EXAMINING ADMINISTRATIVE PRACTICE IN PUBLIC INSTITUTIONS

 

 

THE UNIVERSITY OF LETHBRIDGE:
An Analysis of its Disciplinary Processes


A brief account of the disciplinary action

In September 2007, I posted a website in which I raised a number of questions about how the administration and Board of Governors of the University of Lethbridge were doing their business, based on my dealings with senior members of the administration and Board.

The administration and Board acted quickly. The Dean of Arts & Science, Chris Nicol, demanded (in a letter dated September 21, 2007) that I take down the site, retract and apologize for a letter I had written calling attention to the site, and that I make a commitment to the Dean in writing that I would not do such acts or similar acts in the future. The Dean also indicated that he might take further action against me. Lawyers for senior administrators and the Board demanded my web host remove material that I had posted. I refused to submit to the Dean’s demands and my web host refused to submit to the demands of the lawyers for administration and Board.

I explained in my letter to  the Dean (September 21, 2007) why I could not do as he requested, and I pointed out the Dean’s conflict of interest in the matter. The Dean responded (letter of October 24, 2007), charging me with gross professional misconduct and informing me that he would be recommending that I be suspended without pay for two months. The Dean did not address my concerns—this was clearly not to be a matter for discussion.

I responded to the Dean by letter (October 31, 2007), in which I pointed out that he had failed to address my concerns, and that his actions led me to believe that a meeting with him would not be useful. After sending that letter, some people suggested that I meet with the Dean to see what the Dean might have to say. I then met with the Dean on November 6 in a totally unproductive meeting (details below).

In a letter of November 15, Dean Nicol wrote to the President that the Dean had “just, reasonable and sufficient cause to believe” that I had “committed an act or acts of gross professional misconduct” for which I should be disciplined, and he recommended to President Cade that I be suspended without pay for two months. On the same day, the Dean sent a letter to me advising me that he was proceeding with the disciplinary process.

On November 18, I asked the Dean for a copy of all the evidence he had used to reach his decision against me. The Dean supplied me with a copy the material that he had sent to the President—a printout of my website and the letters that the Dean and I had exchanged since the website went up! REALLY! No counter evidence; no record of an investigation of the charges that I had made; no record of interviewing others who were players or witnesses. Nothing.

President Cade handed my case to Vice-President Academic Andrew Hakin. I met with Hakin on December 3, 2007. In a letter of December 11, Hakin informed me that all charges against me had been dropped.


Shutting down websites—
the modern equivalent to book burning

The Dean demanded that I take down my website and lawyers for the President, Vice-President Academic, Board Chair and Vice-Chair threatened my web host if the host did not remove material I had posted. Fortunately, my web host is located in Canada—rather than in China or a small Texas town, where such threats might have worked—and the site remained. Indeed, several people and organizations informed me that they would host my site if my site was removed by my threatened web host.

How disappointing to see the administration and Board of the University of Lethbridge trying to restrict freedoms rather than defending freedoms. The University is not the C.I.A., and our operatives are not endangered by exposure of flawed processes within the institution or criticism of administrative actions.

In the attempt by the University of Lethbridge administration to shut down a website, I catch a whiff of stale smoke from the bonfires of the old book burnings. Such efforts to silence and censure do not reflect universities at their best. I contend that universities give up their right to be considered part of the academy when they behave in this way.


Problems with the Dean’s evidence

The Dean failed to investigate the matters that I raised on my website. Merely posting the website seems to have been an act of gross professional misconduct in the Dean’s view. But there is nothing in posting a website that, in itself, constitutes gross professional misconduct. What if I had posted a blank site? That obviously would not have constituted gross professional misconduct (though given my experience over the past two years, I cannot be entirely sure of that). There would need to be something in the content of the site that served as the basis for the charge of gross professional misconduct.

The Dean has never stated in writing any specific element of the onebananashort.org website that violates any article of the Faculty Handbook. In a meeting with the Dean Nicol (Nov 6)—well after he had passed judgment on me and recommended my suspension—Nicol said the website was unfair and unbalanced and that it was impossible to separate factual errors from accurate information on the site.

Really? Well, let’s at least try—particularly before laying charges of gross professional misconduct. The site contains detailed email correspondence and letters sent either by me or to me. The site also contains numerous clear statements and questions about what was done. The language is in simple and readable English. Surely the task could not have been that difficult. I have always maintained that a neutral and full investigation needs to be done—but not by an uninformed dean who was not privy to key events and who did not investigate these events.

Nicol finally did point to a few specific offending parts of the website—over a month after I agreed to remove any part of the site that was inaccurate. In spite of my agreeing to remove any inaccurate information from the site, the Dean brought charges of gross professional misconduct against me. Why did the dean not try to resolve the matter by pointing out what he thought was inaccurate? In fact, he waited several weeks to tell me what he found to be problematic about the website, but in the meantime brought charges of gross professional misconduct against me. This is profoundly unfair.

What were the specific inaccuracies of the website? Nicol stated that: (1) I had said students were forced to sign a document, (2) I had said there was a “witch-hunt,” (3) I had posted emails from individuals who did not expect their emails to be made public, (4) I had violated procedure by going to the President, (5) I had violated FOIP, and (6) my dispute already had been settled by a Memorandum of Agreement between the Board and the Faculty Association.

(1) In regard to the first, the Dean was in a conflict of interest, since the matter related to the conduct of his office, and he should not have acted as accuser, prosecutor and judge regarding the matter. Further, I believe that the natural reading of the document in question supports my assessment of the situation. Students were required to sign a consent document to remain in the course— after they had already completed about 75 percent of the course. Below is what students had to sign (I have deleted the name of the instructor and of the course, since such information is not relevant.) I am not saying that the efforts made by the Dean’s office to accommodate the new situation were not adequate. I think everyone wanted to do the right thing in the situation, as I said on the original posting of this site. But I am saying that the requirement that students sign a consent form to continue in the course was unusual, unnecessary and, to some students, offensive. I am also saying that students were forced to sign the consent form, given the serious consequence of not signing. Am I guilty of gross professional misconduct in saying that students were forced to sign this form? This is what the Dean has claimed. Would not most readers say that students were being forced to sign this consent form? Am I guilty of gross professional misconduct because I read English in a more natural way than the curious reading that the Dean has given to the English language? Further, there is documentation in university files to show that students were given “W” on their transcript if they failed to sign the consent form and that they lost one-half of their tuition if they failed to sign. Not forced to sign? Really?



(2) In regard to a “witch-hunt,” I had tried every way possible to have a neutral investigation of the matter. Only then did I post the website. The Dean was not in a position to pass judgment on this matter since (1) he was not privy to the full range of evidence, and (2) he failed to do an investigation of the matters that I raised on my website. Thus the Dean could not pass judgment that would be just and reasonable, as required by the Faculty Handbook. If the Dean did not realize this on his own reflection, he was made aware of these problems when I responded to him, yet he continued with his action against me. As for determining whether actions against me could be considered a “witch hunt,” I used the duck test: “If it walks like a duck, quacks like a duck, and has a famous relative named Donald who works for the Disney Corp. it’s a duck.” It passed that test. The Dean cannot simply declare--on the basis of some vive—that there was no witch hunt. Deans are not seers, who can claim access to special ways of knowing. Such special revelation simply does not wash in an academic context, where thorough investigations are done and conclusions then drawn on the basis of evidence.

(3) As for individuals not expecting their emails to be made public, is not one of the first lessons of email that one should be careful what one writes and one should mean what one says? What I posted were emails to me or from me. Nothing came from the private musings of administrators or Board members as they penned their “Dear Diary” reflections at the end of the day. The expectation that such email correspondence had some sort of privileged privacy has not been asserted by anyone whose emails were involved—not even the administration and Board’s lawyers who tried to shut down my website.

(4) The charge that I had violated procedure by going to the President is simply silly. I was concerned to give the President a heads-up on a matter that could easily hit the press, and I thought he could fix the matter easily before things became more serious. I let the President know that a student was quite offended by being forced to sign a contract to remain in a course she had almost completed, and I asked the President whether he wanted to meet with the student to hear her concerns. The President gave no indication (then or at any time later) that I had violated procedure—nor did the Dean think so apparently, for the Dean knew about the matter for at least a year and a half before bringing charges of gross professional misconduct against me, but took no action at the time of the supposed offence. Has the university become a place where a faculty member can be charged with gross professional misconduct because a dean thinks the member spoke to a “wrong” person?

(5) The charge that I had violated FOIP is problematic, for the Dean does not explain what particular material on my website violated a particular item of the FOIP act. Indeed, it seems that the way the legislation has been appealed to by the Dean, we should drop the first three letters of the act, which stand for the “freedom of information,” or rename the legislation MOIP, for “muzzling of information.” Given the seriousness of the charge of gross professional misconduct, the administration must be more cautious in their interpretation of FOIP. FOIP legislation was never intended to silence or muffle criticism of the administration of public institutions, and it certainly was not intended as a billy-club for administrators to use against their critics. When it is so used, perhaps charges of gross professional misconduct should be vigorously pursued against administration. Further, even in a case where someone somehow violates some aspect of the FOIP legislation, is that automatically gross professional misconduct? Shall we all walk around on tippy-toes, fearing the agents of FOIP?

(6) The Dean’s claim that my dispute with the administration and Board was settled by a Memorandum of Agreement points to another serious flaw in the procedures of the University of Lethbridge—that is a failure of the grievance process and the conflict of interest of senior administrators in the process. This matter is taken up on a separate page: THE UNIVERSITY OF LETHBRIDGE: An Analysis of its Disciplinary Processes.


Problems with the Dean’s actions

Academic Freedom: The Deanʼs actions deny me my rights under the Faculty Handbook (11.01.3): “The Board and the Association recognize Membersʼ rights and duties associated with academic freedom, in particular, freedom to form ideas, discuss ideas, publish ideas, and teach ideas which challenge opinions regarding academic, administrative and all other matters.” This is the basic right of academics. There is a serious compromising of fundamental academic rights when administration attempts to silence criticism of its conduct.

Conflict of Interest: The initial matter that developed into this larger struggle was an action taken by the Dean’s office (see the story here). The Dean was in a clear conflict of interest when he took action against me for exposing what his office had done. Such conflict of interest fails the test of procedural fairness, as required by Article 2.19.1 of the Faculty Handbook (“duty to make a decision without a reasonable apprehension of bias or a conflict of interest”).

Improper use of the disciplinary process: The Discipline Article of the Faculty Handbook specifies that “a Member may be disciplined only for just, reasonable, and sufficient cause” (26.01). Further, it states that “when a Dean/Chief Librarian has reasonable cause to believe that cause may exist for the discipline of a Member, the Dean/Chief Librarian shall so notify the President and the Member and the Association in writing, giving the reason(s) therefor and the disciplinary measure the Dean/Chief Librarian recommends.” In my case, the Deanʼs action stemmed from my posting a website and sending a copy of an open letter to the President and the Board Chair to the student newspaper. There is nothing in posting a website or writing an open letter that, in itself, violates the Handbook or FOIP (Freedom of Information and Protection of Privacy Act), or that violates Canadian law, or that constitutes gross professional misconduct. The Deanʼs demand that I remove the website, that I retract the open letter and apologize, that I make a written commitment that these things had been done, and that I make a commitment “not to perform such acts or similar acts in the future” is unjust, unreasonable and without sufficient cause. The Dean must specify which particular aspects of the website and the open letter violate the Handbook and FOIP, since the website and open letter do not, in themselves, constitute violations. In that I agreed (in my letter of October 2, 2007 to the Dean) to remove any false statement and apologize for having posted such material, the Deanʼs move to discipline is without sufficient cause and is unreasonable, and thus in violation of the Faculty Handbook. Further, justice, reasonableness and sufficient cause would require a neutral investigation, which has not been done.

Assumption of guilt and denial of procedural fairness:

The disciplinary article of the Faculty Handbook states: “Disciplinary action shall be commensurate with the breach of professional duties. All processes under this Article shall be subject to procedural fairness as defined in Article 2.19” (Article 26.01.e). The Dean accused me of having committed serious offences and he recommended severe disciplinary actions against me. The Deanʼs actions have denied me the required procedural fairness (Article 2.19). Articles 2.19.3, 2.19.4, 2.19.5, 2.19.6 require specific treatment regarding evidence and an opportunity for a presentation of the case. Article 2.19 logically requires that its procedures be followed before a decision is made about the case. The Dean prejudged that matter without the required investigation that is necessary to determine whether my statements were fair or unfair. Further, given that much of my critique relates to conduct within the Board of Governors, matters to which the Dean did not have access, the Dean was not in a position to  judge the case. Although I replied to the Dean by letter (October 2, 2007), stating why I could not do as the Dean had demanded, the Dean proceeded with action against me without addressing my objections. It seems clear that the Dean had already passed judgment on me prior to an adequate investigation and prior to hearing my response. This violates procedural fairness.

Harassment: The Deanʼs implied threats (in his letter to me of September 21, 2007) constitute harassment—behaviour contrary to Article 11.01.1 of the Faculty Handbook. The Dean implied future actions against me if I did not comply with the Deanʼs demands (or, perhaps, even if I had complied). He states: “I continue to review this matter, and I will be writing to you further with respect to actions I might take regarding your behaviour.” This statement, whatever the Deanʼs intent, creates an atmosphere of threat and intimidation.

Abuse of Authority by the Dean: The Deanʼs demands constitute an abuse of authority—behaviour contrary to Article 11.01.1 of the Faculty Handbook.

(1) The Dean made demands that exceeded his authority when he improperly appealed to FOIP legislation in order to deny me my rights. In that the Dean chose to appeal to FOIP, he either knew that he was misusing FOIP or he left himself uninformed about the applicability of FOIP. In either case, the Dean acted beyond his authority and should have known that he was so acting.

(2) In the Deanʼs letter to me (October 24, 2007), the Dean accused me of “multiple breaches of the standards of professional behaviour. The Dean justifies his charge, in part, by specifying “a flagrant and insubordinate disregard” that I had shown to the Dean’s “advice and directions.” The charge that I had a “flagrant and insubordinate disregard” to the Deanʼs advice and directions is inaccurate. I responded to the Dean and explained why I could not and would not do what the Dean had ordered. The Dean did not reply to my objections; the Dean simply labelled my response as “flagrant and insubordinate disregard.” I have every right to disregard orders from administrators that limit my rights as defined in law, and I have every right to not follow orders of administrators who have wrongly applied the law. The Dean assumed authority that he did not have. My failure to follow the Dean’s directions was appropriate and, as such, was wrongly judged by the Dean as “gross professional misconduct.”

(3) The Dean demanded that I cease to do what I have a right to do [publish a website critical of the administration and send an open letter (addressed to the President and Board Chair) to the student newspaper]. These rights I have as a citizen of Canada (The Canadian Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms:…freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” 2.b). These constitutional rights are not terminated by employment with the University of Lethbridge.

(4) With the appeal to the concept of “insubordination,” the Dean showed a fundamental misconception regarding the relationship between a dean and faculty members. He assumed powers and rights over faculty members that he does not have.

(5) The Dean pointed out (in the section of his letter regarding “repeated breaches of duties and responsibilities”) that I had replied to the Deanʼs letter beyond the five working days that the Dean had indicated. The Dean made an arbitrary decision as to the days I had to respond. There is nothing in the Faculty Handbook that requires a faculty member to respond within the framework of an arbitrary deadline.


Problems with the Vice-President’s analysis

While I appreciate V.P. Academic Hakin’s dropping of all charges against me (which in my eyes was the first act of of enlightened reason I had encountered from administrators and senior board members for some time), I find that Hakin’s characterization of the Dean’s action as  “balanced” and “objective” profoundly problematic. I realize that Hakin had to walk a fine line, and I compliment him on taking a position in spite of it likely being unpopular with most administrators, but the reality is that the Dean’s actions were not balanced nor were they objective (though I suspect that they were sincere and without malice). We simply cannot allow actions such as these by deans to be called balanced and objective, for that would mean that the administration believes that it can act this way in the future and that faculty members better fear, for the club of gross professional misconduct may well be swung in their direction, with full intention to hurt. That is not the environment we wish to foster at our university, and, I believe, not the environment that Hakin wishes to see develop here.


Solution
Requiring university administrators and Board members to be committed to principles of academic freedom and freedom of speech

Academic freedom and freedom of speech have been basic to the health of universities—and to enlightened societies generally. It is time that we demand that our administrators and boards be committed to these principles, not just in words (which they have already agreed to in the form of binding documents), but in specific and consistent action. If an administrator or member of the Board fails on such a critical issue, that person should forfeit his or her connection to the university for having acted contrary to the fundamental interests of the university.

Universities are not Walmarts or Chinese sweat shops where employees line up in the morning to chant some company mantra or to praise their noble leader before they go off obediently to their work stations. The University of Lethbridge is supposed to be, according to the Faculty Handbook signed by the Faculty Association and the Board of Governors, a place where faculty members have “freedom to form ideas, discuss ideas, publish ideas, and teach ideas which challenge opinions regarding academic, administrative and all other matters.” It is time that the University of Lethbridge fostered such principles—rather than putting their efforts into shutting down websites and bringing charges of “gross professional misconduct” against faculty members who criticize administrative conduct.


Making the playing field fair

When university administrators and the Board decide to harass, intimidate or silence a faculty member, they can do so with the financial resources of the university (and taxpayer) at their disposal. The faculty member does not have such resources. Faculty members at the University of Lethbridge have spent tens of thousands of dollars of their own money on lawyers in the last two years to defend themselves against charges of gross professional misconduct. In each case, the charges brought by the deans have been dropped, after much cost to and pressure on these faculty members and strain on their families. This is an abuse of the disciplinary process, and there should be a public apology to these professors from the University, payment for expenses incurred by these professors, and a removal from office of administrators and Board members who become complicit in attempts to suppress free speech and academic freedom.


Living up to what we claim

There are numerous documents of the University of Lethbridge that assert the university’s commitment to fundamental principles of freedom of speech and of academic freedom. What we now need is proof of the university’s commitment—not words (we have them), but actions.

Click here to read university comments on freedom.


— Tom Robinson
Professor

The University of Lethbridge