes that the curriculum and indeed the faculty governance of the University is under the control of the State Board “Shall supervise the general course of instruction therein, and the research, extension, educational and other activities thereof.” So the curriculum is not under the final authority of the faculty – as noted above in the footnote dealing with minimum class size.

 

And furthermore one  has

 

351.072 Adoption of certain standards not subject to rulemaking procedures; limitations. (1) Notwithstanding ORS chapter 183, the following actions may be taken by the State Board of Higher Education or the educational institutions under its control without compliance with the rulemaking provisions of ORS chapter 183:

(a) Adoption of standards, regulations, policies or practices relating primarily to admissions, academic advancement, classroom grading policy, the granting of academic credits, granting of degrees, scholarships and similar academic matters.

 

Thus even classroom grading policy is, in principle, under the control of the State Board of Higher Education. Of course, that does not necessarily make exercising such control wise public policy. And historically the State Board has delegated its authority to the University Presidents and Provosts and they have in turn listened carefully to the faculty voice in such matters for the most part. The Board has for the most part in the past wisely declined to meddle in the curricular affairs of the Universities.

 

Summary

 

Hard cases make bad law. There are some areas clearly within the prevue of the administration. And some areas are clearly within the prevue of the Senate. And there are gray areas as well. And, like all human institutions, a bit of kindness, courtesy, gratitude, understanding, and even humor[19] go well.

 

Thank you for affording me the opportunity to ramble on just a bit. I hope this provides just a bit of contextualization on why I used the word “requests” rather than “directs” – I genuinely don’t believe the Senate has the right to “direct” the administration in matters such as – nor do I believe that it would be wise public policy for the Senate to “direct” even if it could. And I hold this viewpoint based not only on a reading of the relevant ORS (in particular ORS 352.004), but also from the point of view of the AAUP, and also from what I understand of managerial theory. The Senate simply lacks the authority to “direct” the President of the University of Oregon concerning the “practical affairs of the institution”.