SUBJECT:

Outcome of the March 13, 2006 Meeting of the Assembly of the

Academic Senate To all members of the Academic Senate, San Diego Division:

I know that many of you have been wondering about exactly what transpired at the General Assembly meeting on March 13. I --and other UCSD representatives-- have been very discreet about the details of this meeting that was conducted in its entirety as an executive session.

Several of you have made to me the argument that since the nature of the reasons to cast a vote of no-confidence in the chair and then a vote to remove the chair of the Assembly was basically administrative, there ought to be a full accounting of the session. I communicated these arguments to the UC General Counsel. This is consistent with Regents' Bylaw 21.2, which provides as follows:

"General Counsel

"The General Counsel and Vice President for Legal Affairs, who shall also be an Officer of the University, shall be the chief legal officer of the University; shall have general charge of all legal matters pertaining to the Corporation and the University; shall attend meetings of the Board and its Committees; shall represent the Corporation in all legal proceedings; shall advise the Corporations, its Committees and Officers, the President of the University, University officers, and Officers of the Academic Senate on legal questions as may be required; and shall, subject to the direction of the President of the University, oversee the provision of all legal services to the University."

In addition, I have made available, and include below, a ruling of the University Committee on Rules and Jurisdiction as to which Bylaws of the Assembly apply in this case and which procedures should be followed. This ruling governed the discussion on March 13. The R&J letter is a public document, and may be treated as such.

I also include below a statement crafted by the UC General Counsel's office, and revised in response to queries from the Senate membership at all campuses, as reported by myself and by other Division chairs. The Academic Council sought such input from the General Counsel so as to insure uniformity of reporting across the entire system.

Nevertheless, I wish to include a few personal comments, in which I draw from notes taken at the most recent meeting of the Academic Council (March 22).

1. There was no "rush to judgment". The issue faced by the Council emerged in full at the January 25 meeting. The subcommittee of the Council that looked into the functioning of the systemwide Senate Office reported in February. Considerable discussion occupied the Council until the Assembly meeting of March 13. The March 13 meeting consisted of 6 hours of thoughtful debate focused exclusively on the vote of no-confidence. All points of view were heard.

2. The Council agreed in February, and the Assembly concurred on March 13, that the vote of no-confidence was solely based on the job performance of Professor Brunk as chair. No other consideration was to be taken into account.

3. The vote of no-confidence is the natural mechanism of a parliamentary system to repair a dysfunction. It does not involve, nor does it reflect on, Professor Brunk's status as a member of the UCLA Senate Division, his tenured status, nor more generally his academic standing.

4. I will bring to your attention that many parliamentary organizations use the mechanism of a vote of no-confidence to rotate leadership when the organization becomes dysfunctional for any reason. Insofar as the desire is to achieve better effectiveness and functionality of the system, there is often no opprobrium associated with such a vote. In the present case, the Council and the Assembly had to act to correct an unacceptable level of dysfunction within the systemwide Office of the UC Senate.

5. I learned a fine point of law that I had not appreciated earlier: When it comes to a situation where the matter is one of job evaluation and job performance --as is the case here-- the right to privacy of the individual trumps the desire of the broader body to learn about details. We apply this principle to all our staff and CAP evaluations. Only in a case of wrongdoing, does the public's right-to-know trump the individual's right to privacy.

6. Should any of you wish to have more details released, you may ask Professor Brunk for permission to release such information. This has to be in writing (email with signature is OK). In that case, I would agree to discuss the matter privately. Requesters might of course want to discuss it with Professor Brunk as well so as to have his point of view.

7. Finally, I do wish to include a statement sent to me by General Counsel Birnbaum, which summarizes well my discussions with him and where we stand as the San Diego Division: "As you know from our conversations, I am sympathetic with the desire of some faculty to know more, and with the thoughtful comments remarking on the 'balancing' of privacy interests with the public's right to know. In the end, I and others in my office can only offer our best judgment as to where to draw the line in terms of that balancing, based on our reading of the statutory and case law, and our experience in this area."

I have to say that I stand impressed by the thoughtful and professional conduct of the Academic Council and of the General Assembly in this matter. The Senate can be proud of our representatives.

Best regards to all.

Jean-Bernard Minster, Chair, Academic Senate San Diego Division

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University Committee on Rules & Jurisdiction Ruling of March 09, 2006

Clifford Brunk, Chair
Chair, U.C. Academic Senate

Dear Professor Brunk:

In a letter dated February 28, 2006, you requested an opinion from the UC Rules and Jurisdiction Committee on five questions. We answer the questions below and summarize our answers in a draft legislative ruling, which we are submitting to the Academic Council for comment.

Because this is an urgent matter, we are taking the step of circulating the draft ruling to all members of the Academic Council via email and giving them until Sunday, March 12 at 5 p.m. to respond.

The draft ruling is pasted below and attached in pdf format.

All my best,

Eric Smith
Chair, UC Rules & Jurisdiction Committee

****************************************************************

Draft Ruling

Question 1. Does the Academic Assembly have to pass an appropriate bylaw prior to proceeding to remove the current Chair of the Academic Assembly?

No. The Assembly has the power to remove an officer under Bylaw 35.D.5 and under general standards of parliamentary procedure as described in Sturgis, The Standard Code of Parliamentary Procedure.

Bylaw 35.D.5 says, "A systemwide Senate agency may by a two-thirds vote, revoke any appointment it has previously made. Prior to revoking an appointment, the agency shall give notice to the appointee, including reasons for the proposed revocation, and provide the appointee with an opportunity to respond." The Assembly of the Academic Senate is specifically defined as an agency of the Senate in Bylaw 20.A. Therefore, the Assembly has the right to remove an officer.

The right of the Assembly is consistent with conventional parliamentary standards. Sturgis writes, "An organization has an inherent right to remove an office or director from office for valid cause. Officers, directors, or committee members can be removed by the same authority that elected or appointed them." (Sturgis, 4th ed, p. 173).

Question 2. What would constitute a valid reason for the removal of the Chair and who would judge the validity of this reason?

The Bylaws are silent on this question, so we must turn to Sturgis, who writes:

"The common valid reasons for removal from office are:

1. Continued, gross, or willful neglect of the duties of the office.

2. Failure or refusal to disclose necessary information on matters of organizational business.

3. Unauthorized expenditures, signing of checks, or misuse of organization funds.

4. Unwarranted attacks on the president or refusal to cooperate with the president.

5. Misrepresentation of the organization and its officers to outside persons.

6. Conviction for a felony.

"Examples of conduct that are not valid grounds for removal from office are:

1. Poor performance as an officer due to lack of ability.
2. Negligence that is not gross or willful.
3. A tendency to create friction or disagreement.
4. Mere unsuitability to hold office."
(Sturgis, 4th ed., pp. 173-74).

The Bylaws do not establish any procedure for appealing an officer's removal by the Assembly; therefore, the Assembly itself is the judge of valid reasons for removal. We also note that the UC Rules & Jurisdiction Committee does not have the authority to rule on the validity of the reasons for removing an officer.

Question 3. How are the requirements for "adequate notice to the accused officer, a fair hearing, the right to counsel, and a reasonable opportunity for the officer to present a defense" to be fulfilled (Sturgis; "Removal of Officers" p 174)?

The Bylaws are silent on this question. Sturgis writes, "The bylaws should provide for procedures for removal or suspension" (p. 173). We conclude that the Assembly must determine how to fulfill these requirements. We note that the UC Rules & Jurisdiction Committee does not have the authority to create rules or procedures for removing an officer.

Question 4. Were a Bylaw to be passed detailing the removal of the Chair of the Academic Assembly, would it become effective only at the next Academic Assembly meeting?

Bylaws take effect immediately upon passage unless the language of the bylaw specifies a later date. If the Assembly were to pass a bylaw establishing procedures for removal of the Chair, for example, the Assembly could then proceed to removing the Chair immediately after passing the bylaw.

This ruling is based on Bylaw 116.E, which says, "Modifications of legislation shall take effect immediately following approval unless a different date is specified or required."

Question 5. It has been suggested that Senate Bylaw, Part I, Title IV, 35, D 5, "A systemwide Senate agency may by a two-thirds vote, revoke any appointment it has previously made. Prior to revoking an appointment, the agency shall give notice to the appointee, including reasons for the proposed revocation, and provide the appointee with an opportunity to respond. (En 12 May 2004)" might apply to the "removal" of the Chair of the Assembly. This appears to apply to appointed members of committees and not the elected Chair of the Assembly. Please opine on applicability of Senate Bylaw, Part I, Title IV, 35,D 5 to the removal of the Assembly Chair.

As stated in response to Question 1, Bylaw 35.D.5 applies to removal of the Assembly Chair.

LEGISLATIVE RULING

In accordance with Senate Bylaw 206.A., and in response to Professor Brunk's request, UCR&J hereby reports the following Legislative Ruling to the Assembly:

The Assembly has the power to remove an officer of the Assembly with a two-thirds vote under Bylaw 35.D.5. The Assembly should only remove an officer for valid reasons, and the Assembly should provide for adequate notice to the accused officer, a fair hearing, the right to counsel, and a reasonable opportunity for the officer to present a defense. Nothing in the current bylaws specifies the standards or procedures to be used for judging what constitute valid reasons for removal of an officer, adequate notice to the accused officer, a fair hearing, the right to counsel, or a reasonable opportunity for the officer to present a defense; therefore, the Assembly must decide these questions. The Assembly has both the authority and the responsibility for these decisions.

In the matter of how to interpret Bylaw 116.E: bylaws take effect immediately upon passage unless the language of the bylaw specifies a later date. Therefore, the Assembly may pass a bylaw and take actions pursuant to that bylaw during the same Assembly meeting. The Assembly is not required to wait until its next meeting before acting under the authority of a bylaw it has just passed.

--Professor Eric R. A. N. Smith
Department of Political Science
Phone: 805-893-4328
Email: smith@polsci.ucsb.edu
Affiliated with the Environmental Studies Program & Bren School of Environmental Science and Management
University of California, Santa Barbara
Santa Barbara, CA 93106-9420

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Summary of the Outcome of March 13, 2006 Assembly Meeting

To: Academic Council

From: David Birnbaum, University Counsel

Re: Disclosures regarding the Senate Assembly meeting of March 13, 2006

Cc: James Holst, Maria Shanle, Susan Thomas

I know that many of you have been fielding inquiries from Senate members in connection with the Special Meeting of the Assembly held on March 13, 2006, at which the Assembly voted in favor of two items of business: a motion expressing No Confidence in the Chair of the Academic Senate, Professor Clifford Brunk, and for removal of Professor Brunk from office. Issues have arisen about what information can be shared, given concerns about Professor Brunk's right to privacy. It appears that it would be helpful for the Office of General Counsel to provide you with this statement, which you can share with your Senate colleagues, in order to help address their questions and concerns:

Shortly after the public meeting was convened on March 13, 2006, the Assembly decided to conduct this business in Executive Session. Attendance was then limited to members of the Assembly, the Interim Provost, two staff members, the Assembly Parliamentarian and two representatives from the Office of the General Counsel. In addition, the Chair requested that his wife, who is not a member of the Assembly, be permitted to attend and the request was granted by unanimous consent.

The grounds for the Assembly's action removing Professor Brunk as Chair are set forth in the resolution of No Confidence, as follows:

"Resolved: The Assembly of the Academic Senate of the University of California, has no confidence that (1) Clifford Brunk is professionally, faithfully, or effectively performing the duties and responsibilities of the Office of Chair of the Academic Senate, and (2) that Clifford Brunk can faithfully represent the views of the University of California Academic Senate."

The amount of information from that meeting that can appropriately be disclosed to others within the Academic Senate is limited due to required confidentiality. The Assembly's observance of University policies regarding confidentiality of personal information has been undertaken in order to protect the right of Professor Brunk to have matters concerning his job performance (as Chair) treated as confidential, the same right all University employees have. To the extent a Senate member is concerned that Professor Brunk may not have been treated fairly, s/he can ask Professor Brunk to provide a signed release that would permit a member of the Assembly to discuss the substantive reasons for the decisions reached.

The requirements of confidentiality in this case are based on the provisions of the California Information Practices Act (Civil Code Sections 1798, et seq.), and the California Public Records Act (Government Code Sections 6250, et seq.), which are discussed in a recent court decision: Versaci v. Superior Court ___ Cal. App. ___ (2005)
http://caselaw.lp.findlaw.com/data2/californiastatecases/d044899.pdf . See also APM 160-20-d (1) and APM 160-20-b (5), which prohibit disclosure of personal information about an individual, the disclosure of which would constitute "an unwarranted invasion of personal privacy of the individual" -- the same standard applied under the Public Records Act and interpreted by the court in the Versaci case. Maria Shanle, in the General Counsel's office, and I would be happy to discuss the issue of confidentiality further with any Senate member at his/her request. We can be reached at (510) 987-9800, and at david.birnbaum@ucop.edu and maria.shanle@ucop.edu.

Confidentiality does not mean, however, that the process that was engaged in is itself protected from disclosure. Professor Brunk's performance in the office of Chair, and the way that has affected the functioning of Senate business, was evaluated by a Special Committee of the Academic Council, created in January, which made a report to the Council in February. This was followed by a vote by the Council of No Confidence in Professor Brunk as Chair of the Senate. Prior to the Academic Assembly meeting in March, the report of the Special Committee was made available to Assembly members, along with other written materials addressing Professor Brunk's performance, and including materials submitted by Professor Brunk in response. At the Assembly meeting, many members of the Assembly participated in the discussion of this issue, providing information and perspectives, and asking questions. Professor Brunk was afforded the opportunity to respond to the points made during the meeting as well as the privilege of making the closing remarks prior to each vote of the Assembly. Only after reading and hearing all of this did the Assembly act. The meeting lasted for several hours and all present who expressed a wish to do so, had the opportunity to speak or ask questions.

The vote on each item was as follows:
No Confidence
Yes: 48
No: 3
Abstentions: 2

Removal
Yes: 50
No: 2
Abstentions: 2

I hope that this information is helpful to you and to those members of the Senate with continuing questions and concerns.