Post-Tenure Review Bargaining Update: October 25, 2023

Dear FSU Colleagues,

The UFF and BOT teams met Wednesday, October 25^th, to discuss the latest BOT counter-offer on the memorandum of agreement (MOA) about the Post-Tenure Review (PTR) process. The UFF-FSU team started the meeting by clarifying that both teams agree on the importance of tenure for academic freedom and for the reputation of the university. The UFF-FSU bargaining team then asked questions to clarify some parts of the counter-offer, especially the changes proposed by the UFF-FSU bargaining team which were struck by the BOT team.  Discussion involved the following questions and concerns.

• Why did the BOT team exclude the in-unit tenured chairs from the PTR process, given that they can request for postponement as long as they are chairs and even thereafter? The main reason they provided was that the Board of Governors’ (BOG) regulation considered chairs and unit directors as administration and excluded them from the process.
• Why did the BOT team strike “calendar year” in defining the review period? Our team included calendar year in our last counter-offer because annual evaluations are performed on calendar years. The BOT team stated that the academic year is more consistent with BOG regulations. We note that if PTR is done on Spring 2024, neither calendar year nor academic year will consider the last five years of faculty who were granted tenure in the Fall of 2019. The calendar year includes Spring 2019, which is before they started their tenure and the academic year falls short one semester. The BOT team answered that they could not add “calendar” year because of the BOG regulation and said that they would be using some material from the academic year and some from the calendar year without prior specification.
• We asked the BOT team to define the “average performance of faculty member within the unit and discipline.” We pointed out that this is not a well-defined concept and might lead to arbitrary decisions. Also, being below average can mean many faculty members (say, half) do not meet expectations. The BOT team argued that this is the language of the BOG regulations and they have no authority to change it. They added that the term “average” in the BOG regulation is a holistic concept and does not need to be defined rigorously as the UFF-FSU team requests.
• The UFF-FSU faculty team raised concern about double jeopardy in the PTR process regarding disciplinary actions. We argue that if a faculty member is disciplined for an action in the past, the faculty member is not supposed to be disciplined again for the same action during the PTR, especially if the PTR leads to termination of the faculty member and weakens tenure. The BOT asserted that any disciplinary action must be a part of evaluation and that it is a widespread practice. However, they didn’t provide any reference to an institution in which this practice happens or any research that would show that such practices are widespread. They also promised that a faculty member who is disciplined but not terminated will never be terminated on the basis of past discipline, but they would not agree to include that language in the MOA. Part of the BOT’s reason for insisting on using past discipline to give faculty members an “Unsatisfactory” rating that could lead to termination was that the BOG regulation said so. We are in disagreement about whether or not the BOG has the authority to dictate these terms and conditions of employment when the BOG is not a party to the contract.
• The BOT team rejected this language that we proposed: “The dean or Provost shall not grant the faculty member a rating that contradicts the last five years of annual evaluations to the point that a reasonable person would be surprised by the outcome.” Their main argument is that anybody can claim to be reasonable but may judge “surprise” differently. Our belief is that our proposed language provides guardrails so that there are no surprises in the PTR and the outcomes are consistent with the last five evaluations of the faculty member. Using a “reasonable person” standard is common practice in the law, though they claimed that a court wouldn’t know what to do with such a standard.
• Why did the BOT team strike the requirement for “written justification” for the Provost’s PTR rating? The BOT team did not answer directly, but stated that justification would be in a letter to the faculty member as it is required by BOG regulations. They also argued that because the number of faculty included in PTR is high, this practice is impractical. However, they agree that there should be feedback to some faculty members, but not all.
• While arbitration is banned by Florida Statute Sec. 1001.741(2) on decisions relating to PTR, we included language stating that if this law is invalidated—it is being challenged, an arbitrator should be allowed to set aside an adverse PTR decision if s/he feels the decision is unfair, despite CBA language giving considerable deference to administrator judgment. We argued that this is not an ordinary evaluation, with loss of tenure a possibility.   

All the best,

Arash Fahim, Bargaining Team Member, on behalf of

Scott Hannahs, Specialized Faculty, Magnet Lab, and Jennifer Proffitt, Professor, Communication

Co-Chief Negotiators, UFF-FSU