UHPA Files Dissent on Tenure Group Discussions

The following is a copy of UHPA Executive Director Christian Fernʻs dissent to the Board of Regents Permitted Interaction Group (see page 188) on Tenure, Sept 10, 2021.

Letter of Dissenting Opinion 

(also published on page 211 of the BOR Sept 16 meeting materials)

Aloha Chair Moore and Board of Regents:

On February 18, 2021, the University of Hawai‘i Board of Regents established and gave the Tenure Permitted Interaction Group (“Task Group”) an important assignment; to fully explore tenure, including its history and purpose, how tenure has evolved, current views of tenure from those outside the University of Hawai‘i system, and a review of current processes, criteria and decision-making on tenure.

In the last legislative session, certain legislators began to audaciously step outside the scope of their responsibilities and attempted to micromanage the University of Hawai‘i’s operations. It was appalling to witness a legislator publicly admit that the positions of specific tenured faculty members were being targeted for termination. This is some important context because tenure has been a topic of debate and discussion for more than half a century, and was one important reason the faculty sought fair representation with the University of Hawaii Professional Assembly in 1974.

The formation of this Task Group was based in part on the bold, even vindictive, attacks on individual faculty members and the autonomy of the University of Hawai‘i. The intent was to address tenure in an objective manner, not further the predilections of legislators and influence their capricious decision-making.   

Rather than taking advantage of this unique opportunity, we find ourselves in a counterproductive situation. Many members of the Task Group came to the table with erroneous, preconceived notions about tenure, which unfortunately has impacted the objectivity of the group’s overall focus and discussions.  I felt it was my kuleana to represent the interests of the faculty, and my words and detailed explanations fell on deaf ears in my attempt to change the narrative to accurately reflect what tenure is and is not.  Tenure is not merely job security, and does not accurately define the work of faculty members, but rather it describes the protection from interference in how faculty carry out the elements of their work, whether in classroom instruction, or in the right to publish thoughts, ideas, beliefs, political issues or research.  This right dramatically differentiates faculty from any and all other state employees.  

Our discussions have not revealed any valid or actionable problems with the University of Hawai‘i’s tenure processes that have merit to address, yet the Task Group is moving ahead in  proposing sweeping changes that are very top-down in nature and clearly not necessary. There is no question that the proposed recommendations from the Task Group will cause undue anger and frustration among the faculty, who have endured constant attacks from external forces and will now be facing an internal enemy at a time when it is most important for us to move forward together. 

Based on my observations and our discussions to date, we have strayed away from that original purpose and are not delivering on the requests and expectations of the Board of Regents. The discussions and the decisions made by the Board of Regents based on the Task Groupʻs recommendations will ultimately negatively impact faculty. The Board of Regents cannot take this decision, role, and responsibility lightly. I am writing this as my formal personal dissenting opinion as a member of the Task Group. For the record, I would like to make the following points about tenure that I hope the Regents will seriously consider before making any determination or decision:

  • First, the Task Group erroneously approached tenure as an obstacle to quality teaching and research at the University of Hawai‘i by viewing tenure purely and solely as a tool of absolute job security or lifetime employment. As a result, the underlying tone and tenor of the discussions were antagonistic instead of exploratory. It was evident that there was a predetermined agenda and intent on dismantling the UHʻs tenure system. I truly believe this was not the intent and purpose of the Board of Regents. These Task Group members, including some UH administrators, mistakenly believe the University of Hawai‘i administration has virtually no ability or avenue to intervene and/or address substandard performance.  The prevalent perception is that tenure is an iron-clad protection from terminating faculty members who do not meet performance expectations and requirements of the position.  Unfortunately, these skewed notions are impacting the entire group-think process.
  • I appreciate the Task Group’s invitation to Deb Halbert, who offered meaningful background information on the history and purpose of tenure to bring all members up to speed and establish a common baseline of our understanding of tenure. However, our discussions are not being built on that foundation and there is a divergence of opinions that is holding us back from making thoughtful decisions and recommendations to the Board of Regents. 
  • Tenure was established at institutions of higher learning to safeguard a faculty member’s right to academic freedom. This is essential to those who teach and conduct research, especially at R1 universities such as the University of Hawai‘i at Mānoa. Tenure provides the essential conditions and optimal environment for faculty to educate students, to pursue research and innovation, and to draw upon evidence-based conclusions that are free from undue political interference or corporate pressure.
  • Granting tenure to a University of Hawai‘i faculty member is at least a five-year process that involves a great deal of rigor and peer review. By contrast, civil service positions in the State enjoy security after a six-month probationary period. Other UH positions (Unit 8 APT employees) have “employment security” after three years in a permanent position.  
  • All other peer institutions of higher education that grant tenure can terminate a faculty member for cause, substandard performance, or for extraordinary circumstances like fiscal exigency or program discontinuation. The University of Hawai‘i is no different. These managerial rights to terminate faculty under those conditions are clearly outlined and defined in the UHPA/BOR Unit 7 Agreement. Faculty understand the granting of tenure places a far greater burden and responsibility on them to maintain high standards of research and instruction, both inside and outside of the classroom, and know they are setting an example for junior faculty who are striving to obtain tenure.

The key for any successful university is to have its Regents create and enact policies that will better assist the university’s administration in cultivating and fostering a learning environment where faculty can thrive, innovate, create, and transfer knowledge and information for students and to benefit the broader community. Regents must operate at a high level, focusing on policies to facilitate a positive environment for higher learning, and then step out of the way to let the faculty do what they do best as experts in their fields.

Cultivating respectful conversations among the University of Hawai‘i administration, University of Hawaii Professional Assembly and faculty have proven to be the best approach to advancing the mission of the University of Hawai‘i. Students must remain the focus. Over the past year and a half, faculty have shown they are adaptable, flexible, and collaborative and this has been key to the University of Hawai‘i delivering more 17,000 diplomas, degrees, and certificates to students in the midst of this pandemic.

We can, and must do better, for students, faculty and the University of Hawai‘i system. 

Mahalo, 

Christian Fern

Executive Director

University of Hawaii Professional Assembly

Mandates Subject to Collective Bargaining

Mandates Must Abide With Collective Bargaining Protocols

Any requirement imposed on University of Hawai‘i faculty as a new term or condition of continued employment must be freely discussed and jointly agreed to by the parties before the impact of these requirements can be enforced. This is the recognized standard established via the collective bargaining process to promote harmonious and cooperative relations between government and its employees and to protect the public by assuring effective and orderly operations. 

The UHPA believes this statutory requirement applies to this situation over the mandate to require faculty to be fully vaccinated to continue their employment at the University of Hawai‘i system and the 10 campuses statewide.

We Recognize The Importance of Vaccination

There is no doubt COVID-19 vaccinations play an important role in preventing the transmission of the disease and keeping down the number of cases in our state. The Centers for Disease Control and Prevention has said those who are fully vaccinated have less chances for severe illness if they contract COVID-19 and this minimizes the need for hospitalizations.

The benefits of the vaccinations, notwithstanding, is important to the parties to adhere to the collective bargaining process.

Courts Are Approving Reasonable Mandates

UHPA does recognize that while this issue is relatively new, there have been significant and impactful recent decisions made by other universities and other public and private organizations to mandate vaccination of students and employees.  These recent mandates have been challenged and approved by the courts and the Federal Equal Employment Opportunity Commission (EEOC) where employers can require all employees who physically enter the workplace to be fully vaccinated for COVID-19, so long as employers comply with reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.

UHPA Has Worked Well With UH Admin and This Practice Should Continue

UHPA and faculty look forward to engaging in productive and meaningful discussions with the UH administration to explore ways to ensure UH students and faculty have a safe learning environment while also upholding the collective bargaining process.

Throughout the pandemic, UHPA and UH administration have had a productive relationship based on mutual trust and respect. We are confident we will be able to resolve any potential vaccination mandate together through joint decision-making.

Contract Successor Agreement Terms Published

2021-2023 Unit 7 Successor Agreement Negotiated Changes Published

The approved changes to the Unit 7 successor agreement and the terms agreed upon by the parties that will be incorporated into the 2021-2023 Unit 7 UHPA/BOR Agreement can be found on the UHPA website on the 2021-2023 Tentative Agreement page.

Contract Printing of Full Agreement Underway

UHPA, UH, and the Governor are now in the process of finalizing the changes to produce a formally executed successor agreement in full. Once the changes have been reviewed and memorialized in draft form, the parties will take a final review and will need to mutually approve the changes for printing. The parties are hopeful that this review and approval process will occur shortly. Until the 2021-2023 Unit 7 UHPA/BOR Agreement is printed and distributed, please continue to reference the UHPA website contract section

Legislature Funds UHPA Ratified Contract

We are pleased to inform you that the Legislature has approved and appropriately funded our recently ratified (with a 95% approval) successor agreement (2021-2023), including the negotiated increases to the EUTF.   You can download a PDF for details of the negotiated increases and the updated premium rates as you make your decisions for what plans best suit you during this open enrollment period. 

Download the PDFs of EUTF Rates contributions

 

What would your premiums be “IF” the contract wasn’t ratified?

 

Approved! Faculty Ratify the Tentative Agreement

The University of Hawaii Professional Assembly (UHPA) faculty overwhelmingly voted in favor of ratifying a successor contract that will keep salaries and healthcare premium contributions level over the next two years.

The numbers

Out of a total of 1,273 votes that were cast, 1,216 votes approved the provisions in the tentative agreement, which represents 95.5% of the votes. The final votes from faculty members were submitted and tallied today at 5 pm.

We took on unprecedented challenges

At any other time, a contract that offers no increase to account for inflation would have met with resistance and be outright rejected. However, our faculty, who have been on the frontlines of the pandemic since last year, know these are extraordinary and unprecedented times.Based on the voting results and feedback from many of you, it is clear faculty understand the challenges facing our state and have expressed appreciation for the stability this successor contract offers.

But that didn’t stop us

Without a doubt, the pandemic created a very challenging year. Faculty across all the 10 campuses rapidly mobilized and reinvented the way higher education is delivered, shifting from classroom instruction to an online learning environment in one week. As a result, the University of Hawai‘i proudly awarded nearly 10,850 degrees and certificates to deserving students last year.And we discovered a new way to get things done

This accomplishment was no easy feat.

It required being flexible, adaptable, and a commitment to work closely with the UH administration. If there is a silver lining to the pandemic, it was that we re-discovered how joint-decision making enabled us to effectively move forward together. This model of collaboration, engagement, and dialogue served as the foundation for our contract negotiations. Instead of contentious debate, we focused on finding solutions to maintain faculty retention and ensured the ongoing quality of instruction and research at the University of Hawai‘i.

But not without stress and drama

Unfortunately, in the midst of the pandemic, there were days and weeks punctuated with stress and anxiety over proposed pay cuts and mandated furloughs. Faculty longed for more straightforward communication based on mutual respect, but often learned the potential status of their jobs during news conferences at the same time as everyone else. It was unsettling to watch events unfold to balance the state’s budget without knowing all of the details.

We’re confident about facing tomorrow’s challenges

All of that seems like a distant memory.  Nevertheless, we have emerged wiser and more prepared for the future together in solidarity. The contract we have today is a vote of confidence that faculty will play a critical role in the state’s economic recovery and that University of Hawai‘i continues to be a major economic engine for the state.

Imua!

Let’s move forward as we continue to uphold our commitment to teaching, research and community service — all of the pillars that make the University of Hawai‘i a great institution of higher learning.

UHPA Defends Tenure at the Legislature

Legislative Bill to Eliminate Academic Tenure for Non-Instructional Faculty Thwarted 


A legislative bill that would have adversely impacted the quality of education at the University of Hawai‘i — and affect the ability to attract and retain high quality faculty — has been put on hold. UH faculty can now breathe a sigh of relief — for now.

SB 1328 proposed to eliminate academic tenure for all “non-instructional” faculty based on the premise that their primary duties and responsibilities do not involve instruction with a commitment to student achievement and success and that granting tenure for these positions requires a long-term commitment of public resources.

UHPA Requested to Prepare a Resolution on Academic Tenure

Over the past several weeks, the UHPA leadership has been engaged in a series of productive and respectful dialogue and conversations with Sen. Donna Mercado Kim, the Chair of the Senate Higher Education Committee.  Based on UHPA recommendations, at a committee hearing last Tuesday, Feb. 16,  Sen. Mercado Kim deferred the bill and sought UHPA’s assistance to draft a resolution for the 2022 legislative session. UHPA plans to work collaboratively with the UH administration to develop a resolution for the committee to consider.

In its testimony, UHPA noted tenure for eligible faculty has been clearly outlined in collective bargaining agreements between UHPA and the UH Board of Regents since its first contract in 1975 and the subject of tenure is a cornerstone of bargainable matters under Hawaii’s collective bargaining law, Chapter 89, Hawaii Revised Statutes.

All of the other testimonies from both tenured and non-tenured faculty alike strongly opposed the bill including the University of Hawai‘i administration.

Dynamic, Multi-faceted Role of Faculty

Faculty also presented strong, compelling, and eye-opening rationale and reasons opposing the bill. Currently, Faculty are divided into different classifications based on their primary functions and some are classified with an “I” designation for “instruction.” However, these designations do not adequately and accurately convey the multi-faceted roles of faculty. Even if faculty are branded as “R” for “researcher” or “S” for “specialist,” they are still actively engaged in the instruction and provide a wealth of services and support functions focused on student achievement and success. This underscores that designations assigned to faculty do not truly reflect the diverse professional roles, responsibilities, and work they perform for the academy and the students that they serve.   

For example, research faculty mentors graduate students in the field or in laboratories, and specialists develop lesson plans, mix lectures with activities, discussion, and practice and work with distressed students or those with disabilities to insure their success. In this sense, all faculty are involved with instruction and significantly contribute to student achievement and success.

Miriam Stark, a UH anthropology professor, cited the significant contributions of faculty at the UH Cancer Research Center, UH Economic Research Organization, Water Resources Research Center and College of Tropical Agriculture and Human Resources that do not fit neatly into the definition of instructional faculty but overall contribute to student achievement and success.

Faculty also noted their roles are dynamic and ever changing to accommodate the needs and priorities of the university.  This makes the amount of instruction and service to student achievement and success fluid.

Purpose of Tenure

It’s important to reiterate the purpose of tenure: academic freedom for faculty. This is just as important for faculty members engaged in research as it is for an instructional faculty member. For example, tenure ensures faculty can engage in controversial research and instruction with impunity.

Another Potentially Overreaching Bill

In addition to the bill on academic tenure, the Senate Higher Education Committee also heard another bill (SB 1394), which would require that 25% of the UH research faculty’s salary be paid with extramural funds. The bill proposed to make it a requirement for all new grants,

contracts, and agreements that begin on July l, 2021, would have to stipulate that these extramural funds would be used to pay for the research faculty’s salary.

The intent of this bill was also a way to address the state’s budget, but UHPA pointed out that in the aggregate, extramural funding sources already make up more than 25% of the research faculty salaries. This bill was deferred and UHPA will collaborate with the UH administration to provide a report on this data.

Governor confirms furloughs on hold

On Friday Jan 15, 2021, UHPA received the attached PDF and we’ve excerpted the key message from the State’s Chief Negotiator Ryker Wada:

On December 29, 2020, Governor Ige sent a message to the entire Executive Branch notifying employees that due to the $900 Billion federal COVID-19 relief bill, there was enough direct support to programs in the State of Hawaii so that furloughs would be
delayed for Executive Branch employees until at least July 1, 2021.

I understand that President Lassner sent a similar message to the University employees on the same day.

This message confirms that Governor Ige intends to delay furloughs until at least July 1, 2021.

 

UHPA Sues Gov. Ige For Mandating Furloughs

The University of Hawai‘i Professional Assembly (UHPA), the union that represents about 3.500 faculty members across all 10 campuses of the University of Hawai‘i system, is taking legal action to block the governor’s plan to implement furloughs and a 9.23% reduction in pay.

The lawsuit, filed in federal court today against Gov. David Ige, State Comptroller Curt Otaguro, and University of Hawai‘i President David Lassner, seeks a declaratory and prospective injunctive relief from the furloughs going into effect Jan. 1, 2021, as mandated by the governor.

“Over the past several months, we have repeatedly pointed out that furloughs are unconstitutional and a violation of our existing contract, which remains in force until June 30, 2021,” said Christian Fern, UHPA’s executive director. “Since we have not had the benefit of a discussion to explore alternative solutions to the state’s budget deficit with the governor and his administration, we are resorting to legal action to challenge the governor’s legal right to override our contract terms, including his justification to use emergency proclamations to issue his edict on furloughs.”

UHPA has a successful track record of prevailing in similar situations violating employment contracts. In 1998, UHPA sued Gov. Ben Cayetano when the State enacted a law to change pay dates that were protected by an existing UHPA contract. The federal courts, both locally and on appeal at the Ninth Circuit in San Francisco, agreed with UHPA. This prevented the law from being implemented and did not affect UH faculty for the duration of the contract.

“We are keenly aware of the congressional relief package earmarked for higher education and we hope this will avoid the need for furloughs during the remainder of the contract,” Fern said. “However, the governor has not shared how he plans to allocate these stimulus funds. Rather than wait and hope he will do the right thing, we feel compelled to take decisive action in the midst of the uncertainty created by the governor by filing this complaint.”

UHPA Stands Up Against Governor Ige’s Overreach

We are now heading into our tenth month of dealing with the health, safety, and economic effects COVD-19 has had on our state. It has been a difficult experience. It has upended and traumatically affected everyone. The pandemic has presented both health and economic crises that no one has been able to escape. The new virus has compelled us to think in new ways. We have all had to remain flexible and adaptable and open to new ideas as we venture outside the proverbial box.

During these unprecedented times, we need to rely on our government and our elected officials to help us navigate through this situation and eventually provide the pathway for recovery.  We recognize that Governor David Ige has broad powers to protect the health and safety of our citizens, especially during emergencies like COVID-19, but ordering overreaching and arbitrary decisions that have nothing to do with public safety will only exacerbate our situation and make our recovery much more difficult.

The Battle Begins: The Fight Against Furloughs is just the Beginning

There is no doubt that for Hawai‘i to return to a sense of normalcy, we must all do our part, including UH faculty. However, this will not be achieved by resorting to old ways that have proven to fail. That is why UHPA is strongly opposed to the failed past concepts of furloughs and is doing everything in its power to stop Gov. Ige’s ill-timed plan.

At the heart of this dispute lies our future and rights protected and guaranteed by the Hawaii State Constitutional under Article XIII, Section 2, which affords public employees the right to engage in collective bargaining. Gov. Ige’s unilateral implementation of furloughs imposed on Faculty members disregards and violates our current and active collective bargaining agreement that he agreed to for the duration of July 1, 2017 through June 30, 2021. 

Allowing such an overreach of political power would open the possibilities for Gov. Ige or any future Governor to unilaterally make possible changes to the Employees’ Retirement System protected under Article XVI, Section 2., assume power and control over the University of Hawai‘i under Article X, Section 6 through diminishing the authority of the Board of Regents, and possibly impact even our Bill of Rights under Article I. The negative consequences of allowing such overreach during emergencies by elected officials are endless and alarming.

UHPA recognizes that there will be difficult times ahead and hard decisions will need to be made, but the law requires the employer to obtain mutual consent from the union regarding wages, hours, working conditions, EUTF contributions, and other topics. Hawaii’s collective bargaining law requires engagement of its employees and mutual consent on mandatory subjects of bargaining such as furloughs, pay cuts, and retrenchment. Ultimately, UHPA membership must vote on these terms through ratification.

UHPA cannot and will not compromise our membership’s constitutional and statutory rights to decide their own personal fate and will not leave it up to Gov. Ige or any other elected official to decide for them.

Flashbacks from the Past

During Gov. Ige’s press conference announcing the furloughs, he said he consulted with Hawai‘i’s past governors, including Gov. Linda Lingle. That raised a red flag and rankled many in the community. Under her leadership, she initiated “Furlough Fridays,” which impacted Hawai‘i’s keiki and their parents. Her furlough plan also curtailed essential services that stalled our state’s recovery efforts during the Great Recession. Many valuable programs were decimated back in 2009, but the effects of those decisions are still being felt today, nearly a decade later.

As some may recall, under the Lingle administration, furloughs were just the beginning of her attempt to downsize government. In a punitive fashion, layoffs and budget cuts soon followed. Gov. Ige seems to be following the same playbook, already alluding to the need to look at layoffs.  We should forget the naïve notion that UH faculty should be willing to do our part by rolling over and accepting furloughs as the solution to our state’s budget challenges.  In addition, neither Gov. Ige nor the UH has ever figured out how to impose a furlough plan on Faculty without it just becoming a straight pay cut due to how unique the work Faculty members perform.

Do the Math

According to Gov. Ige, our state is projected to have a $1.4 billion shortfall over each of the next four years. Gov. Ige stated that the furloughs would contribute $300 million each year to be used to pay back a $750 million dollar loan for money he borrowed.  Gov Ige plans to keep the furloughs on-going for the next four (4) years which will eventually make public employees contribute an additional $450 million during this time frame.

Secondly, it’s obvious furloughs alone will not fix the problem. What will be next? The worst is yet to come and the battle is just beginning. Furloughs open the door to more edicts that violate our rights protected by the collective bargaining process and our state constitution. As history has shown, give governors an inch, and they will take a mile —wielding their emergency powers as they see fit.

Collaboration is Key

Taking legal action against the governor is not our preference; however, UHPA as well as the other public-sector unions need to stop his furlough plans based on the reasons cited above. We believe it’s time for everyone to work together and think strategically to move forward.

Throughout the pandemic, the need to collaborate and get through this together has emerged as the new mantra. Unfortunately, we don’t see Gov. Ige leading by example. Instead of developing innovative solutions, we instead see Gov. Ige reverting back to past actions that have been proven to fail.

Governor created chaos and confusion with furlough roll-out (joint statement)

One day after Gov. David Ige announced plans to furlough tens of thousands of employees in his state workforce, details are emerging showing the so-called plan actually isn’t one.

The Hawaii Government Employees Association (HGEA), the Hawaii State Teachers Association (HSTA), the University of Hawaii Professional Assembly (UHPA), and the United Public Workers (UPW) have learned that each state department director has been given a very short window to determine which employees to furlough and/or if an exemption should be sought with no guidance or parameters. Union leaders are hearing reports of confusion among top department heads about how they are supposed to roll out the furloughs. Additionally union leaders have been told that each department may be directed to implement furloughs independently from the other departments.

It’s downright scary that these are the people who are leading the economic recovery and essential services that affect the health and functioning of our state. The Ige administration should halt this ridiculous plan now before more damage is done to the workers, public services and Hawaii’s economy.

Yesterday, Ige announced in his news conference that 24/7 operations, first responders and public safety employees would be exempt from furloughs. He also exempted federally funded positions and departments that generate their own revenue such as the Hawaii Department of Transportation (Airports, Highways and Harbors Divisions) and the Department of Commerce and Consumer Affairs.

Many state departments either receive federal funds or generate revenue which may make them eligible to opt their employees out of the furlough.

In another contradiction to his public statement on furloughs, state sheriffs and conservation resource officers are NOT on the furlough exemption list even though they are first responders and have law enforcement powers.

While Ige said Wednesday Schools Superintendent Christina Kishimoto would release furlough plans for educators, Kishimoto emailed a message to all Department of Education employees the same day that said, in part, “The governor’s Office of Collective Bargaining is the lead on these active negotiations; therefore, we do not have details of the specific impact to HIDOE employees at this time.”

All four unions have valid contracts in place and none of the unions have agreed to furloughs.

Announcing a drastic nearly 10% pay cut to workers though a furlough will hobble a key pillar of Hawaii’s economic engine—government workers—when economic recovery is so critical.

HGEA, HSTA, UPW, and UHPA collectively call on the governor to halt this ill-timed, poorly planned furlough implementation and to respect the contracts of tens of thousands of his dedicated employees.