What Should be the Faculty Role in the Development of Administrative Regulation at the University--Penn State's Senate Debates the Issue

(Pix (c) Larry Catá Backer 2015)

In September 2012, I noted a substantial issue of transparency at large universities. Focusing on the situation at Penn State I explained:

I have been writing of the obligations of transparency in its two principal forms.  As communicative transparency, this embodies the obligation on the part of the speaker to provide a sufficient amount of information in a timely manner that conveys what is necessary for stakeholders to understand actions undertaken, or that acknowledges communication received or that explains the nature of basis of a decision.  As engagement transparency, it provides  information sufficient for stakeholders to fully participate in decision making to the extent appropriate to the decision.  I have also suggested the challenges to institutional programs of actions in the face of failures of communicative and engagement transparency, and the potential for significantly adverse distraction from even significantly positive institutional objectives. (On the Importance of Transparency and the Relentless Pursuit of Knowledge in the Sandusky Affair--Governance in a New Era; see also here, here, and here)

Penn State has addressed the issue of communicative transparency, and has become something of a model for communication to its stakeholders. Penn State, however, has been slower to fully embrace  engagement transparency in a more meaningful way.  The issue of engagement transparency thus comes back to the University Faculty Senate.  For its January 2014 meeting, the Senate will engage in an open discussion (what we call a forensic), led by Ann H. Taylor, Senator representing Earth and Mineral Sciences and the Director of the John A. Dutton e-Education Institute, about the need for greater engagement transparency in the development of university administrative regulations--especially those that directly impact faculty. 

This post includes Professor Taylor's description of the issue and some brief observations:

Report on Administrative Policies at Penn State
(Forensic)

Date: January 16, 2015
From: Ann H. Taylor, Senator (EMS) and Director, John A. Dutton e-Education Institute
To: Jonna M. Kulikowich, Chair, University Faculty Senate

RE: Forensic report on administrative policies at Penn State

Governance of any institution, especially one as large as our own, requires a common set of guidelines and policies. At Penn State, these can be found in our Policy Manual (https://guru.psu.edu/policies/), which includes policies and guidelines in the following categories: administrative (AD/ADG)), budget (BT), business services (BS), financial (FN/FNG), human resources (HR/HRG), intellectual property (IP/IPG), payroll (PR), and research administration (RA/RAG). The first of these, administrative policies and guidelines, are set forth by the Board of Trustees and the officers of the University. The Office of the President is responsible for overseeing the “AD/ADG” section of the Policy Manual.

There are currently 81 administrative policies and guidelines in place at Penn State. These cover a broad range of topics, from Lost and Found Items (AD13) to Academic Administrative Evaluation (AD14). Many, but not all, of these administrative policies and guidelines govern the daily work of Penn State’s faculty. It is this subset that is the topic of this forensic discussion.

Per the University’s policy AD00 (Policy on Policies),

A University Policy may be initiated by a Responsible Official with authority and responsibility for the subject area addressed. The Responsible Official should oversee the drafting and development process and may designate and authorize others to assist. Responsible Officials should also periodically review and update policies to ensure compliance with best practices, laws and regulations and seek approval of any material changes. In developing or amending a University Policy, the Responsible Official should confer with others in the University who may be significantly affected by the Policy or who have relevant expertise in the subject matter. Responsible Officials may consult with the Office of the Vice President and General Counsel at any stage in the development process and in interpreting Policies that have been adopted.

At the September 9, 2014 plenary session of the University Faculty Senate, a forensic report on then proposed policies AD88 (Code of Responsible Conduct) and AD86 (Acceptance of Gifts and Entertainment) was presented and discussed. The Faculty Senate welcomed this opportunity to provide input on these important policies before they were presented to the Vice President for Administration and the President’s Council for formal adoption. At the September 9 session, Steven Dunham, Vice President and General Counsel, and Regis Becker, Chief Ethics and Compliance Officer facilitated a healthy conversation of the new policies. A number of key faculty questions and concerns were addressed, helping faculty make sense of the “legalese” and providing a public record of the intent of each policy, as explained by Dunham and Becker.

The Forensic Report of September 9, 2014 marked a positive change in the manner in which new “AD” policies are presented. Previously, University faculty (particularly the full Faculty Senate) have had little or no opportunity to review and provide input on new policies and guidelines that govern our work. Furthermore, many faculty have reported having difficulty finding their way through, and making sense of, the large body of University policies in order to discover the specific rules and procedures that govern their endeavors, such as travel, consulting, contact with minors, etc.

The forensic will be facilitated by Ann Taylor, Senator from the College of Earth and Mineral Sciences and Director of the John A. Dutton e-Education Institute.

Discussion will center on three questions:
1-Beyond “GURU” (the General University Reference Utility), is there a need for an online portal where faculty could easily discover information related to specific aspects of their work, providing answers to questions such as “I’m traveling abroad for the University this summer – what do I need to know?,” “I’ve been asked to consult for a firm in Indiana – are there any guidelines and/or rules I should be aware of?,” or “A local middle school teacher has asked me to speak to his class – are there any University policies or guidelines relating to this kind of activity?”
2-Does the University Faculty Senate need a mechanism for reviewing and providing input on new AD policies and guidelines that govern our work? If so, what might that process look like?
3-Does the University Faculty Senate need a mechanism for reviewing and providing input on existing AD policies and guidelines that govern our work? If so, what might that process look like?

__________

Professor Taylor poses a set of interesting questions.  They are made more interesting still because they serve to highlight the limits of the usual approaches of university administration relating to its responsibility of "consultation" (what they tend to understand as the extent of their obligation to facilitate engagement transparency behaviors) (Penn State Policy AD00).  The limitation arises precisely because, as Professor Taylor notes in her forensic, responsible administrative officers do not have a obligation to consult about a decision to create or modify a regulation--that decision remains solely in the discretion and control of the responsible administrators (and her superiors).  Thus the initiation process remains essentially an administrative act for which no consultation is required.  It is at this vital stage that transparency is almost entirely absent.

When then does the university determine that consultation is required in the process from (1) initiation, (2)  through the making of a choice about the direction and scope of the regulatory initiative, (3) through the initial drafting, (4) to its finalization and approval? Professor Taylor reminds us that consultation appears to be reserved only for the final stage of the regulation.making process.  And she notes, quite rightly, that even this limited invitation to engagement transparency is of fairly recent origin. 

But this very limited  nod in the direction of  engagement out to be troubling--Professor Taylor's point.  By the time that responsible administrators offer a regulatory initiative for consultation, there is really very little  that can be done.  The critical decisions--(1) should there be a policy; (2) what are its objectives; (3) what should be its scope; (4) how should it be drafted; (5) how might it be limited and the like have been decide.  The ability of the Senate to help shape the regulation is close to non-existent.  And accountability is reduced, especially since there are no stakeholders in a position to tes and monitor these regulatory interventions. Not that this sort of engagement is not useful. Indeed it is quite useful for pointing out errors or regulatory gaps or drafting errors. To that extent, Professor Taylor is quite right to express gratitude for the nod in the direction of the Senate.

But the administration could do better without affecting in any way its governance prerogatives.  Robust engagement (and the transparency that forms an essential part of that engagement) would suggest a consultative role at every stage in the process of regulation making, from conceptualization through final drafting.  There have been altogether too many instances where failures of consultation at the initiation and conceptualization stages has produces regulations that have required substantial glossing by an administration unaware of the complications it might have inadvertently drafted into its regulations.  That sort of effort is inefficient.  It fosters a sense that regulations might not mean what they say, or they pose a real threat--that indeed badly drafted regulations, glossed over reasonably by one set of administrators might be applied quite differently by their successors.  The result is a damage to the rule of law culture central to Penn State's operation in the danger that regulations, poorly drafted, may eventually mean only what the enforcing administrator says it means.  That is a result that no body desires.

But Professor Taylor notes another difficulty as well--a problem that is common in many complex regulatory environments: regulatory inaccessibility.   Stakeholders can only guide their behavior by those regulatory commands of which they are aware.  The ability to access information about regulations becomes more difficult when institutions do not effectively manage regulatory access.  Penn State, like many of its peers, might do well to pay more attention to the issue of regulatory access.  The touchstone for that is not the ease with which administrators may access these regulations, but rather the ease with which the reasonable employee (faculty and staff) might be able to access relevant information.  That requires (1) ease of finding the rules; and (2) ease of reading rules (plain English).   Many universities, Penn State included, can do a better job of both. The problem is compounded when it is not clear to the typical faculty or staff member that there may be a regulation that covers a particular situation. The University must do a better job of communicating the extent to which it manages the working lives of its faculty and staff.  Most would likely be surprised by the comprehensiveness of these regulations.  And that might give rise to a discussion of over-regulation.  No regulatory system can long survive when its rules exceed thew ability of its regulated population to comply.

Professor Taylor raises two additional questions--on the need for the University Faculty Senate to develop mechanisms (1) for reviewing and providing input on new administrative policies and guidelines and (2) a mechanism for reviewing and providing input on existing administrative policies and guidelines.  It seems fairly clear that such review and input mechanisms form an important part of the Senate's work--and fall well within its advisory and consultative role.  Professor Taylor is quite right, however, to remind us that the Senate does not have an institutional mechanism that directly addresses this responsibility.  It is likely high time for the development of such a mechanism. But there is a more important, and largely unstated question, that lurks in the background.  It si one thing for the Senate to assert an authority to seek to participate (become engaged) in a more transparent rule making system.  But that engagement can only be possible with the cooperation of the responsible administrators at the university. Thus, in a sense, Professor Taylor's second and third question are better directed to our administrative colleagues--is the university administration open to a more robust regime of engagement (respectful of course of the administration's prerogatives to manage the university within a shared governance framework). 

It is to be hoped the the university's administration will answer in the affirmative.  If that is the case, then the ultimate and most important question that ought to be posed to the Senate is this:  Is the University Administration willing to modify PolicyAD00 to reflect enhanced consultation. Thus for example, the provision that currently reads:

If a University Policy would significantly affect academic issues and/or the faculty, the Responsible Official must consult as appropriate or required with the Provost’s Office, the University Faculty Senate, and the Academic Leadership Council prior to final approval.

 ought to be modified to read

Where a University Policy that relates to academic issues and/or the faculty, the Responsible Official must consult  with the Provost’s Office, the University Faculty Senate, and the Academic Leadership Council from the point where the Responsible Official  initiates policy development or modification. 

One should recall, however, that consultation does not control over the process nor does it imply a power to control the regulation process.  The responsible administrator and ultimately senior administrators and the Board of Trustees retain their traditional authority to decide how, when and what to regulate.   But consultation does mean that these officials might no longer work in a vacuum, and might acquire information and perspectives early enough in the regulation crafting process to produce sound administrative regulations that might better meet their objectives that that might be less burdensome to enforce,