Under the new OAR and IMD on post-tenure review, we have the authority to include in the University of Oregon's policies a requirement that any salary reductions linked to post-tenure review take place only in a way that protects academic freedom. I hope that the Senate will adopt such an amendment to whatever policy is adopted tomorrow.

That is, pay cuts should occur only after a proper "for-cause hearing" that includes full academic due process protections, and that is tied to the current standard of "incompetence."

I believe that Professor would agree with me, but I also believe that his wording in his proposed policy is not sufficient to accomplish this. Nothing in the recently adopted OARs and IMD prevent us from insisting on this.

Professor Hurwit writes: Under "The Use of Reviews," Section A ("Reward for Performance"), Paragraph #1, I have quoted the OARs and the IMD with which we must comply.

In this message, I have quoted them in greater detail, to show that they require less than it appears at first glance. I have also examined the protections that **other** OARs give us.

Most importantly, here is what OAR 580-021-0320, one of the regulations that protects our academic freedom says:

"The appointment of a tenured or nontenured academic staff member may be terminated, or other sanctions imposed, FOR CAUSE. SANCTIONS for cause include oral or written warning or reprimand, removal from an assigned post and reassignment, suspension for a period not to exceed one year and termination. Sanctions MORE SEVERE than oral or written warning or reprimand SHALL be imposed IN ACCORDANCE with the procedure in OAR 580-021-0325 through 580-021-0385." (My emphasis.)

I urge that at an appropriate point tomorrow in the Senate meeting, someone offer an amendment to insert a provision in whatever policy we adopt, saying something like this:

Any proposals for reduction in salary will be treated only as a suggestion that the Administration considering filing charges for incompetence under OARs 580-021-0320 through 580-021-0470, and that it be done only in cases of apparent incompetence.

Senators, one of the jobs of lawyers to warn others when words (or their omission) in policies may cause harm. Lawyers do not hold the keys to the Kingdom, however, nor is their advice normally generated on stone tablets high on the mountainside. In fact, they spend their lives disagreeing with one another. So any advice you get that these protections are NOT needed must be weighed against the contentions of those like me whose experience in Administrative Law and whose devotion to the protection of the careers of competent professors leads to (often justified) worrying.

I have written above that we should limit any pay cuts to incompetence. That must be the standard, not "serious problems or deficiencies" as in Prof. Hurwit's proposal up to this point. The OARs state:

"Evidence to demonstrate cause under the standard set forth in subsection (1)(c) of this definition of "cause" may include, but is not limited to, evidence of incompetence; gross inefficiency; default of academic integrity in teaching, research or scholarship; intentional or habitual neglect of duty and failure to perform adequately for medical reasons."

Professor Hurwit wrote in his message to you yesterday: In Paragraph #2, I have simply proposed that our reward system be in compliance with the OARs and IMD by increasing the salary of faculty who have negotiated the PTR process successfully and by entertaining the possibility that faculty who have not done so may actually suffer adjustments downward.

Unfortunately, the wording of Prof. Hurwit's proposal goes beyond merely entertaining a possibility, and do not offer the clear protections of existing OARs. Here are the complete words from Prof. Hurwit's proposal: "Faculty whose sixth-year review identifies serious problems or deficiencies in performance may have their salary adjusted accordingly."

The obviously simple and straightforward way of preventing this from being a carte blanche is to require that no such pay cuts can take place except within the normal for-cause procedures.

It is essential to require the Administration to bear the "burden" of showing "incompetence," the current standard. Without such a cross-reference, the standard of incompetence has been relaxed to one of "serious problems or deficiencies."

The current regulations make clear who has the burden: "The administration shall have the burden of proving its formal charges against the academic staff member"

I presume that all of us wish to retain this protection. It is clear that the new IMD does not require us to give it up.

In one sense, it is accurate to say that giving Deans or the Provost's Office this authority only "entertain[s] the possibility" that the professor "may actually suffer adjustments downward." It is clear, however, that the current wording contains no restrictions, standards, or procedures to limit such salary reductions -- nor says who will determine whether a problem or deficiency is "serious" or minor, nor uses a standard of incompetence as required by OARs.

Professor Hurwit wrote: I am not happy about this, and, frankly, I doubt that it will happen very often, if at all. But it seems to me to be what the OAR says we must consider.

I believe that we must consider more, such as what I have proposed above.

It would be sufficient if we were only "consider[ing]" this, but we can consider it without adopting it. What we should actually adopt is something that ensures that protections already in place will continue. It is not enough for someone to assure us that they will continue. In reality, a professor may not have legal advice, if someone should try to effect a pay cut without going through a for-cause hearing. Putting a provision directly into our post-tenure policy makes it less likely that pay cuts will be done through improper processes.

Nothing in the State Board's latest OAR and IMD prevents us from doing this. The OAR adopted in February (note added by senate webmaster that the relevant documents are available on the web at OAR) states in part: 580-021-0140 (2) The purposes of post-tenure review are to: . . . (c) clearly link the level of remuneration to faculty performance . . ..

We can "clearly link" without abandoning our procedural protections. The IMD says: Internal Management Directive on Pot-Tenure Review IMD 4.002 [E]ach institution shall develop post-tenure review guidelines, which shall be filed with the Chancellor's Office. Institutional guidelines shall include, but not be limited to: . . . (5) a description of the institutional plan for relation of post-tenure reviews to the faculty reward system so that annual salary-adjustment decisions (i.e., increase, no increase, decrease) will reflect the result of performance evaluations;

Our Policy Statement will be the institutional plan to make pay cuts reflect performance evaluations. But nothing here prevents us from insisting that pay cuts ONLY occur for those professors where an official making charges has been able to prove their incompetence, in a for-cause proceeding (guaranteeing academic due process).

In fact, the IMD itself says: (7) . . . Any personnel actions for cause shall be implemented in accordance with OARs 580-021-0320 through 580-021-0470.

While this statement is placed in paragraph (7), nothing prevents us from insisting upon it for ALL aspects involving pay cuts.

Prof. Hurwit wrote yesterday in his message to you: Third, we are required to adopt a policy that complies with specific OARs (Oregon Administrative Rules) and IMDs (Internal Management Directives) regarding post-tenure review, and that clearly links our policy with OARs and IMDs. Should we adopt a policy that is vague is this regard, there is the very real danger that the State Board will reject it. This is an embarrassment that, I believe, it is my responsibility to try to avoid.

My proposal is not for a policy that is vague, but for one that is even more explicit than the version before you. I should point, however, that nothing in the OAR or IMD says that the State Board will "reject" the plans of individual universities. The only requirement is that the plans be "filed" with the Chancellor. Of course, the board could use that occasion to take control and reject a plan. But protecting our academic freedom should not be a cause for rejection. If it is, we are in more trouble than any of us has imagine.

Finally, I would even go further than the brief sentence I have proposed, and propose that we add this language as an amendment to the policies: Such proposals or recommendations and the reports leading to them will not themselves be offered in such for-cause proceedings, for they are second- or third-hand evaluations, not direct evidence of incompetence or dereliction of duty. Only original, direct evidence is to be offered in such proceedings, where it can be tested according to proper evidentiary standards, the professor's full rights can be protected, and a decision can be reached with the highest assurances of accuracy.

This will make it clear that in a for-cause hearing, facts should be the standard, not second- or third-hand evaluations of facts. One cannot "cross-examine" an evaluation. The OAR permits cross-examination and testing of "evidence" for its accuracy.

Sincerely,

John E. Bonine Professor of Law