2 thoughts on “Senate Meeting Agenda – January 18, 2017”

1. CORRIGENDA

   When Jette and I wrote the analysis above, we were unaware that the PoP currently posted was not the document created in 2011. It was, instead, created in 2015 and approved by Scott Coltrane on March 3, 2015. Therefore, our reference to the State Board of Higher Education is inaccurate.
   In Section 9 of the PoP, the phrase is “temporary emergency policy”, not “emergency temporary policy”. The argument remains that this phrase is unambiguous, and the phrase “emergency and temporary policy” is compatible with it, and both are consistent with the Constitution. Thus, from simple reading of the document, there remains no reason to conclude that either the PoP (or the Board of Trustees) intended to grant to the President the authority to make temporary, nonemergency policies. However, digging back to the Minutes of the 2/11’15 Senate meeting, I found the following:

   “Professor Bonine stated that he did not like the lowered standard, but explained “that the Board of Trustees had adopted a policy on delegation and retention of authority last spring, rejecting many recommendations from the faculty from the University Senate on how to write a better policy on delegation of authority and retention of authority. He stated that the policy adopted by the Board on June 12 read: “Emergency and temporary actions: Board actions shall have the force of law to extend…” and “emergency and temporary Presidential actions may have the force of law to the extent set forth therein.” He stated that the fifth paragraph essentially recognized that the Board decided to add the word “temporary,” as well as “emergency,” in the concept. He added that elsewhere in the policy, there was a stipulation that a six-month duration be applied to temporary measures. He stated that this basically amounted to treating temporary events like emergencies and putting a limit on them.”
   That testimony clarifies the intent of the Board to allow temporary, nonemergency policies to be enacted by the President. The Senate might as well change the wording of the PoP to be in concordance with the intent of Board’s Delegation document. I apologize for any confusion I may have created.
   The important issue remains, however, whether the Senate should call upon the President to honor the Constitution by refraining from using his undoubted Board-granted authority to issue a nonemergency, temporary policy. I am also uneasy about the Senate approving policies that are in violation of the Constitution. Such actions as these erode the perceived authority of the Constitution. When circumstances demand changes in the procedures established in the Constitution, the Constitution should be changed by lawful means before the new procedures are put into action.
    

   Log in to Reply

2. The two letters below were sent recently by Jette Foss and me to the President and Vice President of the Senate. They bear on the role of the UO Constitution and the Senate in the governance of the University, and were prompted by Agenda item 2.

   Dear Chris and Bill,
            We write in regard to agenda item 2 for the January 18 Senate Meeting:  “Discussion: Change the Policy on Policies to state that the UO President has the authority to enact temporary policies on other than an emergency basis?”
     I presume that this Discussion is prompted by
   (1) President Schill’s statement (10/28/16 Senate web site) that
   “…if for some reason we are unable to come to a consensus in four months [regarding the content of a policy proposal], then I will enact a temporary policy until that consensus is achieved,” and
   (2) the realization that for the Senate to alter the PoP in a manner that negates a portion of the Constitution would be an unconstitutional act, and
   (3) the realization that the President carrying out his pledge would be a violation of 7.2.2.2.1 of the UO Constitution, no matter what changes the Senate chooses to make in the PoP.
     What are the President’s options that honor both the BoT and the UO Constitution?
   1. The President can convene the Assembly to amend 7.2.2.2.1 of the Constitution to allow him to enact temporary policies without regard to emergency.
   2. The President can withdraw his plan to enact a temporary policy.
     To get the process back on a Constitutional track, the Senate can take the initiative of passing a Resolution calling on the President to withdraw his statement of intent. Such a resolution could look like this:
    
   A RESOLUTION 
   SECTION 1.
   1.1 WHEREAS on 10-28-16 (see Senate Web Site), President Schill wrote: “…if for some reason we are unable to come to a consensus in four months [regarding the content of a policy proposal], then I will enact a temporary policy until that consensus is achieved,” and
   1.2 WHEREAS the UO Constitution allows a University President to enact temporary policies, but only in response to an emergency and in compliance with SECTION 7.2.2.2.1., and
   1.3 WHEREAS the President has cited no emergency to justify the enactment of a temporary policy,

   SECTION 2.
   be it RESOLVED:
   That the Senate, in an effort to protect the shared governance mandated by the State Charter, requests that President Schill publicly withdraw his 10/28/16 statement of intent to enact a temporary policy or that he appear before the Senate to explain why it would not be in the best interests of the university for him to do so.
   .
   BACKGROUND:
   Under the Retention and Delegation of Authority document, the President holds the offices of President of the University and President of the Faculty. In the first role s/he is responsible for executing any requirements imposed by the Board of Trustees, including the governing of the University. In the second role, s/he and the Statutory Faculty are jointly responsible for academic matters. On occasion, these dual responsibilities may conflict. For instance, the Board of Trustees, which is not bound by the UO Constitution, may allow the UO President to enact policies that are incompatible with the UO Constitution. However, as President of the Statutory Faculty, the UO President is expected to support and defend the UO Constitution.
   We note that, with regard to President Frohnmayer’s agreement with the Athletic Department to support tutors, President Schill has stated that he would not break agreements between a former President and a unit of the University. The UO Constitution is such an agreement and deserves the same respect.
    
   Warm regards, and Happy New Year,
   Frank and Jette

   SECOND LETTER:
   Dear Officers,
   Here are my thoughts regarding the intent of the somewhat ambiguous PoP and Delegation documents. The conclusion depends on both the language and the history of the documents. I hope it will be helpful to you.  Depending on how things go, we will (or won’t) submit to the Senate a resolution like the DRAFT sent in my last letter.
   We must start with the Constitution, which predates the PoP and the Delegation and is unambiguous.

   Constitution 7.2.2.2.1 “If the University needs to comply immediately with Federal, State or local statutes, or in case of an immediate emergency, the University President has the authority to issue a temporary, emergency policy or temporarily suspend an existing policy without following the procedures described in this Constitution. Each action of this type shall if possible be issued only after consultation with the University Senate Executive Committee and the Faculty Advisory Council, shall have a duration of no more than six months, and shall be non-renewable and non-extendable. If the President wishes to make the action permanent, the President shall submit the policy for adoption by the University Senate following the procedures described in SECTION 7.2.2 of this Constitution.”
   No translation is needed — the Constitution allows the President too enact temporary policies in the event of emergency only. 
   The PoP was written prior to the President’s ratification of the Constitution, possibly in the week between the Assembly’s adoption of the Constitution and the Presidential ratification. The President signed a copy of the PoP on November 15, 2011, within moments of signing the Constitution (we were there.) No explanation was provided as to the origin of the document. However, Rob Kyr’s presence as President of the Senate lent an air of “Senatorial” approval to the PoP, even though the Senate had never seen it.  (Rob can enlighten you further.)  For the moment, let us suppose that the PoP authors had no intention to violate the Constitution when they wrote the two passages below (but see footnote):

   Policy on Policies:
   (1) Preamble: “ ..This Policy recognizes the University President’s on-going authority under the Board’s Policy on Retention and Delegation of Authority and the University of Oregon Constitution, to establish emergency and temporary Policies…” [Note: Because the PoP was written prior to the creation of our own Board of Trustees, we must read “Board” as State Board of Higher Education.]
   (2) Section 9:  “ Emergency Policies. If the University needs to comply immediately with federal, state or local law, or in the case of a determined immediate emergency, the President, pursuant to the Policy on Retention and Delegation of Authority, may issue a temporary emergency Policy…”
   Since we find these two descriptions in the same document, we have no reason to doubt that “emergency and temporary” and “emergency temporary” meant the same thing to the authors. Thus, we take “emergency and temporary” to mean policies that have the attribute of being simultaneously emergency and temporary, as in the Constitution. Furthermore, had they intended “emergency and temporary” to mean two classes of policies, one of which was emergency and the other of which was temporary, they would presumably have used the unambiguous language “emergency or temporary”. 
   [Note, the phrase “emergency and temporary policies” is ambiguous in common English, since it can be read as “emergency policies and temporary policies” or as “policies which are simultaneously emergency and temporary in nature”. Consequently, we, again, look to an earlier document, the Constitution, for its intended meaning, which, as pointed out above, is unambiguous.]
   Now for the Delegation document, which was composed long after the other two and borrows some of its language.
    
   Retention and Delegation of Authority “3.3 Emergency and Temporary Actions; Technical Corrections. The President of the University shall establish emergency and temporary policies, standards and directives when the Board or the President deems it necessary or appropriate.”
   If the Board meant their statement to refer to two different kinds of policies (in contradiction to the Constitution), they certainly would have taken care to write “…emergency or temporary policies…”  I suppose they simply grabbed the phrase from the preamble of the PoP, in which, as argued above, the meaning is presumed to be the Constitutional one. Therefore, we are justified to take the intended meaning of the ambiguous Delegation document directly from the Constitution, which unambiguously allows presidential temporary policies only in the event of emergency.
   ————————————
   Footnote:
   As I mentioned in UoM of November 2015 (on Constitution Day), the origins of the PoP are murky. It is quite possible that it was written by lawyers (not by Senators) whose intent was to grant future Presidents the right to enact “temporary”, nonemergency policies. Such a possibility would explain the lack of information regarding the origins of the PoP, even to those who were present at the signing ceremony. (Rob Kyr is, again, the only person on campus likely to have useful information.)  The unpleasant implication of this possibility is that President Lariviere, and possibly Rob Kyr, were willing to go along with it in violation of the text of the Constitution (which, we should note, had not yet been ratified by Lariviere).
   In view of the uncertainties raised by this possibility, when we try to interpret “emergency and temporary” we are left only with its ambiguity as a guide.   Did the authors mean to refer to two kinds of policies, or did they mean to refer to policies that had the property of being both emergency and temporary? [If you have trouble parsing this, think about sentences such as “On the fourth of July, the streets were lined with red, white, and blue flags,” or “As the Ducks ran into Autzen Stadium in their green and yellow uniforms, the crowd roared like ….”  In both of those examples, each item is assumed to be multicolored, as an emergency and temporary policy may be taken as a policy that is both emergency and temporary.]
   Remaining to be addressed, is the issue of whether the PoP was ever accepted by the Senate. If it was not, one might claim that it has no status under the present Constitution. However, that possibility was ruled out by the Senate itself when it adopted an amendment to the PoP (US14/15-50, sponsored by the SenExecCom, Rob Kyr President) which merely changed “Committee” to “Council”). In parliamentary procedures, we are told, amendments cannot be adopted without an implied adoption of the entire document. A second amendment followed quickly  (US14/15-54, sponsored by the SenExecCom, Rob Kyr President) which merely changed “for” to “regarding”) and, significantly, referred to the previously amended PoP as the NEW PoP, apparently to emphasis that the UO now had a PoP that HAD BEEN APPROVED by the Senate and was therefor a legitimate policy under the Constitution).  It is impossible not to speculate that US14/15-50 was brought to the Senate for the sole purpose of gaining Senate endorsement of the entire document.
   Absent further information, I conclude that the Senate has been, and is being, jerked around. 
   Whether my conclusion is correct or not, a strong statement for the legitimacy of the Constitution in settling this matter (of whether or not the President can enact nonemergency, temporary policies) is called for. One might say, “If they mean to have war, let it begin here.”
   BTW, at the risk of disrupting relationships that I treasure, I must confess that the nature of your response to this letter may tell me whether you are in on the abuse or have been duped, along with the Senate (and me) or, perhaps, give me a pleasant surprise.

    
    
    

   Log in to Reply