Constituents:

Yesterday, Representatives Chavez, Ringo, and I provided testimony to the State Board of Education (O.S.B.E.) regarding the Board's debate of granting total power to university presidents to change faculty contracts, establish furlough policy, change tenure standards,  and provide extremely limited appeal process.   The Board proceeded to approve the policy.   A group of legislators will be introducing legislation to establish an emergency fiscal review panel to control the Board's powers, and we are also asking for the Idaho Attorney General to investigate of what we believe to be illegal actions of the Board.  My presentation summarizes the basic issues involved.

Rep. Tom Trail

Rep. Trail's report to the O.S.B.E.—Feb 18, 2010

       Mr. Chairman and board members—during the past 9 months a number of legislators have been contacted by university faculty with serious concerns about the proposed human relations resolution that you have up for the second reading in today's meeting.   Historically in the past university presidents have worked cooperatively with faculty and staff to resolve financial matters in time of economic stress.  This team and democratic approach has been not only productive but has resulted in outcomes that have not been devastating to morale; however, it now appears that this democratic and teamwork approach has disintegrated into an attempt by the Board to grant university presidents sweeping powers and virtually unfettered discretion making decisions regarding contracts, furlough, tenure and other financial matters in times of economic downturn. The process utilized by the Board raises serious legal questions and concerns from faculty, the public and the Legislature.

   Let's review, for example, the process utilized by the Board to where we are at the point of granting university presidents almost total powers relating to financial matters.

1. Last spring under the leadership of President Kustra, Counsel Satterly, and Counsel Nelson of the University of Idaho, a decision was made with the Board to amend faculty contracts at Boise State University and the University of Idaho with the insertion of a statement in each contract that the President had authority to make significant changes in that contract relating to a series of financial matters.   I have a copy of such a statement in a faculty contract.

2. The troubling point here is that the OSBE had not yet officially adopted (nor have they yet) granted the delegation of authority to the presidents to make these changes and decisions.  There is the question of whether or not this was an illegal action by the Board and a violation of the 10th amendment of the U.S. Constitution concerning protection of contracts.   Here we have the old story of the cart before the horse.  There is also no evidence that the Board called in an outside legal counsel with expertise in contract law to provide an assessment of the Board's action.  State agencies do not implement major decisions until the Legislature approves policy through legislation.   Why is the OSBE an exception?

3. Discussions on the matter continued through the summer and also via a conference call in August.    No faculty participated in these discussions.   These discussions continued through the fall with a great deal of press coverage with comments from faculty and legislators—the majority of the comments indicated not only was the Board making a poor decision in  delegating/abdicating their powers to the presidents but that the process raised serious concerns about potential violation of the law.

4. On December 10th during the Board's 1st reading, the Board asked their lawyers concerning the appropriateness and legalities of the issues raised by the policies that had been invested. There has been no change in the resolution's language and no follow-up report from their lawyers has been noted.

5. Even one of the university presidents testifying before the Senate Education Committee commented that the "furlough language stated in the resolution is illegal" and that it would be extremely harmful to institutions of higher education in Idaho.  This President firmly stated he wants to stick with annual contracts and not attempt to come in and change employees' contracts mid-year.

6. The Board also tried another tactic.  The Board introduced HB-400 which if passed would have given the university presidents the same power as outlined in the resolution under discussion today.    HB-400 was killed in the senate but a new bill is being crafted to try and do exactly the same thing. If such legislation passed then the Board could turn to university faculty and point the finger of blame at the Legislature.

7. If this resolution is approved there will, no doubt, be some serious consequences:

     A. The College of North Idaho is already under censure

     B. The Association of American University Professors will censure and also black-list all higher education institutions within the state

     C. Litigation from several sources will take place

     D. The approval of the resolution will be a negative recruiting tool for new faculty

8. A group of legislators is prepared to take the following action is the Board does not reconsider its position on this resolution

     A. These legislators will ask the Idaho Attorney General to conduct an investigation of the Board's actions concerning potential violation of the 10th amendment (protection of contract rights, violation of the 14th amendment (due process), and other issues including the legality of implementing the decisions before actually making it official policy.

     B. Legislation has been drafted with a number of co-sponsors which would provide for a legislative financial crisis review panel in such cases as the Board in now confronting.

     The Board should seriously consider their decision today and the potential consequences of their actions.   Financial exigency may still be one alternative to consider, but it is apparent that not all of Idaho's university presidents feel the proposed resolution is legal and that the resolution and process by which the decisions were reached indicate at best a flawed process and raise serious legal questions and concerns that will devastate faculty morale and highlight Idaho's higher education system in the Chronicle of Higher Education.

     It is most disappointing to see the return of troubling policies such as the censure in 1982 of the University of Idaho which appears to be a serious departure from generally accepted academic standards.  It is unwise and unnecessary for the Board to turn the clock back to a time with the University of Idaho and as a consequence the rest of the state's four year institutions were under a black cloud.

Rep. Tom Trail

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