From Dissent 67, April 14, 2003
[“Kurt Bozny” is one of Chunk’s alter-egos.]
For background, see ARCHIVES: Oct. 7, 2002: "A Legal Storm Brewing" or An ominous atmosphere (Academic Senate moving toward a lawsuit)
[This piece tells some of the story of the academic senates’ original legal action in the case of the faculty hiring policy. According to a statute, faculty hiring policies are to be “mutually” agreed upon by the district (i.e., the board) and the faculty (i.e., the academic senates). During the Summer of 2002, Chancellor Mathur established a committee, including no faculty, that developed a new hiring policy. The faculty were not even informed of this committee’s work. The product of the committee—a truly appalling and incompetent policy—was then adopted by the board.
Thus, at long last, the faculty senate sued the district. (It was about time!) Below describes the serving of papers and its immediate aftermath.
Here’s what happened next:
Judge Clay Smith ruled that the district had indeed failed to include the faculty in the development of the faculty hiring policy, contrary to law. He thus ordered the district and senates to get together to develop a faculty hiring policy.
But, in the end, the district’s representatives and the senates’ representatives did not see eye to eye on major issues, and so the district unilaterally pushed through the version of the policy that it liked, and it pronounced that policy the product of the committee. That policy was almost as appalling as the one that was neutralized by Smith.
Surprisingly, despite the vociferous objections of the Academic Senates to the new policy, Judge Smith ruled that the policy was indeed the product of “mutual agreement.”
It was an absurd judgment.
The Academic Senates appealed. By summer 2005, the appellate justices unanimously acted to overturn and vacate Smith’s absurd judgment. The board tried one or two last ditch efforts to have the court reconsider, but to no avail. The academic senates had won, and that was that.
The senates had prevailed, period. That meant that the only valid policy was the one developed at the end of 1993 (that one was mutually agreed to). It was a good one from the faculty’s perspective.
The appellate justices urged the parties to work out their differences, and so, in the Fall of 2005, district representatives (namely, Mathur, the instigator of the original unilaterally imposed policy, and Lang, now the board president) and Academic Senate reps (namely, the two senate Presidents and the union president) mutually developed a policy that both sides could agree on. That work was completed by late October, 2005. This mutually ageed to policy is a vast improvement.
At the time of writing, it only remains for the board to approve the new policy, and there is every indication that they will do just that. If they fail to do so, then the decidedly faculty-friendly 1993/4 policy will apply. ]
Saddleback & Irvine Valley Academic Senates Sue the District
By Kurt Bozny
Santa Ana, 1:15 p.m.: Wendy files the much anticipated “faculty hiring policy” lawsuit against the SOCCCD Board of Trustees and Chancellor RAGHU P. MATHUR. She’s well-prepared, and so she breezes through the paperwork. Soon, she’s out the door, headin’ south!
2:10: Wendy’s back at IVC. She and I decide to head down south together to serve Mathur with the writ and the attached documents—a big stack. It’s good to bring an observer, cuz some people get way squirrelly when you try to serve ‘em with a lawsuit, and Mathur’s definitely the type.
I briefly search for one of those neon green “legal observer” caps like they wear at the big protests in L.A., but I can’t find one. Dang!
Mission Viejo, 2:40: we’re up on the 3rd floor of the Library, closin’ in on Chancellor Mathur’s office. I catch a glimpse of Mathur exiting his office, movin’ towards Robina Husting’s desk. He hasn’t spotted us yet.
Wendy closes in, holdin’ the thick stack of legal papers in front of her. As it turns out, Mathur is holding a similar stack of papers in front of him. The two meet in the small space in front of Robina’s desk. Mathur just stands there. So Wendy places her stack on top of Mathur’s stack, sayin’, “You’re served.”
Mathur’s horrified. The indecorous fellow now jostles and squirms to avoid holding the papers, but it’s too late—he’s got ‘em!
I’m thinkin’: “Does he actually suppose that the lawsuit won’t happen if he avoids holdin’ this stuff?”
Finally, in a desperate attempt to avoid being served, Raghu shoves the legal papers forward and they fall to the floor. Fwap!
Legally speaking, such fwappage is irrelevant; he’d been served and, once again, he’d attained the title “Respondent Mathur.” Besides, leaving the lawsuit on his secretary’s desk counts, too, so Wendy now picks up the papers and places ‘em there.
Meanwhile, I size up the Chancellor’s unseemly conduct. “How rude,” I proclaim. We exit.
Respondent Mathur struggles to think of a comeback, but Attorney Wendy (and her cap-less Boswell) are already out the door.
Finally, he’s got one. He shouts:
“How rude are YOU!”
* * * * *
April : The next day, the district issues a peevish press release. It says:
SOCCCD Chancellor Raghu P. Mathur…commented on a lawsuit filed by the IVC and Saddleback College Academic Senates that disputes a new SOCCCD faculty hiring policy, stating, “The district is following the guidelines established under Title 5 that defines the ‘Delegation of Authority to the Academic Senates.’ There are 11 areas within the scope of academic and professional matters for which the academic senates have primary responsibility.
“The State Chancellor’s office has confirmed our view,” Mathur said, “that our hiring policies do not fall within the primary responsibility of the faculty….”
This is classic Mathur. The State Chancellor’s office does indeed hold that hiring policies are not among the 10 + 1 areas in which faculty are assigned primary responsibility by Title 5, a state regulation.
The problem is that the lawsuit does not mention Title 5 and it does not allege that Title 5 has been violated. Rather, it alleges that the new policies, and the manner in which they were developed and approved, violate an Ed Code statute (EC87360) and utterly defeat the intentions of legislators.
Ed Code statutes, of course, are more than regulations; they’re laws. They count bigtime.
In other words, with regard to the issue of faculty “hiring” policies, we don’t need no stinkin’ Title 5.
Respondent Mathur is ignoring—or failing to understand—that, in reality, the State Chancellor’s office takes the following view:
Education Code section 87360 requires governing board and academic senate representatives to agree on hiring criteria, policies and procedures to be adopted by the board. (Letter from California Community College Chancellor’s Office, Ralph Black, General Counsel, January 29, 2002).
In the District’s press release, Board President Don “So sue me” Wagner offers his own spin, expressing “disappointment” that the senates have decided to force the district to “spend money on attorneys, rather than students.”
* * * * *
On the 10th, the Register reports that
In an unprecedented move, the faculty senates of both Saddleback and Irvine Valley colleges have voted to sue their district chancellor and trustees over a new hiring policy that gives more power to college administrators at the expense of traditional academic hiring committees.
The lawsuit … asks a judge to set aside the new hiring policy because it was not approved by each college’s Academic Senate.
When the new rules were approved by a 4-3 vote by the …trustees in January, faculty representatives unsuccessfully pleaded with the board for more time to discuss them.
The state’s Education Code requires that hiring criteria and policies for new faculty members must be developed “and agreed upon jointly” by board members and the Academic Senate….
…Typically, new college instructors are selected by hiring committees made up of faculty members who are experts in the field and the head of the department. Their selection is usually ratified by the college president, the district’s board of trustees or both.
According to Wendy Gabriella, an IVC instructor and attorney who filed the lawsuit, faculty members were particularly unhappy with new rules that allow the district’s human resources director to change the scores awarded by committee members if she deems them too far off the norm and to unilaterally change interview questions.
Professors were also displeased with a new ethics and confidentiality section of the hiring policy that allows the human resources director to investigate and punish any member of a hiring committee who is accused of violating confidentiality.
“The policy allows the human resources department to accuse hiring committee members of bias, change their scores and discipline them without any due process or opportunity for appeal,” [said the] Irvine Valley Academic Senate President….
* * * * *
Also on the 10th, the President of the IVC Academic Senate, Greg Bishopp, sends a memo to IVC faculty. (The Saddleback Senate Prez later spams it to Saddleback faculty.) It says:
The Academic Senates of IVC and Saddleback College have filed suit in California Superior Court to block the implementation of a faculty hiring policy, which they believe to violate … the California Education Code. While the trustees and the administration of the SOCCCD maintain that their new policy, and the process used to develop this policy, does not violate the law, the Academic Senates claim that they do. In violation of the law, the Senates maintain, district administration has failed to allow faculty involvement in developing the procedures for hiring new faculty members. As a result, the adopted policy is fraught with violations of law, policy, and accepted practice.
Prez Bishopp also notes that the senates have “exhausted all internal means of appeal” and that, in January, Wagner “invited the Senates to sue the district to resolve the legality of the Board of Trustees’ alteration of board policy.”
That Wagner is quite a guy!
Bishopp closes by noting that the record
shows who has been responsible for wasting the district’s money in the past. Board President Don Wagner has stated that, “our district will again prevail on this misguided litigation.” However, in the seven legal actions brought by members of the faculty against the Board of Trustees, the courts have sided with the faculty and against the Board every single time, demonstrating that the Board, by violating the law, has been responsible for the suits, not the litigiousness of the plaintiffs. If the Board of Trustees does not wish to spend money on litigation, it should avoid breaking the law.
* * * * *
The district’s new faculty hiring policies (BP4011, 4011.1, 4011.2) are available online at the Saddleback College Academic Senate website.
Those who wish to read the statute should go to
http:// dynaweb.oac.cdlib.org:8088/dynaweb/ uchist/public/lawlegislation/1988amendch973/ @Generic__BookTextView/1290
To read a review of the statute and its relation to the historic AB1725 legislation, one might start by reading the local senates “handbook” on the State Academic Senate’s website:
See you in court! —KB
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