Criticism arises over tenure consultants

by Brian Bakst

Too far away and too far removed is how some University faculty members and administrators view the Board of Regents’ tenure consultants.
Currently, the board relies on one policy consultant and two law firms to advise them on matters pertaining to tenure and unionization: Harvard professor Richard Chait, the Washington, D.C.-based Hogan & Hartson law firm and Minneapolis-based Briggs and Morgan law firm.
Faculty members and some administrators have criticized the board’s use of the consultants for various reasons. The sore points include the cost of hiring consultants and the persons doing the hiring.
But regents and their staff members have said they need the additional input, and that the consultants are the nation’s best.
“Why would you not want the best?” asked Kim Isenberg, the regents’ policy project assistant.
However, Faculty Consultative Committee Chairwoman Virginia Gray said she and other faculty members worry that “someone from that far away doesn’t understand the local situation.”
Faculty members also made complaints that consultants are “hired hands” without a long-term interest in the University, and lawyers won’t be around when the time comes to deal with implications of tenure reform.
“They won’t be around to catch all the flak and bear the consequences,” Gray said.
Chait, who heads the Center for Higher Education Governance and Leadership in College Park, Md., is considered a national expert on tenure. Chait has published numerous articles and advised more than 30 college boards on governance issues in the last five years. Most recently, he advised the Arizona board of regents when it was contemplating tenure reforms.
Chait was paid $25,000 by the University for tenure consultation from May to September. The regents voted to extend his contract indefinitely during their September meeting in Morris, Minn. The board has yet to specify how much Chait will receive for his advice for the duration of the University’s tenure reform process.
Regent Patricia Spence, a co-author of the regents’ most recent tenure reform proposal for the Law School, said Chait has been “extremely helpful” in deciphering tenure code proposals and national tenure trends.
“He helped us talk through what we hoped to achieve,” Spence said of meetings the board had with Chait.
At the regents’ retreat in August, Chait challenged board members to consider the pros and cons of the changes they wanted to make.
Meanwhile, in July the regents employed law firm Hogan & Hartson, which has been retained in the past by the Office of the General Counsel to help draft tenure code language.
For their work on the tenure code, Hogan & Hartson attorneys Martin Michaelson and Steven Routh receive $246 and $212 per hour, respectively, plus other expenses.
Although the law firm’s contract said it would bill the University on a monthly basis, University Associate General Counsel Bill Donohue said Hogan & Hartson has not submitted a bill for the work they’ve done since this summer.
In an April letter to the University that expressed the firm’s interest in working with the tenure code, Michaelson wrote that the law firm has “worked extensively with University managers and some faculty members on various (tenure) proposals to date.”
Spence said she worked closely with Chait and Michaelson when she was drafting the Law School-specific tenure proposal unveiled early this month.
But History professor Hyman Berman said the “hired guns” only tell the regents what they want to hear. “The consultants ill-served the regents by giving the regents what they wanted,” Berman said. “They did not get a national perspective, they got a mirror.”
Berman said he thinks the regents knew which changes they wanted to make, but needed someone to tell them the changes were not outlandish.
For example, he said, Chait and Michaelson told the regents their initial suggested tenure revisions were “in the middle of the fairway.”
Many University professors and a prominent faculty organization didn’t think this was the case. The American Association of University Professors sent a letter to the regents following the Morris meeting condemning the suggested revisions for being outside the mainstream.
Meanwhile, a group of professors upset with the suggestions halted tenure changes for all parts of the University except the Law School. They collected union cards from at least 30 percent of faculty members for the state to freeze all changes to faculty employment terms and conditions.
In response to these developments, the board sought more outside help by consulting with another law firm to represent it on labor issues. General Counsel hired Daniel Wachtler and Mark Ayotte, of Briggs and Morgan, to provide legal advice and services on union issues for $190 and $170 per hour, respectively, plus expenses.
Donohue said the University has not been billed yet by that law firm. Donohue would not speculate how much money the University would end up paying for the two firms.
Marvin Marshak, senior vice president for Academic Affairs, said he believes there are times when outside expertise is needed. But Marshak disagrees with how consultants were selected.
“If there were to have been consultants, they should have been hired by the (University) president,” Marshak said.
The administration tried using its own consultant during an October 1995 regents meeting when the possibility for tenure changes were first discussed. At that time, University President Nils Hasselmo requested Purdue professor and national tenure authority Judith Gappa to speak to the board about tenure.
“The regents were dissatisfied with the breadth of Gappa’s presentation and set out to more clearly express the Board’s objectives,” Board of Regents Chairman Tom Reagan told State Rep. Becky Kelso, DFL-Shakopee, in a February letter.
Two months later, Chait was hired. Marshak said the regents’ decision to hire their own consultants might have impaired the relationship between the regents and the administration. “Real problems developed when the regents stopped having confidence in the administration’s ability to solve this issue,” he added.
Gray said regents are relying too much on outsiders to make important decisions for the University rather than using the usual shared-governance structure. “They seem to be spending a lot of money kind of reinventing the administration,” Gray said.