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Legal Considerations in Personnel Decisions

Promotion, Tenure, and Evaluation Risk Management and Compliance

Legal Considerations in Personnel Decisions

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.

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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. Personnel decisions 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: 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. Qualified immunity 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. Due process 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:
  1. 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.
  2. Opportunity to respond: The faculty member is entitled to the opportunity to challenge the institution’s actions.
  3. Impartial decision maker: The faculty member is entitled to an impartial ruling on the institution’s action.