RESPONSE TO REVISIONS TO SBOE GOVERNING POLICY AND PROCEDURES (December 9, 2009)
By Nick Gier, President, Higher Education Council, Idaho Federation of Teachers, AFT/AFL-CIO
With the help of national AFT counsel Daniel McNeil, I offer the following comments below. We are pleased that the ill-advised revisions of August have been withdrawn, but we are troubled by the fact that the campus senates, after being challenged to come up with their own language, have now been preempted by these new revisions from the Board.
1. Confusion about Board Authority. There appears to be a conflict between II.B.2.a and II.B.2.b. The former section gives final authority to the Board, but the latter seems to give final authority to campus executives in key areas of personnel management “except or unless as limited by other applicable provisions of Board or institutional policy.” The IFT Higher Education Council prefers to leave all final decisions on these essential matters with the Board.
2. Campus executives already had this power. In its original language the third paragraph of II.N.1 states that the “organizational structure, duty assignments, FTE count, place of work, shift placement, salaries, work hours, benefit determination and reductions in force and all similar and related work place decisions are the prerogative of the chief executive officers.” This identical language has now been moved to II.B.2.b, but we again much prefer the stipulation that these campus decisions are “subject to the reserved authority of the Board where applicable” (II.N.1, para.3) and are available only by means of a declaration of financial exigency.
3. Insufficient Due Process. Although we approve of the provision in II.B.2.d to allow in-put from affected units, there is no right to appeal any executive decisions. The financial exigency policy in II.N contains provisions for notice, in-put, and appeal that have been vetted by our national legal office and the American Association of University of Professors. Due process in II.B.2.d should be no less than that provided for financial exigency. Without full due process the rights of Idaho’s higher education employees are severely compromised.
4. Rights of Tenured Faculty. Section II.B.2.c properly excludes tenured faculty members from any “reduction in force,” but II.G.c states that the salaries of both tenured and non-tenured faculty may “not be guaranteed . . . in subsequent contracts or appointments.” Our associate counsel has discovered at least two legal precedents that establish that tenure protects base salary. Tenure has long been recognized as a property right, and the judges in these cases ruled that one’s base salary is part of that property.
5. No Due Process for “other than layoff” under Financial Exigency. We are deeply troubled by the deletion of subsection 7a-b under II.N. At the December 1st UI faculty senate meeting, Ag. Dean John Hammel stated that he could have moved the Parma faculty to any other station he chose. Removing this subsection would allow all campus administrators to do this under financial exigency without giving the employees any due process at all.
6. Program Reduction Policy “Severely Deficient.” Recently the University of Idaho filed “notices of intent” to close the research and experiment stations at Sandpoint, Tetonia, and Parma. Section III.G was citing as the specific authority to do this. In a December, 2008 legal brief national AFT associate counsel Samuel J. Lieberman declared that the policy is “severely deficient in terms of procedural due process safeguards.” He states that the procedures “do not comport with Idaho law” and the termination of any faculty member could be challenged in court.
These procedures were hastily devised (complete with jumbled syntax) in October 2002 in order to close programs in geological and mining engineering, and since then the IFT Higher Education Council has been requesting that they be revised to meet minimal legal and professional standards.