Legal Considerations in Personnel Decisions
Being a department chair means having to handle a diverse array of legal issues, including academic freedom, harassment, student privacy, and personnel matters such as termination and denial of tenure. Rather than trying to acquire a thorough understanding of the intricacies of every legal situation one might encounter, Fernando Gomez, vice chancellor and general counsel for the Texas State University System, recommends developing a basic understanding of legal principles, using common sense, and seeking expert help when necessary to make this important aspect of the position more manageable.
“Don’t undervalue common sense. The law is a compilation of legal precedents, but those are fundamentally based on human experience and common sense—what’s the reasonable thing to do here? We shouldn’t mystify the law. I don’t mean to say that it’s not complex, but most people have within them a certain innate intelligence, certain qualities that will enable them … to try to solve problems,” Gomez says.
Underlying Gomez’s approach to supporting chairs is the goal of reducing the number of lawsuits that the institution has to deal with. “Litigation is the most wasteful and often unnecessary use of human and academic resources,” Gomez says.
One area that has great potential for creating legal problems is personnel decisions such as termination and denial of tenure.
“Folks get upset, and reasonably so, about being denied tenure, and of course, they begin with the department chair. The department chair has to field those questions and has to know exactly what to say and what not to say,” Gomez says.
In these situations, Gomez recommends the following:
- Listen to the faculty member. “Figure out what the person wants. Put yourself in his or her shoes. What [does he or she] want? What’s hurting? What’s the problem?”
- Determine your position. “What do you want, and why do you want it? Make sure it’s justified. Go through a self-analysis. Never make decisions that are untenable or unjust.”These are questions to answer when determining which position to take:
- What are the reasons for taking action?
- What factors precipitated taking action?
- What rule or policy has the employee violated?
- What discipline, if any, has been administered?
- Show caring. “Always say, ‘I hear what you’re saying.’” For example, a faculty member might ask for release time during his or her terminal year in order to find another job, or perhaps the faculty member has a sick child and is worried about maintaining health insurance. “We’ve been known to pay for people’s COBRA for a period of 18 months,” Gomez says. “For $5,000 or $6,000, you take an issue off the table. It’s dealing with people in a way that gives them confidence that you’re trying to work with them, if not help them. It’s easy to dismiss somebody and say, ‘Look, you’re not entitled to that. I’m not going to talk about it. You’re being rude. Get out of my office.’ What you’re trying to do is let somebody down in an easy but firm way.”
- Role-play. Before discussing denial of tenure with a faculty member, Gomez has the chair speak with him or a university attorney in order to help the chair navigate the issues that may arise. Together they address why the chair is taking a certain action, factors that favor the employer or the faculty member, and possible resolutions. “We’ll often role-play,” he explains. “I’ll say to the chair, ‘I’m the faculty member. You’re telling me I’m not going to get tenure. Tell me how you would do it. Tell me what you would tell the individual.’”
Sometimes Gomez has the chair play the role of the faculty member and he will play the role of the chair, so the chair can get a sense of what it feels like to be in the faculty member’s situation. This helps the chair know what to say and how to say it.
The courts generally defer to the college’s or university’s decision, as long as the institution follows its own rules, Gomez says. In addition, when chairs exercise judgment, the courts will grant the chair qualified immunity and not hold him or her personally liable for discretionary decisions, as long as the chair has not acted maliciously or in bad faith or engaged in conduct that a reasonable person should have known violates another’s rights.
When a faculty member at a public institution is denied tenure, terminated, or accused of some malfeasance such as sexual harassment, under the Fifth and Fourteenth Amendments to the U.S. Constitution, that faculty member has three fundamental rights:
- Notice: The faculty member is entitled to be notified of the behavior that precipitated action and the rules or policies he or she has violated.
- Opportunity to respond: The faculty member is entitled to the opportunity to challenge the institution’s actions.
- Impartial decision maker: The faculty member is entitled to an impartial ruling on the institution’s action.