SOCCCD: a confrontation over authority between the faculty and the board

The Academic Senates have recently run into a problem with the evidently clueless SOCCCD Board of Trustees. It's the kind of problem that generated a lawsuit against the district nearly twenty years ago—a lawsuit that the Academic Senate won and the Board lost.

The problem is that the Board is disinclined to grant the faculty authority to select and invite guest speakers. The Board of Trustees (BoT) insists that it and it alone can approve guest speakers.

Hey, not according to the rules.

As I said, we've been here before. The last time the faculty drew a line in the sand over lines of authority—and went to court—concerned the issue of developing (faculty) hiring procedures. According to an Ed Code statute, such procedures must be agreed to jointly by the Academic Senate(s) and the Board.

The Board saw the matter differently; on specious grounds, they claimed unilateral authority.

Here's the story:

What follows is from Dissent: 

The Academic Senate sue the district (and win)

[UPSHOT: the Chancellor/Board essentially unilaterally changed the district's full-time faculty hiring policy despite a statute according to which the Academic Senate (i.e., the faculty) has important rights in the development of such policies. In the end (2005), faculty entirely PREVAILED.]

Part 1: From Dissent 66, Oct. 7, 2002

LEGAL STORMS BREWING 

I counted two and seventy stenches, All well defined, and several stinks.  —Coleridge

Intervention sought: During an August meeting of the IVC Academic Senate, it was suggested that, given the Chancellor & Board’s exclusion of the Academic Senate from governance, there really is no point in continuing. It was suggested, too, that the Senate might better devote its energies to seeking redress in the courts. 

* * *
On September 12, the exec. cabinet of the IVC Academic Senate sent a letter to State Chancellor Nussbaum, seeking his “intervention” “to secure rights granted to local senates under Title 5” of the Ed Code. The letter cited four examples of the Board’s many actions in violation of “law, policy and process.” The first concerned the Board’s action (Fall 2000) to revise BP6120 (academic freedom), despite objections from the senates. Example 2 was the Board’s adoption (12/01) of a revision of BP5604 (eligibility for admission) despite “vehement” senate objections. Example 3 was the Board’s decision (2/02) to unilaterally revise BP 2100.1 (delegation of authority to academic senates), despite the policy’s explicitly prohibiting such action.

The fourth and most recent example concerned “revisions to District hiring policies,” including revisions to the Full-Time Academic Employees Hiring Policy, developed over the summer by Chancellor [Raghu P.] Mathur. These revisions, said the letter, “are rife with numerous individual violations of law, policy and good practice.” Despite Title 5, “At no time were any of the governance groups on either campus invited to participate, or even alerted to the existence of the committee.” Further, governance groups were given only 8 days to provide “input.” 

* * *

The Senate’s letter yielded a response—a letter discovered belatedly, and already opened, in the senate president’s mail box! Dated Sept. 16, the letter, from Ralph Black, attorney for the State Chancellor’s Office, requested further info to determine whether his involvement “would be warranted.” Black offers a jurisdictional point: “Unless faculty hiring is listed as an ‘academic and professional matter’ under the SOCCCD shared governance policy..., faculty hiring does not fall under the jurisdiction of [the Board of Governors’] regulations.” (More on this later.)

On Sept. 25th, Mathur emailed the Saddleback Academic Senate, suggesting that he is under no obligation to consult the Academic Senates regarding modifications of the hiring policy. To support this odd view, he cited Black’s letter and its point about jurisdiction, but he ignored Black’s remark, in the same letter, that Faculty hiring procedures are covered by [the] Education Code..., which requires that “hiring criteria, policies, and procedures for new faculty members shall be developed and agreed upon jointly by representatives of the governing board, and the academic senate….” (Ralph Black) 

Late in 1993, the Board approved a “Full Time Academic Employees Hiring Policy” that makes clear that the hiring policy can be changed only upon mutual agreement between the district and the faculty senates. This, of course, is the crucial “further information” that Ralph Black needs and will soon receive. 

* * *
Budget development, of course, is plainly listed among the academic and professional matters of the district’s “shared governance” policy (2100.1). Hence, a failure to consult with the academic senate regarding budget development would be a violation of “shared governance”—one that clearly does fall under Black’s jurisdiction. Mr. Black will be interested to learn that, at IVC, the senate has been excluded from the budget development process for years.

Chancellor Sampson

Part 2: From Dissent 67, April 14, 2003 

[“Kurt Bozny” was one of Roy's alter-egos, like "Chunk" and "Bill," "Van Traven," et al.]

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.

April 14, 2003

Saddleback and Irvine Valley Colleges' Academic Senates Sue the District
By Kurt Bozny

April 8:

Santa Ana, 1:15 p.m.: Wendy [Gabriella, faculty attorney; IVC Anthro instructor] 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 is 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 [9]: 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….”

Wendy Gabriella

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

Greg Bishopp

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, [Don] 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

Statute

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:

Handbook

See you in court! —KB

Part 3

Here’s what happened next (December, 2003): 

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. (Trial Court Judgment Date: December 31, 2003. TCCN: 03CC05351; Case Number G033455) 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 (January 28, 2004).

FINALLY:

Judge Clay Smith

By summer 2005, the appellate justices unanimously acted to overturn and vacate Smith’s absurd judgment. (See Irvine Valley Academic Senate v. Board of Trustees of the SOCCCD. See also excerpt below.) The board tried one or two last ditch efforts to have the court reconsider, but to no avail. (Petition for review denied in Supreme Court: August 24, 2005; recorded August 30, 2005.) 

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 good 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 agreed 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.

[The policy was approved.] [Re appellate ruling, see also here.]

From the appellate ruling:

     The Academic Senates of Irvine Valley College and Saddleback College ... appeal from the denial of a writ of mandate in favor of the Board of Trustees of the South Orange County Community College District (the Trustees) and Chancellor Raghu P. Mathur (collectively respondents). The dispute relates to the interpretation of Education Code section 87360 governing the process by which faculty hiring procedures are developed. We agree with appellants that the trial court incorrectly interpreted the relevant statute. We therefore reverse the judgment and remand for further proceedings consistent with this opinion. 

. . . 

...[B]etween the plain language of section 87360 and the legislative history of the statutory scheme, we conclude that the Legislature intended the faculty, through the academic senates, to have an ongoing role in developing and consenting to faculty hiring policies and procedures. In the event specific changes cannot be agreed upon, the existing policy would  remain in effect. In our view, this is the only reading of the statute that harmonizes both its plain language ("agreed upon jointly") and the legislative statement of intent (the faculty's "inherent professional responsibility" in developing hiring procedures). 

     Respondents [Board, Mathur, et al.] argue that this interpretation grants the Senates a “veto” allowing them to obstruct and frustrate the process of revising hiring policies. They suggest various scenarios under which the Senates' refusal to agree to new procedures would require the District to, for example, ignore state law regarding hiring practices. These arguments are overblown. No reasonable reading of the statute suggests that the District would be required to follow an existing policy that clearly contradicted state law, even if the Senates would not agree to revise the policy accordingly. (There is no suggestion here that any existing policy contravened state law.) Nor is there any evidence that the Senates were acting out of malice or with an intent to obstruct the process. Indeed, the trial court found both parties were negotiating with good faith and diligence.
     The bottom line is that the Legislature granted the Senates a role equal to the District's in developing and adopting faculty hiring policies. They undoubtedly contemplated a balance between the interests of each party and that compromise would be required. Respondents may feel this decision was unwise and are free to seek a change in the law, but the law on the books is what this court must follow. We therefore reverse the judgment and remand this matter to the trial court for further proceedings consistent with this opinion. We note that the parties and the public would be better served if the matter could be resolved by further negotiation or some form of dispute resolution, rather than continuing to spend scarce public resources to litigate the matter further. Indeed, perhaps a “joint agreement” could finally be reached. 

(From Irvine Valley Academic Senate v. Board of Trustees of the SOCCCD.)