Layoffs are key to debate

by Brian Bakst

Editor’s note: With the issuance of a cease-and-desist order by the state Bureau of Mediation Services forbidding further tenure discussions by the University Board of Regents and University faculty until a faculty union election is held, a resolution to faculty tenure issues seems further away than ever. This article explains recent tenure proposals and responses to them.

Despite a plea from University President Nils Hasselmo asking the Board of Regents not to call for extended layoff authority, regents announced controversial suggested revisions to the faculty tenure code in early September.
A provision that would make it easier for administrators to lay off tenured faculty drew criticism from Hasselmo and many faculty members. But some regents continued to say the administration should have stronger layoff authority.
Regent Jean Keffeler, who has played a major role in promoting tenure changes, said the request for layoff power is not out of the ordinary. “This is a reasonable enough authority for the board to reserve,” she said.
Keffeler called for an evaluation of the tenure code in the spring of 1995. Tenure became a focal point of the regents’ discussions last fall, when the state Legislature made a $6.6 million appropriation to the Academic Health Center contingent upon tenure revisions. The legislative action prompted regents to review tenure universitywide.
Some regents hoped to use the tenure revision process to give administrators more flexibility in personel decisions. Also, many sought to rid the University of unfit professors, often referred to by both faculty and administrators as “dead wood.”
Faculty Consultative Committee Chairwoman Virginia Gray said the regents have gone too far. “I’ve heard administrators saying they are afraid to have this much power,” Gray said.
The layoff provision would give administrators added leeway when dealing with tenured faculty after departmental changes or cutbacks.
Under the present code, all faculty must be reassigned within the University when a department closes or reduces its staff. But under the suggested code administrators could terminate the employment of faculty rather than reassign or retrain them for other positions in the University.
“The University of Minnesota neither needs nor deserves the Tenure Regulations proposed in the draft,” Hasselmo wrote to Regents Chairman Thomas Reagan. “With this draft, tenure at Minnesota will be weakened — appearing to rest on little more than a notion of ‘at will’ employment.”
The regents’ 1991 decision to close the Waseca campus is one example of where layoff authority might have been used.
The closing resulted in the reassignment of 20 of 33 tenured faculty members — the remaining 13 resigned or retired. About half of the reassigned faculty members filled vacant positions on other University campuses. Administrators had to create positions for the others, which they wouldn’t have been required to do under the new proposal.
Marty Michaelson, from the Washington D.C. law firm hired by regents to help revise the tenure code, said the layoff authority is more of an insurance policy, and may never be exercised.
Law professor and tenure expert Fred Morrison disagrees. “It is my assumption that if the power is adopted, the power will be used,” Morrison said.
Others also question why the clause exists if regents do not intend to use it. Hasselmo said regents must beware of implementing extended layoff authority if it does not serve an immediate purpose. “It does have an effect on attitudes,” Hasselmo said.
But Reagan said the authority may be useful for future administrators. Hasselmo intends to retire June 30, 1997. “We want to give our administration the tools they need to steer down the road,” Reagan said.
Reagan added the regents want to include enough provisions to ensure the code will not have to be revised again in the near future. “As long as we are doing it, we are saying ‘let’s do it right and fix it once,'” Reagan said.
According to an August report prepared by a regent tenure consultant, only three other Big Ten schools do not guarantee protection of tenured faculty in the case of programmatic change.
The report also states that two of the three — Pennsylvania State and Northwestern — offer more protection than the University regents’ suggested changes. Only Purdue’s tenure code is comparable, the report states.
Hasselmo also told regents that radical changes may result in faculty recruitment problems. The University estimates it will have to replace about 1,000 faculty members who will retire in the next 10 years.
Hasselmo instead reaffirmed his request that Faculty Senate tenure revisions be accepted.
The Faculty Senate offered the regents a list of proposed tenure revisions in early June. The faculty’s suggested changes include more temporary teaching assignments, longer probationary pre-tenure periods and a series of post-tenure peer reviews which could result in pay reduction.
The Faculty Senate’s proposal includes no language allowing for layoffs when departments or programs are discontinued.
In a speech at the regents’ meetings, Reagan said changes beyond the Faculty Senate proposal are necessary. Reagan said, “… simply to rubber stamp the Faculty Senate proposal would in our judgement fall short of the role and responsibility entrusted in the Board by the State constitution, and indeed, the tenure code itself.”
Reagan added that the University must not be afraid to be a leader in tenure reform while holding on to its traditions.
“As we look to the health and welfare of the University and address the tough issue of tenure, we must be attentive to tradition, yet willing to try new things,” Reagan said. “And we cannot afford to be afraid to lead.”
Reagan commended the board for its courage in taking up such an explosive issue. “There are a lot of universities who haven’t had the guts to look at tenure.”
One thing was apparent to faculty members throughout the discussion — they have a friend in Hasselmo. The president repeatedly questioned parts of the suggested revisions.
Edwin Fogelman, chairman of the Political Science department and the Judicial Committee said, “I think the president’s comments were just, appropriate and right.”
The disagreement between Hasselmo and the regents was defended by Hasselmo and Reagan in a post-meeting news conference. “Sometimes we have disagreements, as it should be,” Hasselmo said. “We are working toward common goals.
“The board expects me to state my opinion and that’s what I have done,” he said.
Reagan agreed. “Those who want to make the case that the board is not in sync with the administration, they’re wrong,” Reagan said. “We are tuned a little differently as to how we look at certain policies.”
The suggested changes had been discussed with some members of the faculty leadership before they were discussed at the regents’ meeting, Reagan added. He said the two sides agreed that three of the four changes which differ from the Faculty Senate revisions — faculty compensation, post-tenure review procedures and disciplinary action circumstances and details — could be resolved.
The fourth, layoff authority, Reagan called a “flashpoint.”
But this informal meeting between the two sides took place before faculty leadership had seen a draft of suggested revisions. Therefore, many faculty were shocked and angered when the suggested revisions were unveiled.
“The document was very different than the flavor you got at the retreat,” said Gray, referring to tenure discussions at the regents’ August retreat. “We didn’t know due process was going to be removed at every juncture.”
Other faculty members shared Gray’s sentiments. “It’s an insult to the faculty to present a document that the faculty has not yet had the ability to review,” said biochemistry professor and Tenure Subcommittee member Mary Dempsey.
The layoff provision, however, was not the only part of the suggested revisions that drew fire from faculty, administrators and some regents. A section relating to pay reduction was also debated.
The draft reviewed at the regents’ meeting said a faculty member’s base salary could be reduced for four reasons: substandard performance as determined by a peer review board, serious disciplinary action, fiscal emergency or another “compelling” reason.
The ambiguous wording of the fourth reason drew the most criticism from Hasselmo and Regent Julie Bleyhl.
Hasselmo said he was concerned “compelling” reasons could infringe upon a faculty member’s academic freedom.
Bleyhl wanted assurance that “compelling” would be the same in all cases. “‘Compelling’ to one person may not be the same to another. It’s very discretionary,” she said.
The executive summary attached to the regents’ suggested revisions said reductions in pay for “compelling” reasons would not apply to individual faculty members. However, the actual tenure revisions fail to reflect this point.
It states, “Absent reasons found to be compelling by the Board of Regents or its delegate, it is expected that a faculty member’s base salary will not be decreased except by action” otherwise noted throughout the code.
The suggested revisions do stipulate a difference between base and supplemental salary. This difference is innovative in faculty tenure codes, Michaelson said.
The wording of the salary reduction clause was only one of the ambiguities in the presentation, said some faculty members. In the programmatic change section, the word “restructuring” was used.
Richard Chait, a national tenure expert hired by the regents, said “restructuring” is not very commonplace in tenure codes nationwide. He suggested the use of three other words: termination, consolidation and reduction.
Faculty were also angered by a disciplinary action clause in the regents’ suggested tenure code. The draft states disciplinary action can be taken if a faculty member does not portray “a proper attitude of industry and cooperation with others within and without the University.”