Monday, November 7, 2011

Important Perspective on Faculty Participation in Determinations of Financial Exigency

Various remarks from our administration can leave one with the impression that there is no precedent for faculty participation in developing definitions of "financial exigency" and procedures for executing the difficult decisions that can stem from times of crisis. Whatever one might think of the current strike action, understanding the widely acknowledged importance of such participation is crucial in understanding our administration's claims.

In 2009 the American Council on Education issued a report entitled "Faculty in Times of Financial Distress: Examining Governance, Exigency, Layoffs, and Alternatives." Throughout the report, faculty participation in such decisions is described as crucial for the well-being of a university. While the entire report is compelling, the section specifically devoted to "Faculty Consultation in Times of Budget Crises" (which begins on page 16) should put to rest the claim that faculty have no interest in or historical right to participate in these important deliberations.

The report is available here.

47 comments:

  1. While I am no lover of our upper administration, I find this post to be disingenuous, to say the least. The argument is not over the right of the faculty to consultation; it is over whether the faculty have the right to BLOCK a declaration of FE through a unilateral veto, or, alternatively, through the right to compel the request for FE to be submitted to an external arbitrator.

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  2. 10:59--Despite assertions from the Administration and the occasional blog comment suggesting that, the FA has never argued for the right to block a declaration of financial exigency.

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  3. I would argue that the FA has, indeed, bargained for the right to block a declaration of financial exigency through its insistence upon outside arbitration if it disagrees with the administration decision to declare FE.

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  4. I don't think it's disingenuous in the least. The FA isn't interested in a unilateral veto, but rather a clearer definition with criteria that can be verified. It's also made a variety of proposals, outlined at the meeting last night, that are in keeping with the perspective of this report. I also think that something as grave as faculty layoffs warrant an external arbitrator if the definitions that lead to that determination are as circular as that offered by the BOT. I found the report useful.

    And actually there's much to love about our administration. I just don't think it's necessarily showing all the time in this particular issue.

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  5. The cases in Appendix B (beginning on page 26) in my perception show that historically, declaration of FE is a board prerogative. Although the report praises "shared governance" as an ideal, none of the suggested roles for faculty include the ability to veto an FE declaration--which is what the FA seems to want. Even referring the possibility of FE to outside review (say to a "disinterested" third party) would strip the board of that prerogative.

    Given the numbers in this SI article, I wonder how much "good will" there will be in the community toward the FA when this is all over.

    http://thesouthern.com/news/opinion/editorial/article_0af4f8d2-067e-11e1-a8ee-001cc4c002e0.html

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  6. Anonymous 11:12,

    Verified by who?

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  7. I think the association of "arbitration" with a veto represents a fundamental misunderstanding of the meaning of arbitration, which can produce a variety of results. Even the ACE report acknowledges that BOT's have the right to declare exigency, just not in a vacuum.

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  8. Do the comments in this thread verify my suspicions that many faculty have no idea what their union is demanding? That they don't know the issues? That the FA is selling it's membership a bill of goods?

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  9. Anonymous 11:30 said: "I think the association of "arbitration" with a veto represents a fundamental misunderstanding of the meaning of arbitration, which can produce a variety of results. Even the ACE report acknowledges that BOT's have the right to declare exigency, just not in a vacuum."

    While I would agree that arbitration can produce a variety of results, the point is that it places a third party in control of a declaration of FE. In other words, the FA is demanding that it be contractually permitted to remove the ability to declare FE from the BOT. This goes well beyond any precedent anywhere--at least on Planet Earth.

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  10. Yes, never on planet earth have executive or administrative decisions ever been reviewed or evaluated by an outside body.

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  11. Again, I am going to interject with a point of law. A collective bargaining agreement is executed with binding force under Illinois law. Board of Trustees policies are just that - Board policies. Should the Board representatives choose to bargain away a management right they can do so. Example: before the first FA contract tenure and promotion was as per Board policy. T&P was contractualized in the first CBA. The Board was compelled to alter their policies to account for what they bargained. That's the law. Any conflict between the two is resolved by the Board's actions in aproving the CBA. There's nothing special about a FE definition or related procedures unless they are superceded by Illinois statutes. To suggest otherwise is a canard.

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  12. I WOULD RATHER HAVE NO CONTRACT THAN A BAD CONTRACT. Bad contract would legalize layoffs by administration. FA bargaining team is doing exactly what they are supposed to do: negotiate a contract which is in the best interest our students and faculty.

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  13. Ryan - The FA proposal does not ask for review or evaluation. It asks for third party determination. There is a big difference.

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  14. The last contract had a no layoff side letter. So, the BOT gave up ALL its prerogative on this. Now people are arguing the BOT cannot possibly give up some of its power to an arbitrator. You may think giving the FA the right to ask for arbitration on FE is a good idea or a bad idea, but you cannot say it is an impossible idea.

    The NTT contract ha a no furlough clause. So, is that impossible?

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  15. Advisory CommissionNovember 7, 2011 at 1:00 PM

    "Various remarks from our administration can leave one with the impression that there is no precedent for faculty participation"

    Hello? Cheng and the BOT's current proposal includes faculty consultation AND then bargaining if there is to be layoff of FA unit faculty. What is wrong with that?

    The FA started out with this crazy four years of audits, then joint declaration (effective veto), now third party.

    Here's my proposal: FA leaders, please accept an advisory commission chosen by both sides but without binding recommendations. If the commission disagrees with the BOT you have a huge PR weapon and can claim "shame on you."

    That's about the best you can - and should - get.

    But why isn't any one talking about furloughs. I'm WAY more concerned about that quite real possibility. This FE talk goes on and on and on when the real threat is being furloughed by a thousand cuts.

    I'm a FA member but could my union please concern itself with preserving our salaries??!!

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  16. There is only a difference if one presumes that any real accountability to an external body amounts to a fundamental violation of executive authority. Review, without the possibility of a binding reversal, merely dresses impunity up in the borrowed leathers of accountability.

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  17. Faculty Member for Stronger Faculty SenateNovember 7, 2011 at 1:14 PM

    Read the chapter you suggested. I don't see any reference to a union having a voice in financial exigency decisions--in fact, it says that sometimes that decision must be made quickly and without input (but then decisions on how to deal with it come next with input).

    The document recommends a faculty budget committee: "The committee may operate as an arm of the faculty senate or, less often, report directly to senior administrators." Again, the committee gives voice to the faculty; it doesn't take the authority to appeal/grieve/etc.

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  18. A minority of the most privileged elite strikes to protect itself against the very unlikely prospect of being laid off. All NNTs would have to be laid off first. What it boils down to is the strike is about the ideology and power. Apparently some members of this elite are willing to forego substantial loss of income for to prove they should never feel the pain of the people who pay their salaries.

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  19. Mike wrote:

    "The last contract had a no layoff side letter. So, the BOT gave up ALL its prerogative on this. Now people are arguing the BOT cannot possibly give up some of its power to an arbitrator. You may think giving the FA the right to ask for arbitration on FE is a good idea or a bad idea, but you cannot say it is an impossible idea."

    A declaration of financial exigency affects the ENTIRE university, not just FA. The BOT could give us a no-layoff clause and still declare FE and make the cuts elsewhere.

    I wish the FA would focus on furloughs. I fear "death by a thousand cuts" more than FE.

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  20. Just a quick note of support to you all. While I am sad to see it come to a strike, I am proud that you all stood up, and are standing up to be counted. Way out here in SC you have more supporters than you realize. Keep fighting the good fight!
    Bob Jenkot class of '91, '97. & '05

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  21. anon@1:41 has hit the nail squarely on the head. No one, and I mean no one, has laid it all out in such clear, succinct terms until now.

    We should all offer our congrats to anon@1:41.

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  22. Ryan Netzley says "There is only a difference if one presumes that any real accountability to an external body amounts to a fundamental violation of executive authority. Review, without the possibility of a binding reversal, merely dresses impunity up in the borrowed leathers of accountability."

    In this case, the FA is clearly asking for a violation of the BOT's authority, aren't they? I'm not interested in arguing semantics with an English professor, but even the FA leaders have presented their argument as such.

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  23. "Mike said...

    The last contract had a no layoff side letter. So, the BOT gave up ALL its prerogative on this. Now people are arguing the BOT cannot possibly give up some of its power to an arbitrator. You may think giving the FA the right to ask for arbitration on FE is a good idea or a bad idea, but you cannot say it is an impossible idea.

    The NTT contract ha a no furlough clause. So, is that impossible?"

    You know, the no-layoff clause in the last contract gets raised as if the fact that it could be done then makes it a realistic option now. I think there is a very important thing to keep in mind here, though: as many have noted on other threads, this was an act of politics by a newly-appointed President trying to buy cooperation. It was also part of a pervasive attitude in Illinois that was exemplified by the state government's belief that it could just indefinitely postpone contributing to our retirement funds--that they would be able to make up the deficits "once things are better. Do we really want to endorse that kind of decision-making just because it happens to benefit us in this case?

    Also, I believe that the NTT no-layoff and no-furlough side letter is for this year only--and I am guessing that the FA could probably negotiate that much for us as well. This is made more complicated, too, by the issue of notice: the NTT faculty are not entitled to anything like the kind of notice tenured and TT faculty are supposed to get.

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  24. Jon Bean raises an excellent point. The FA cannot negotiate the terms and conditions of employment for anyone it does not represent. Why should the BOT negotiate ANY aspect of a declaration of FE with the FA when FE affects employees not represented by the FA?

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  25. Anonymous 1:41 said...

    "All NNTs would have to be laid off first."

    Why would you think that? The NTTs have a separate collective bargaining agreement with the University with new stronger RIF language. T/TT faculty enjoy no special status or job grantee in relation to the NTT bargaining unit.

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  26. I'm shocked to discover that when one imagines authority as nothing more than the ability to act with impunity, any review is clearly a violation of executive authority. But that's not an argument about semantics. It's an argument about slavishness.

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  27. Again Ryan Netzley - if the FA wanted review, the BOT would likely agree. They want to determine if FE exists and the BOT can't give them that.

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  28. I have no problem with the current board positions regarding FE and RIF in regards to FE. Some have raised the notion that on a dark day the Board would declare (false) FE and use it as an excuse to fire select tenured faculty it does not like (as if they had pictures of such faculty on walls that they throw darts at over drinks, biding their time until the perfect moment to strike comes—not sure we are so important in their thinking!). I don’t think such a broad-brush approach could be used this way in any case.

    At least, to me much greater risk for faculty termination lies in existing contract language (i.e., what the FA agreed to in the last contract): termination of programs. This is much more focused, and far less hypothetical than some may realize.

    For example, in Texas, I believe 7 colleges and universities have been told that they will lose their physics programs, and a number of others (including Texas Tech, arguably the closest thing SIUC has to a twin institution) have been put on notice.

    Now that our state legislature has been working to implement performance factors in university funding, there are metrics being drawn up that determine how ‘good’ (my word choice) a given unit is at a given school; metrics will likely include numbers of majors, credit hours, costs, and the like. I’m not saying this is a necessarily bad thing (why shouldn’t tax payers expect that the universities that they are funding be as efficient as possible with their dollars?)—I’m just saying, I bet it is a lot more likely we (or other schools) would see faculty losses from this mechanism than a declaration of FE (false or otherwise).

    Lastly, I really fear that the strike will not end soon, at least if the FA holds to its positions. I think the leadership may have talked themselves into a corner, and will need to show “results” from the strike that will make it seem worthwhile. But the board is unlikely to give up its power to determine/call FE, and tying raises to “total revenues” is a bad idea (explained well elsewhere) that the board is unlikely to agree to in any case.

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  29. Don't know why people saying that tying raises to revenue can't be done, since the Administration just agreed to such an approach with the NTT and Civil Service unions.

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  30. Oh yes, necessity, the tyrant's plea. Got it. The BOT is so constrained by the determinations of necessity that it cannot choose to do otherwise than it does and, simultaneously, is an entity whose decisions are without substantive check because of its essential autonomy.

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  31. All, but especially related to Jonathan Bean's comment. I asked this question yesterday, and no one addressed it, so I ask it again:

    Regarding Financial Exigency:

    Can someone tell me what would stop the Board from retaining whatever it wants for its policy for what would prompt a declaration of financial exigency and for the contract to have it's own, separate criteria for what would be necessary for tenured and tenure-track faculty to be laid off?

    I think that would satisfy the "Board Right" to declare it whenever it finds it necessary while still satisfying the "Collective Bargaining Right" to negotiate the terms and conditions of employment.

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  32. paranoid wrote:

    "Can someone tell me what would stop the Board from retaining whatever it wants for its policy for what would prompt a declaration of financial exigency and for the contract to have it's own, separate criteria for what would be necessary for tenured and tenure-track faculty to be laid off?"

    Well, yes, I think that is being negotiated right now! BOT keeps FE and has separate criteria (as in past) for layoff procedures. (Last time there were no layoffs but contracts usually have an order to be follow). The current BOT proposal, as I recall, says untenured laid off first, then tenured. If FA wants something more detailed, then fine. But FE is a deal breaker.

    Basically I'm agreeing with paranoid and hoping that the FA negotiates the layoff procedures. And did any one notice that the BOT proposal upped from 30 days to one academic terms beyond the current one and now to a full year if FA accepts their proposal?

    PS: I'm on jury duty starting tomorrow so if I don't respond to any responses, it is because I am in Courtroom 3!

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  33. Chancellor just said on WSIL live that a full proposal addressing all of the FA demands has been delivered to the FA. Keeping fingers crossed.

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  34. In the infamous case of the prior layoffs (1973?), it is my understanding that the decisions were reversed in court. Why is it different to have an arbitrator make the decision than have a court make the decision--by contract one can choose arbitration over a court. In either case an outside authority is a check on the Board acting arbitrarily and declaring financial exigency when it does not exist. The AAUP guidelines give a faculty member removed due to financial exigency the right to a hearing before a faculty committee in which the faculty member can challenge the finding of financial exigency--and the university has the burden of showing that financial exigency really exists. As I see it, the difference in what is being proposed by the FA and the AAUP procedure is that the FA asks to arbitrate the declaration as a whole, not in the context of an individual faculty member who is laid off. From the AAUP guidelines:


    A faculty member whose position is identified for termination should be afforded an adjudicative hearing of record before a duly constituted faculty committee in which the following three issues may be contested:

    1.“The existence and extent of the condition of financial exigency,” with the burden of proof upon the administration.
    2.“The validity of the educational judgments and the criteria for identification for termination,” with the proviso that any faculty judgments in these matters are presumed valid.
    3.“Whether the criteria [for termination] are properly applied in the individual case” (Recommended Institutional Regulations 4c).

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  35. The AAUP also gives faculty a role in declaring financial exignecy:
    3. What is the AAUP’s definition of financial exigency?

    “An imminent financial crisis that threatens the survival of the institution as a whole and that cannot be alleviated by less drastic means” than the termination of tenured faculty appointments (Recommended Institutional Regulations 4c).

    4. What should be the faculty’s role in determining whether a condition of financial exigency exists?

    A duly constituted faculty body should participate in reaching the determination that a condition of financial exigency exists or is about to exist and that all feasible alternatives to terminating appointments have been exhausted. The faculty should also play a primary role in determining, based on educational considerations, where appointments will be terminated and in developing the criteria for identifying whose appointments will be terminated (Recommended Institutional Regulations 4c

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  36. The Chancellor is a liar and we can believe nothing that she says. In view of that fact, it is now very important we have an outside body in to determine whether a FE is really necessary rather than an excuse to build a new sports stadium or give more money to Rita's outside contacts. In fact, isn't it time the Treasury Department came down here to review SIUC's records? As an accountant, surely Rita should not object to an outside body reviewing the books?

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  37. Your ignorance is truly astonishing, and matched only by your rudeness! SIU's financial records are independently audited EVERY YEAR and the results are public records. Your post is an excellent example of the invective FA supporters rely on in trying to persuade the weak minded to support them. It will not work. In fact your post is an excellent argument in support of decertification

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  38. That annual audits only check if what SIUC said it spent money on matches reality, and what SIU says it received also matches reality.

    They obviously do not judge legality or rationale of all that spending. They are book keepers, not lawyers.

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  39. You better believe they ensure that every penny was spent legally! What do you imagine a State audit is!?

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  40. 7:00, I can only imagine how angry you are and how much it makes it hard to see anything but rage. Although you don't see to want to do it...your very actions tend to lead people, as 7:04 says, toward a consideration of decertification. Surely, that is not what you intend?

    I would like to hear your concerns in a less volatile manner.

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  41. Anon, 7:04 and Quiet One, It is because of your basic stupidity and refusal to recognize that SIU made a $15.8 million profit in the last financial year that makes me angry with people like you who go to any lengths to deny that this administration is totally corrupt. Yes, go ahead try to decertify, see where it will get you, and you will end up looking like the spineless appeasers of higher administration you actually are. I'm angry because students are being cheated in this institution and that you are accessories to this fact by engaging in denial.

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  42. Anon @ 9:51: We are tiring of empty rhetoric like this. You allude to knowing of administrative waste and corruption at SIU. Why don't you do something about it? Here is the website that details the process for you. http://www2.illinois.gov/whistleblower/Pages/default.aspx In fact, if I recall correctly from the ethics training I completed today, you are legally bound to report this type of information.

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  43. Anon 9.51 pm wrote:

    "Anon, 7:04 and Quiet One, It is because of your basic stupidity and refusal to recognize that SIU made a $15.8 million profit in the last financial year that makes me angry with people like you who go to any lengths to deny that this administration is totally corrupt."

    I doubt very much these these other faculty are "stupid" as you say. You really need to get some rest -- every time you comment like this you are only making stronger the argument that it is the union's de facto adversarial stance that is driving an increasingly poisoned atmosphere at SIUC. In my view, what will essentially be a vote of conference is *exactly* what the FA needs. Faculty on campus need to say what it is they actually want regarding representation. We have not done this for a long time.

    And again, if the number you report is from aggregate revenue for SIUC, it is irrelevant to the issue of faculty salaries or furloughs. Monies for one thing cannot (and should not) be easily swept from one category into another (e.g. money from my federal grant cannot pay your 9-month salary).

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  44. One very ticked off history professorNovember 7, 2011 at 11:38 PM

    My colleague Jon Bean is absolutely correct- we need to strike tomorrow so we get better furloughs language than what we are getting in this conceptual framework (note not a last, best, and final offer, a conceptual framework which still needs to be worked into acceptable contract language... the devil's in the details remember!).

    I am afraid one more day out there will be necessary to get furlough language that meets our interests as faculty. The weather will be nice and sunny and warm like today; the end is in sight; the BOT's bargaining team is desperate to get this wrapped up before the BOT itself arrives on campus Wednesday afternoon before their meeting on Thursday. I doubt Rita Cheng and Glenn Poshard can stand the local media scrutiny one more day either. I am going to sleep now in full belief that this is going to be settled within the next day, and will be a contract that I can live with and accept.

    Then onward into the classroom again, where I belong!

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  45. "Anon, 7:04 and Quiet One, It is because of your basic stupidity and refusal to recognize that SIU made a $15.8 million profit in the last financial year that makes me angry with people like you who go to any lengths to deny that this administration is totally corrupt. Yes, go ahead try to decertify, see where it will get you, and you will end up looking like the spineless appeasers of higher administration you actually are. I'm angry because students are being cheated in this institution and that you are accessories to this fact by engaging in denial."

    Likewise, it's your complete ignorance of different revenue streams being intended for different purposes and lack of accounting knowledge that make you completely unable to accurately analyze the situation. I sense I know who I'm debating with here, by the way. Your assertation that revenue streams are not flexible proves that people who know better can't and shouldn't listen to you. Please take a while, a brief hiatus from this blog and from the Illusion comments, to learn the facts here. Start with the Stone House controversy. Morris himself, the greatest President this school has ever had, got removed because he mixed revenue streams. Is that the course you want? Do you want to see this institution fail? My guess would be "yes."

    Fortunately, I don't think you speak for the FA. I do think the FA should distance themselves from uneducated opinions such as yours.

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  46. I wrote:

    "...vote of conference..."

    WTH? I meant "vote of confidence", of course. (Damn MSWord autocorrect...)

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I will review and post comments as quickly as I can. Comments that are substantive and not vicious will be posted promptly, including critical ones. "Substantive" here means that your comment needs to be more than a simple expression of approval or disapproval. "Vicious" refers to personal attacks, vile rhetoric, and anything else I end up deeming too nasty to post.