Here We Go Again On Tenure Battles

“Those that fail to learn from history are doomed to repeat it.”
— Winston Churchill

Permitted Interaction Group (PIG) or Wild Pig

On Friday, September 10, 2021, the University of Hawai‘i Board of Regents posted their agenda and meeting materials for the September 16, 2021 meeting.  Included on the agenda was the report of the Tenure PIG.  Based on the February 18, 2021 BOR meeting, the Tenure PIGʻs purpose and scope was to review and investigate the issue of tenure in areas including the history and purpose of tenure at IHEs, particularly regarding the University of Hawai‘i (UH); the evolution of, and current views and developments on, tenure at institutions outside of UH; and the current process, criteria, and decision making on tenure at UH.  We question Tenure PIG Chair Ben Kudo whether the report submitted by the Tenure PIG meets the purpose and scope of its original intention.  Nevertheless, the following is UHPAʻs critique of the proposed changes to UH Regents Policy RP 9.213.

Destroying the basic tenets of tenure and academic freedom

On October 16, 1981, almost 40 years ago, the University of Hawai‘i Board of Regents unilaterally adopted a policy entitled, Evaluation of Board of Regents Appointees, otherwise known today as RP 9.213, Evaluation of Board or Regents Appointees. This caused the UHPA to file a prohibited practice complaint (PPC) with Hawaii Labor Relations Board (HLRB) alleging violation of Chapter 89, HRS, more specifically subsections §89-13 (a)(1), (2), (3), (5), and (8).  UHPA challenged the policy on the basis that it implemented a post-tenure review system, which, in effect, modified or eliminated the tenure rights of faculty members as set forth in the Unit 7 agreement that former UHPA Executive Director JN Musto proclaimed as “…aimed at destroying the basic tenets of tenure and academic freedom.”

Disguised as an assessment tool and not a rating instrument

The UH President at that time, Dr. Fujio Matsuda, stated that the policy would allow the administration to:

  1. Provide assurances to the University and its constituents that professional staff resources and particular areas of expertise are being used to the best advantage;
  2. Provide for the systematic recognition of excellence and develop incentives for superior performance, and
  3. Provide means for the improvement of performance in furtherance of the Universityʻs mission.

Dr. Matsuda also proclaimed that the proposed policy would not be a rating instrument per se, but an assessment tool to indicate strengths and weaknesses in an employeeʻs work. However, HLRB did not buy this argument. 

HLRB rules faculty evaluations are negotiable

HLRB Decision 199 specifically noted that “While we agree with the BOR that it may implement its evaluation procedures, we are not convinced that the impact of an “unsatisfactory” rating in and of itself would not affect working conditions to a degree so as to constitute a negotiable matter.” 

UH was required to negotiate with UHPA over the implementation of its desired five-year evaluation policy.  During the negotiations process, UHPA maintained its original position that while it did not disagree with the administration’s right to discipline tenured faculty members or to remove faculty members if they fail to perform their duties, the burden to show such failure solely rests with the administration and that other faculty peers should not be involved in the review process.  Furthermore, that it should not be considered a tenure review process or a reapplication of tenure since there should be an automatic presumption that a faculty member has met all the duties, responsibilities, requirements, and performance of a tenured faculty.

The UH administration and the UHPA essentially agreed a tenured faculty memberʻs five-year review will be an evaluation between the tenured faculty member and the respective Department Chair.  If itʻs deemed “satisfactory” by the Department Chair, a memo is sent to the Dean/Director for filing.  If itʻs deemed “unsatisfactory” by the Department Chair, the Department Chair and the tenured faculty member would develop a Performance Development Plan (PDP) that is then given to the Dean/Director.  In most situations, the PDP satisfactorily resolves the Department Chairs concerns and thereafter a memo is sent to the Dean/Director for filing.  In those unusual situations in which the PDP is unsuccessful, a memo is sent to the Dean/Director by the Chair depicting that the PDP hasnʻt met its desired outcome in addressing the tenured Faculty memberʻs performance concerns.  Thereafter, the five-year review process is closed and management can begin the process under the Unit 7 Agreement to begin taking appropriate administrative actions, including termination of a tenured faculty memberʻs appointment, for failure to meet the performance requirements of the position.

The five-year review has worked just fine

For the past 40 years, the five-year review under RP 9.213, Evaluation of Board or Regents Appointees has met its desired purpose and intent.  It provided the avenue that Dr. Matsuda was seeking through the negotiated process between the UH administration and UHPA.  

History will attempt to repeat itself

While every single historical moment is distinctly different from the past, if we do not learn from our mistakes, we risk the chances of repeating it.  Four decades later, we have a different political, social, and leadership climate.  Unfortunately, there are a few individuals interested in revisiting RP 9.213, Evaluation of Board or Regents Appointees to again bring into the conversation the ability for management to use it as a rating tool and to take disciplinary action against those tenured faculty members who they believe are not meeting the performance requirements of the position.  UHPA believes that this is an unnecessary and ill-advised tactic since we have already gone down this road and have already developed a pathway forward for the UH administration to follow.  Whether this is being driven by undue political interference, lack of knowledge or understanding, or just pure hubris, it is definitely a path that will only lead to confusion and uncertainty.  There is already a system in place that was developed through negotiations between the UH administration and UHPA that has worked for over four decades.  Is all this necessary?

Regent Jan Sullivan Attacks Academic Freedom

Academic Tenure is Essential to Preserving Academic Freedom

Freezing Tenure? Faculty Must Keep Their Guard Up in Contract Negotiations

With the current contract between the University of Hawai‘i and the UHPA Faculty coming to a close at the end of June 2021, negotiations for a successor agreement are continuing. During this economically challenging time, we should brace ourselves for difficult negotiations, with Employer proposals that seek to threaten the very core of academic life.

The UH Board of Regents meeting held on Thursday, Jan. 7, may be an indication of what’s in store for the future — unless UHPA Faculty members remain vigilant and take proactive measures to intervene.

In a discussion of the actions UH has undertaken to address the state’s budget deficit, University of Hawai‘i Regent Jan Naoe Sullivan said “freezing tenure” should be considered. She told UH President David Lassner that she believes the collective bargaining agreement has been a hindrance in the past and that the current economic climate presented an opportunity to introduce the concept of suspension of tenure that she proclaimed other universities have followed. (Sullivan has brought up similar challenges to the concept of tenure several years back, but that proposal was justifiably shot down.)

A Brazen Attack – Biting The Hand That Powers Your Company

This ongoing, brazen attack on the fundamental principle of academic life was being live streamed statewide and immediately set off a flurry of text and email messages among UH Faculty. Some Faculty were aghast that Sullivan, chief operating officer of Oceanit — which relies heavily on the UH for research to further her company’s business interests — apparently does not understand, recognize nor appreciate the value of a university system. We can only speculate why Sullivan seems hell-bent on insisting tenure be frozen before her term as a Regent ends this year and Gov. David Ige appoints a successor to her seat.

A Lone Voice

Fortunately, there were strong indications Sullivan was once again a lone voice, an outlier among the Board of Regents on this issue. UH BOR Chair Ben Kudo, attempting to appeal to her legal mind, delicately reasoned with her that tenure can only be questioned if a faculty member commits acts that violate the law or contract. Lassner suavely appeared to acquiesce, pointing out tenure suspensions have only been applied at small, private colleges, but also disturbingly suggested perhaps a “targeted” approach to tenure suspensions at the UH. The other Regents remained noticeably silent, perhaps because they understand, recognize, and appreciate the value of tenure and did not wish to embarrass her or themselves.

Let’s work with, not against each other

We hope these kinds of theatrics in the public eye do not represent the sentiment of the entire Board of Regents. Drama like this has no place in negotiations at a time when the state’s dire situation requires all us to work together — rather than against each other. These ill-conceived notions breed distrust and suspicion. They become distractions to moving us forward to meaningful and respectful discussions. We can and must do better when each of us at the table shares the same goals and aspirations for the University of Hawai‘i and appreciates how much higher education and research contribute to our community and our State.

 

 

Image credit:

DRAWING OF PEOPLE WHO CUT DOWN THE BRANCH ON WHICH THEY SIT is licensed under CC BY-NC-ND 4.0. Image has been resized or cropped from original along with minor text changes.

Agreement reached over Covid-19 impacts on promotion, tenure and renewal.

Agreement reached with President and Governor over Covid-19 impacts on promotion, tenure and contract renewal 

Last week the University of Hawaii Professional Assembly (UHPA) finalized a Memorandum of Understanding (MOU) with President David Lassner and Governor David Ige on addressing the possible negative consequences and impacts the unanticipated switch to on-line instruction due to COVID-19 may have on tenure, promotion, and contract renewal.  

Agreement result of combined efforts

These concerns were raised by UHPA Faculty Members who are serving on Temporary Work Group which was a combined effort of the UHPA and UH Administrators to discuss health and safety issues, as well as making sure Faculty Members received the required support, services, resources, etc. to help with the transition to on-line instruction and other conditions as they have arised.  The Faculty Members recognized how adverse and negative the Spring 2020 semester could have in the areas of tenure, promotion, and contract renewal processes which are based on face-to-face evaluations, peer evaluations, student evaluations, application deadlines, research endeavors, and other related measures.  

Exemplary decision making via the collective bargaining process

“The Temporary Work Group epitomizes the intent of Hawaii’s collective bargaining law, by providing for joint decision-making; having employees granted a right to share in the decision-making process; and having a venue to exchange ideas and information with administrators to help the government become more effective and responsive in these unprecedented times.”  Christian Fern, UHPA Executive Director

Highlights of the MOU

  1. Faculty Members employed during the Spring 2020 semester may elect to extend their probationary period for an additional year, but not to exceed eight (8) years;
  2. Faculty Members expected to undergo contract renewal in the Fall 2020 semester may elect to extend their contact and postpone their contract renewal by one year; and
  3. Faculty Members or Lecturers holding multi-year limited term contracts in Spring 2020 who are up for contract renewal and who are not being paid via extramural funds will be extended for one (1) additional year.

The temporary work group consists of Faculty Members and UH Administrators and has continued to meet on a weekly basis since Spring Break.  

 

UHPA Prevails in Obtaining Revised Contract Renewal Letters for Probationary Faculty

UHPA filed a class grievance regarding the failure to properly inform probationary faculty of the contract renewal recommendations by the DPC and Department/Division chair by December 20, 2018 as provided by the collective bargaining agreement. This information can be critical to any faculty member who may be subject to non-renewal or has performance deficits that may raise concerns with a Dean or Vice Chancellor. The December date enables a probationary faculty member to determine what options may guide their future employment and ability to remain at the University of Hawaii.

Such defects in the process will be corrected for the 2019-2020 academic year. As a remedy
Faculty members who were improperly denied a contract renewal will be awarded a contract renewal. Faculty members who were renewed and received improper letters will be sent corrected letters which affirm their contract renewals.

UH President Now Grants Tenure and Promotion

The UH Board of Regents amended RP 9.201 to give authority to the UH President to grant Tenure and Promotion.  In the past it was the responsibility of the Board of Regents.

New Faculty Rights! Your Letter of Hire Enforceable through the Collective Bargaining Agreement

On January 24, 2017 UHPA and UH concluded a Memorandum of Understanding on Letters of Hire. This was 16 months in the making and provides that items that are bargainable contained within a letter of hire can be enforced through the grievance procedure, including arbitration.

Key Provisions

  • All Unit 7 members must receive a written letter of hire.
  • Letters of Hire shall contain all terms and conditions of employment offered and accepted by the faculty member. No undocumented promise is enforceable.
  • All documents relating to the terms of hire shall be provided and attached to the letter of hire.
  • UHPA shall receive all letters of hire and may grieve violations of the collective bargaining agreement.
  • UH must consult with UHPA on hiring policies and procedures.

Implementation

  • UHPA and the UH administration will be discussing templates that create clarity and consistency in letters of hire based on the respective campus needs. UH Manoa, due to the number of hires and complexity of issues, will be reviewed first.
  • As faculty members are engaged in hiring committees the collective bargaining agreement and the MOU on Letters of Hire should be given to potential new employees.

Always contact UHPA if you ever have questions or issues with your Letter of Hire.

Letters of Hire Actually Mean Something Now and the Promise of an MRI is Achieved

Dr. Bennett wins!

Dr. Kevin Bennett, whose fight to enforce his letter of hire included a grievance, an HLRB case, an agency appeal to Circuit Court, and the possibility of a new lawsuit in Circuit Court, has resulted in a robust settlement. The University will provide the MRI System and a functional laboratory that will allow the Dr. Bennett to continue his research and expand that which can occur in Hawaii.

Dispute over Letter of Hire promises

Dr. Bennetts was recruited to the University of Hawaii due to his work on early diagnosis of kidney disorders and his ability to establish and operate an MRI center that would enhance the work of other faculty members and allow his research to expand. Arriving in 2013 and believing that the University would provide the necessary equipment and support as agreed to in a letter of hire, Dr. Bennett proceeded to work toward the procurement of the MRI. While there were problems obtaining the original equipment, an alternative MRI was identified and the procurement process was proceeding. In Fall 2015, Dr.Bennett was informed by the Interim Dean of Natural Science that the equipment would not be purchased. The University contended that the letter of hire was not binding and could be unilaterally altered.

Dispute resolved by Dr. Bennett’s resolve

On January 24, a settlement was reached between Dr. Bennett, the University, and UHPA that ends the dispute and results in the necessary support for Dr. Bennett in advancing his work.

In addition to Dr. Bennett prevailing in his specific case, UHPA and UH have agreed to a Memorandum of Understanding on Letters of Hire. These two settlements could not have been achieved without the commitment of Dr. Bennett and the UHPA Board of Directors to hold firm in their convictions that the University must honor its commitments to faculty members.

UHPA Negotiates a Second Holiday for You

Finally a settlement regarding the 2016 dual holiday of Kuhio Day and Good Friday.

Faculty members (11 month) who accumulate vacation shall be granted an additional day of vacation leave.
All other faculty members who do not accumulate vacation( i.e. 9 month, 11 month, and faculty on “off-duty plan”) shall observe a second holiday that must be taken by December 31, 2016. There is a procedure for establishing a mutually agreed to day.  Please review the Memorandum of Understanding for details.

Manoa Faculty Senate says UH could break its written promises to you

The UH Manoa Faculty Senate has passed a resolution encouraging potential new faculty that they consult an attorney or UHPA before accepting a job offer. UH’s position that Letters of Hire may be unilaterally changed is of grave concern for all job applicants that may be interested in coming to any campus. The position taken by UH discourages the recruitment of new faculty.