Correspondence from Senate President Paul van Donkelaar to DOJ Nov 2008

Text of an email from Joe McNaught in response to Senate President Paul van Donkelaar's question to Donald Arnold, Chief Counsel, Department of Justice, concerning the timing of a statutory faculty meeting.

To: Arnold Donald (don.arnold@doj.state.or.us)
From: Paul van Donkelaar (paulvd@uoregon.edu)
Date: Wed, 12 Nov 2008 12:02:13

Dear Mr. Arnold:

I seek a point of clarification concerning the DoJ opinion OP-6735 concerning the quorum and voting requirements of the statutory faculty at the University of Oregon. On page 16, the opinion points out a number of actions which can be taken to reconcile the tensions created under IMD 1.123 and ORS 352.010 including having the statutory faculty recommence meeting and/or delegating the exercise of their statutory powers to the Assembly. We do plan to have at least one such meeting this academic year, but the question arises as to whether such a meeting needs to occur as soon as possible (i.e., in the next month or two) or if it can wait until later in the spring term (i.e. April 2009). The reason for bringing this question up is that there are some faculty who are concerned that with OP-6735 finalized, any action taken by the University Senate will no longer have any legal standing. On the other hand, some of us would rather wait so that we can work through a more thorough process for revising the internal governance at the UO.

Any clarification you can provide as to whether it is fine to delay holding a statutory faculty meeting until April 2009 would be greatly appreciated.

Yours,

Paul van Donkelaar

Professor van Donkelaar:

Chief Counsel Don Arnold is out of the office. He asked me to send his response (set forth below) to your November 12, 2008 inquiry about deferring a faculty meeting until the spring:

Our principal concern is that the University avoids any challenge as to the legitimacy of the faculty's delegation of their statutory authority over various issues. We understand that the University Senate acted on behalf of the faculty in approving various delegations and sub-delegations.

The unavoidable question is whether the statutory faculty sufficiently authorized the Enabling Legislation and the creation of the Assembly and the Senate such that the faculty's authority has been effectively delegated. As we noted in our prior advice, it appears that at some point the faculty (exclusive of administrators and students) stopped meeting. We also understand that it is likely that less than a majority of the faculty or Assembly approved the adoption of the Enabling Legislation. Hence, if an ORS 174.130 quorum was necessary, the initial passage of the Enabling Legislation would be ineffective. But since we have concluded that ORS 174.130 does not apply to the faculty or the Assembly, the prior approval of the Enabling Legislation is not ineffective due to the lack of a quorum alone. And we understand that a majority of the members of the statutory faculty who were present at the meeting where the Enabling Legislation was approved likely did vote in favor of that legislation. While that meeting was not called exclusively as a meeting of the statutory faculty, we believe that the faculty attendees likely understood at some level that they were exercising faculty governance powers. Accordingly, we are willing to defend the effectiveness of the Enabling Legislation and its subsidiary delegations against legal challenges even if the statutory faculty does not meet formally until after the conclusion of the internal governance review.

Notwithstanding the foregoing commitment to defend, it is preferable to avoid any legal questions about the validity of the faculty's delegation of their statutory powers. Accordingly, we recommend that, at some point in the reasonably near future, the faculty (presided over by the President of the University) hold a meeting and, among any other agenda items, take action along the following lines for precautionary purposes only:

• To the extent that it may be argued any prior approval or delegation by the faculty is invalid, o Approve a delegation of the faculty's ORS 352.010 powers to the Assembly and the Senate or to any successor groups under the framework of the Enabling Legislation as it may be amended; and
• Approve and ratify all actions taken by the Assembly and the Senate under the Enabling Legislation to the extent such actions are an exercise of the faculty's ORS 352.010 powers.

We understand that significant and well-considered preparations must occur before such a faculty meeting. While there are risks associated with delaying a faculty meeting, there also are risks associated with holding a meeting without adequate preparation. In light of our willingness to defend prior Assembly and Senate actions, we believe that the faculty reasonably may defer holding a meeting until the spring. Again, the President of the University is the President of the faculty and, as such, is the presiding officer or chair of such a meeting. Accordingly, we encourage you to work with the President's office in developing a strategy, agenda, and date for such a meeting. Finally, while we want to continue to be responsive to the needs of the University community, we ask that you coordinate future requests for advice with the President's Office.