Monday, October 28, 2013

The Wellness Wars, Presidential Authority, Faculty Chair Responsibility, and the Integrity of the Senate at Penn State

(Pix (c) Larry Catá Backer 2013)
I have been following the so-called wellness wars at Penn State.  (e.g., The Wellness Wars at Penn State--Is the Institutional Faculty Splintering?, Aug. 21, 2013) Emerging from out of what some officials have publicly admitted was a botched roll out in the middle of the summer  of 2013, Penn State's efforts to reduce the costs of providing medical benefits to its employees through the imposition of a new form eugenics program administered through a system of layered third party providers roused a substantial amount of faculty and staff resistance.  The negative reaction focused on a variety of aspects of the plan--from intrusive questionnaires, to the penalties for failures to comply with voluntary wellness objectives, some of which the university's own faculty experts suggested were of dubious value, to the insensitivity to gender based privacy issues. (In Preparation for the Special Senate Meeting: Useful Questions Keep Coming; Credible Answers Hopefully Will Follow,  Sept. 13, 2013)

At the meeting of the University Faculty Senate on September 10, 2013, the Senate Chair was presented with a Petition to Convene a Special Meeting of the University Faculty Senate for the purpose of having the Senate consider a resolution urging the suspension of the Wellness Program.  (Special Faculty Senate Meeting to Consider Penn State Wellness Program: Announcement of Meeting of Senate Council to Review the Petition Along With Petition Text, Sept. 11, 2013). The University President responded to the actions of the Senate with a statement (e.g., Penn State Responds, A Message From the University President,  Sept. 18, 2013).

The text of the resolution as ultimately adopted by the University Faculty Senate may be found HERE (Resolution Approved by Faculty Senate 9/24/13 Take Care of your Health Initiative). Paragraph 5 of the Resolution adopted provided for a "healthcare task force, appointed to revise the administration’s ‘Take Care of Your Health’ initiative should be organized as follows: a. A minimum of twelve members. b. 1/3 of the members appointed by the administration. c. 1/3 of the members elected by faculty senators from among members of the University Senate. d. 1/3 of the members, appointed jointly by the administration, the University Senate Council, and the Staff Advisory Council, to include health policy experts, legal experts and staff representatives." The President responded to the Senate resolution, accepting some of its points and rejecting the rest, and in particular the methodologies adopted by the Senate for the composition of the Joint Task Force.  (President Erickson's Response to the Resolution 10/21/13).  He chose to convene a task force to "further consider the issue surrounding future health care benefits."  He thought it useful to "tap faculty expertise"  and directed the Chair of the University Faculty Senate  to "identify six faculty or staff members who are knowledgeable about health care matters to serve on the  the task force."  The President indicated that he would chose the other six members of the task force.  The President, together with the University Faculty Chair would then identify a chair for this task force. 
Although the President did not indicate the manner in which the University Faculty Chair was to "identify" the six faculty or staff to serve on the task force, the University Faculty Chair indicated that he would be selecting the task force members himself.  He indicated that he was choosing this course because he thought that was the President's wish. 
That decision generated the following communication to the University Faculty Chair, widely circulated (which I have been given permission to share):

Dear Chair . . . ,

We and many members of the Senate delegation, regret the unilateral decision to forego elections for the Senate members of the task force, as specified in the September 24th resolution. Despite assertions to the contrary, there is nothing in President Erickson’s letter to the Senate that forecloses a plebiscite as the method of selecting representatives to the task force. Provost Jones makes precisely this point in his letter to Patrick Broos.

“On the matter of the formation of the task force, President Erickson’s response to the resolution I believe was designed, absolutely, to respect the role of the senate in naming members, and give the senate full latitude in determining how to appoint its representatives as it sees fit. In fact it would probably be inappropriate for the president to tell the senate how it should conduct its business e.g., if in his response he stated that that members would be elected. Instead, I believe there has been a genuine attempt to have the senate “appoint” (which does not specify mechanism) its representatives (and six of them, or half the task force.)” – Provost Jones, October 25, 2013.

Whether the Provost was correct in asserting that the President's silence on a plebiscite was out of respect for Senate autonomy is immaterial. The President was silent (for what ever reason) as to the mechanism by which the Senate selected its representatives to the task force and so the Senate is therefore bound by its own resolution of September 24 2013, wherein section 5 specified that the Senate elect its representatives to said task force.

The main problem with appointing Senate representatives to the task force is that the resulting panel will lack institutional legitimacy - something that the entire implementation of the "Take Care of Your Health Initiative" lacked from the start. This was part of the reason for the resolution and special meeting in the first place. The primary purpose of holding a plebiscite was to ensure that the faculty representatives would reflect the views, concerns and expertise of the Senate. The Senate, as a body has concluded that an election was the best way to accomplish this objective in an open, fair and transparent manner. It is beyond the authority of the Senate chair to unilaterally reject that determination.

A decision to bypass election of senate representatives on the assumption that it falls within the discretion of the Chair of the Senate is flawed. Whatever authority the Senate chair possesses is constrained by the terms of the Senate's September 24th resolution, whose terms bind the Senate and its leadership, even as the resolution may only serve as advise and consultation to President Erickson. The decision that the Chair should appoint the full delegation is contrary to section 5 of the September 24th resolution to which the Chair is bound, as we all are.

It is worth noting that, since President Erickson elected not to set aside 1/3rd of the task force specifically for staff and non-senate experts, the chair of the Senate conceivably could appoint two of the six members, and stay within the spirit of section 5. This would leave 4 of the members (or 1/3rd of the task force) open for an election as called for in the September 24th resolution. Consistent with section 5, the two non-elected appointments, would have to be made in consultation with Senate Council and the Staff Advisory Council. There is nothing in the text of the resolution that gives the chair discretion to make all six appointments without polling the members of the University Senate.

In the interest of moving forward, and out of a respect for the votes cast in favor of the September 24th resolution, we hope that you will reconsider the decision to forego elections for the task force membership. Particularly since the President has voiced no objections to holding an election, a decision to override the wishes of more than three quarters of your colleagues will only create further division and undermine the important work of the task force.
The communication was signed by a majority of the persons who had sought the September Special Senate meeting. It is likely that the communication will have little effect and the University Faculty Chair, together with the University President, will staff the task force as they like.

The exchange between the Senators, the Senate Chair and the University President raises some interesting issues for shared governance and more importantly for the integrity of the Senate as an autonomous organization.  It is clear that the President of the University can do as he likes, within certain boundaries set by the Board of trustees, in the management of the University.  University procedures have been created for the convenience of the operation of the university but may, at the instance of the President (and sometimes with the approval of the Board of Trustees) be abrogated, modified or abandoned.  The President, of course, is accountable for these decisions, and may himself be terminated if they constitute an abuse, but by the action of the Board of Trustees if they choose to exercise that power (and as they must exercise it if it touches on their own fiduciary duty to the university to which they owe an undivided duty of loyalty and care).
In this case, it was for the President to decide whether he thought it useful or convenient, in his discretion, to constitute a task force and to charge it as he pleased.  He could, if he liked, have chosen its members by any means that struck his fancy, though not by unreasonable means (e.g., using tarot cards to make the choices would likely be unacceptable--to the board on complaint, but a random lottery among otherwise qualified potential members might be acceptable).  Though the legitimacy of the choice methodology might be subject to criticism or ridicule, as long as it is reasonable and supported by the board (and that support doe snot constitute a breach of the board's fiduciary duty) the choice must be accepted.In this case the President has chosen to identify a number of individuals to serve as members of the task force--while people may disagree with that choice, it is not unreasonable and not credibly subject to challenge. 

The Chair of the University Faculty Senate, however, stands in a very different place from the University President. The Chair of the University Faculty Senate serves in a representative capacity of a representative institution and is charged with implementing its will as expressed form time to time through the system of standing committees that have been created through the Senate's Constitution and related governing documents. The chair is the presiding officer of the Senate (Bylaws Section 2(a)). The Chair acts through Committees and not on his own authority; though he may speak as Chair he may not speak for the Senate without invoking the machinery of Senate action.  Indeed, much of the Senate's governing documents make it clear that the Senate acts through its committees and through the action of the body as a whole.  Unlike the administration of the University, the Senate is organized as a democratic and representative organization designed to express the views not of its Chair but of its representatives assembled as duly called meetings.   
On this view, it is not clear that the Senate Chair has any authority to disregard or put aside clear instructions from the Senate enacted at a duly called meeting and memorialized in a duly adopted resolution.  While Senate actions and resolutions may be advisory to the President (as it ought to be given the organization of the university), it could be argued that such resolutions and actions retain their mandatory character for the Senate Chair. Indeed, to argue otherwise would be to suggest that the organization of the Senate is identical an parallel to that of the university administration, with plenary power assigned to the Senate Chair to act as he likes, with the advice of the Senate and its committees.  But that is neither the way the Senate's organizing documents are written nor does that accord with the fundamental governance principles on which the Senate was founded and through which it has operated these many years. 
But this produces the potential for something of a conundrum for a Senate Chair in the circumstances related above. Assume that the Senate Chair is ordered by the University President to identify six members for service on a university committee and assume further that the president explicitly demands that the Chair make the selection himself and that a resolution of the Senate has directed him to subject that choice to election or approval by the Senate.  If the Senate Chair obeys the President, as he must, he disregards his fundamental obligations as the Chair fo the Senate.  If the Chair conforms to the demands of the Senate he serves, as he must, then he disobeys the President and may be subject to discipline.  In those circumstances, the Chair may appeal to the President and to the body of the Senate for either to change their instructions.  In the absence of any change in position a "constitutional crisis" of sorts is precipitated and an ethical Chair should resign.  Should the decline to resign and to follow the instructions of the President, he might be subject to removal by the Senate.  

The Penn State University Faculty Senate Bylaws Art.1 Section 6 provides
Any officer of the Senate may be removed for neglect of duty or for misconduct in office in accordance with procedures for removal in the Standing Rules, Article I, Section 11 (b).
Standing Rules Art. 1 Sec. 11(b) provides:
(b) At any meeting of Senate Council, a petition may be presented to the Chair requesting that any Senate officer be removed from office for neglect of duty or misconduct in office. The petition must be signed by at least two elected Senate Council members. Senate Council after appropriate investigation and discussion shall vote whether the Senate shall be polled to consider the removal of the officer. A majority vote of the total number of elected councilors shall be required. If the Council vote is to poll the Senate, a ballot or e-mail notification of the election website will be sent to all senators allowing at least ten working days for voting. A two-thirds majority vote shall be required for removal of the officer. In the case of the removal of the Senate Chair, the Chair Elect shall succeed immediately to the Chair. If the Chair Elect is removed, a new election will be held using regular procedures. If the Secretary is removed, the Senate Council shall elect a replacement.
Yet, as in most cases, constitutional crisis may be avoided by reasonable  interpretation. But reasonable interpretation requires a respect for the principles of shared governance and a willingness to respect the autonomy and integrity of the Senate.  In this case, for example, the crisis might be avoided by a reasonable interpretation of the President's specific instruction--to "identify" the six faculty members to serve on the President's health care task force.  Specifically, the Chair might choose to identify the six faculty members through the procedures specified in the Senate's resolution, permitting an election of those members as necessary to conform to the requirements of the Senate resolution.  Of course, the President is free to accept or reject such choices.  Ultimately, the President may elect to appoint such individuals as he desires, and treat the selections of the Chair as a mere suggestion.  Indeed, were the Chair to offer this solution to the potentially contradictory obligations he faces, the President ought to be free to ignore the Chair's choices and staff the task force as he likes.  But that is a choice that the President ought to make freely and openly, and for which he ought to be judged, for good or ill, as he is judged for all of the other decisions it is his duty to make.  
Indeed, the President's duties, choices and behaviors are quite beside the point to the issue of the Chair's obligation's to the body of the Senate.  For the Chair, the issue is not the President's power or his invocation of that power to staff a task force he constitutes to aid him in his obligation to manage the university.  The Senate Chair's obligations run to the institution he represents as a member of the larger university community he also serves.  The two positions are neither analogous nor are their functions and powers parallel. The Chair of the University Faculty Senate is neither its president, nor an administrative officer of the University.  He ought to to presume to act like either.  But it is for the Senate to decide what sorts of behaviors it will tolerate in its leaders and the manner it will chose to hold them to account. All such actions will help frame the character and effectiveness of the Senate as a representative body for the coming years.

Yet, what ought to emerge form this more formal analysis of rules and obligations is a sense of the prudential character of shared governance.  Shared governance is neither sustained by a set of rigid rules, however well intentioned, or by the blind bit formally authorized assertion of power. Good will and a desire to act prudently and pragmatically with sensitivity to the objectives of shared governance ought to counsel caution in asserting power that may reduce authority or in acquiescing to power in ways that harm the functioning of a system grounded in mutual respect.  My object here is not to suggest ay particular outcome, but to point out some of the complexities of shared governance.  It also points to a number of consequences, perhaps inadvertent, of conflations of authority or fuzzy thinking about duty and responsibility that it might be common to make for those who in the rush of the momentary crisis may sacrifice fidelity to institutional norms for favored results.  

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