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Sept 25, 1996 Minutes

Present: Bible, Bourgeois, Caverly, Deduck-Evans, Ford, Hays, Horne,
Hunter, McGee, Pascoe, Sawey, Simpson, Stimmel, Weller, and Winek.

Guests: John McBride and Michelle Massey (Personnel), Tina Schultz
(Disability Services); Prof. Michael Nowicki (Health Adm.); Mike Moore and
Ms. Shirley Pilus.


REGENTS' DRUG USE POLICY (Sawey memo, et al.)
MINUTES OF 9/18/96

The meeting was called to order at 4:01, Chair Bible presiding.


The draft PPS 04.04.30 on staff/faculty leave, distributed earlier,
was explained and discussed. Changes are being made because personnel were
using their sick leave (perhaps for other purposes) and then asking for
sick leave from the University sick leave pool. Applicants are now being
asked to use up to 30 days of their own sick leave (cumulative absences
over the previous six months) before being allowed to be paid from the
pool. Persons who have not been here long enough to accrue 30 days and
those who have used all their leave within the last six months must wait
until the 31st day to receive paid leave from the pool. Emergency leave
will not fill in any illness gaps. Letters from supervisors (who have the
closest knowledge of the situation) must now accompany requests to the VPs
in charge of divisions and the VPs will make final determinations, rather
than the President.

Emergency leaves are for non-illness situations (funerals for close
relatives, jury duty, subpoenas), which will be routinely granted now for
five days (previously this was open). Extensions can be granted by
divisional VPs, with a letter of approval/disapproval from supervisors.
Other emergency situations must be so approved.

Questions were asked regarding: (1) Modified retirement persons
who donated all their sick leave to the pool and then became ill. Answer:
If they are not working at least half time, they are not eligible for sick leave
and cannot draw on the pool. (2) What about domestic partners? Answer: No
sick leave can be taken, but emergency leave could be applied for. This is not
covered by State law, but the President could grant emergency leave for
something extraordinary. (3) Cannot we have a domestic partner policy locally
without the State? Answer: Only under "emergency leave". (4) Why 30 days?
Answer: Because it is a neutral device to be applied equally to avoid charges
of favoritism or discrimination. (5) Could we loan people sick days from the
pool and let them pay back? Answer: This is prohibited by state law. (6) Is
there no leave for funerals of friends? Answer: The Pres. can give
emergency leave but this is an area fraught with charges of favoritism.
(7) Sick leave can be taken for the illness of children (by males & females).
(8) Parental leave is unpaid leave to be taken by males or females. However,
sick leave must be used (if appropriate) while taking parental leave.

The Senate members were asked to collect comments and forward data
regarding leave concerns. RTA'd for next week. [Send in questions and
comments to your senator or the Senate office -- right away.]


The faculty handbook for "Students with Disabilities" has been
under construction for some time and now the draft copy for faculty perusal
is available. The draft handbook reflects the policies which are currently
in operation, but these can be modified. The yellow questionnaire to
faculty is clipped inside the draft handbook for faculty to comment and
return. It has been proposed that a 37-person committee (a representative
from each dept.) be appointed to revise according to suggestions within the

It was pointed out that the handbook seemed to be stating blanket
policies, rather than case-by-case discovery. Answer: In fact, we do
case-by-case analyses of students and the disabilities relating to a
particular course (e.g. dyscalculus problems would affect only math
classes, etc.).

The major problem seems to be that check-off forms from the
Office of Disability Services (ODS) are being viewed by students and some
faculty as the only option for faculty to follow if they do not want to be
sued for discrimination. Indeed, there may be a range of legally acceptable
options, for the Americans With Disabilities Act provides that students with
limitations created by disabilities are entitled to the "reasonable accommo-
dation" of those limitations, not to any particular accommodation.

For example, if faculty perceive that tape recorders inhibit class-
room response if they ask for personal experience, then note-takers could
be provided for students -- but what if the student insists that that is
not good enough and wants a recording? What is the faculty person to do?
A partial answer was that students are screened for problems in learning.
It was ascertained that there might be a range of acceptable learning
alternatives (e.g. tape-recording or note-takers provided for the student).
Ms. Schultz stated again that students were screened carefully for learning
disabilities and each course would be evaluated separately (e.g. dyscalcula
would apply only to math courses, dyslexia might be applicable to courses
with heavy reading, etc.) Disagreements over whether a student is entitled
to a particular accommodation would be mediated by the ODS. Prof. Hunter
noted that in a clinical therapy setting, therapists and clients are taught
not to expect the "coddling" they get in academia.

[Subsequently Chair Bible sent to VPAAs Smallwood and Gratz a memo
noting concerns expressed by Senators thus far: (1) The Handbook does not
make it clear that the law requires the "reasonable accommodation of limita-
tions resulting from disabilities, not the disabilities themselves"; (2)
The statement on p. 1 of the draft, "There is a legal imperative to accommo-
date qualified students. . . ," is inaccurate and misleading, because the law
in fact requires the "reasonable" accommodation of limitations resulting from
disabilities. Some students think they have a right to demand anything, to
the exclusion of other "reasonable" accommodations. (3) It appears the draft
goes beyond the ADA law and, if this is what we are going to do, it should be
stated up-front that we are going beyond the mandate of the law. (4)
"Several faculty have complained that students have on occasion demanded
certain accommodations when other, less restrictive, reasonable accommodations
could have been made." In at least one case, the ODS backed up the student's
choice of accommodation, despite the faculty person's insistence on another
option deemed reasonable by ODS itself. In conclusion, "The Senate firmly
supports efforts to accommodate the genuine needs of disabled students; at
the same time, we believe that a proper balance must be struck between student
and faculty needs, and that the document must clearly reflect the fact that it
is this balance which is being sought. We are not certain that this concept
of balance is sufficiently reflected in the document."

The bottom line appears to be that we are running scared of lawsuits
on discrimination and some students are becoming knowledgeable about their
ability to use the system (e.g. taking a retest after flunking the final,
one extreme example from our campus).

REGENTS' DRUG USE POLICY (Sawey memo, et al.)

The Senate discussed concerns with section 4.24(8) of Chapter V of
the Rules and Regulations of the Texas State University System, dealing
with the illegal use, possession, sale, or distribution of illegal drugs,
narcotics, or controlled substances by faculty members. The wording of
concern is:

"That an employee is charged in a criminal case, or is found "not
guilty" therein, shall not be construed as prohibiting System administrative
enforcement of these Rules and Regulations." In other words, even if you are
found not guilty in a criminal proceeding, or the case is dropped for lack
of evidence or whatever, the university can still fire or discipline you in
accordance with its own rules. It should be noted that the burden of proof
standard in a criminal proceeding is "beyond a reasonable doubt," and the
basis for the foregoing statement in the Regents' Rules appears to be the
belief that the university should not be precluded from disciplining someone
for drug use simply because that person was not convicted of such use in a
criminal trial involving such a strict burden of proof. The burden of proof
in an administrative proceeding is much less demanding.

The Senate believes that if a faculty member charged with the use,
possession, etc., of illegal drugs is vindicated in a criminal proceeding,
that should be sufficient to preclude the university from firing or even
disciplining that person. Accordingly, The Senate proposed the following
rewrite of the Regents' Rules:

"Illegal use of drugs, narcotics, or controlled substances. A
faculty member who has been found guilty under these rules and regulations
of the illegal possession, use, sale, or distribution of any drug, narcotic,
or controlled substance, whether the infraction is found to have occurred on
or off campus, shall be subject to termination, suspension or other discipline
as determined by the president or the Board. If the best interests of the
students or the university or the System so dictate, the employee may be
immediately removed from contact with students and other employees, pending
resolution of disciplinary proceedings. Exception: A faculty member may not
be subjected to university disciplinary proceedings if criminal charges are
filed against that person and (1) the charges are subsequently dismissed,
or (2) the charges result in a criminal prosecution in which the faculty
member is found "not guilty." That one is vindicated of criminal
allegations of illegal drug possession, use, sale or distribution shall be
construed as sufficient proof of his or her innocence for all purposes."

This will return to the agenda. A straw vote seemed to approve the
above rewording.


Chair Blanchard's letter outlined a problem a distinquished and
active faculty member (Prof. Stanton Garner) who retired elsewhere and
teaches in alternate semesters (pro-bono) has had in achieving parking,
library and computer access, etc. In the short-run, senators who have
checked into this suggest that the LRC problem can be overcome by a payment
of $10 (the English Dept. could spring for this) or they could request an
override of fees which would no doubt be granted. Computer access can be
maintained by an e-mail to Bob Goss to hold the access open for semesters
the professor is not teaching (with dept. okay).

The problem was suggested as even more encompassing by the Senate.
A motion was carried that a subcommittee be formed of Prof. Dunn (because
he is interested in retired faculty), Swinney (now on modified retirement),
and Garner (the prof. retired from elsewhere but hitting roadblocks on
campus) to produce a list of needs for SWT and off-campus retired faculty,
since this is an area not approached heretofore.


(1) Value of teaching: From Chair Bible's memo to Pres. Supple
and VPAA Gratz: ["Many faculty feel that teaching is not accorded
sufficient weight in decisions regarding tenure, promotion, merit pay, and
the like. Now, with the emphasis on increased SCH's and the move toward
larger classes, there is a fear among some that teaching will not only
suffer but be further devalued in decisionmaking process. We would like
to hear your views on this."]

(2) Bonuses--

(a) The PPS on merit and longevity is out of line with bonuses;
bonuses would require two processes of faculty evaluation; morale might
become a problem, given the "sloppy" way merit is currently done (according
to some senators);
(b) The Administration needs to give us a better rationale for
bonuses and a description of how bonuses are to be given;
(c) Apparently the Administration is going to insist on bonuses
(last week the Senate voted to fold the bonus pool into the merit pool, but
it seems this is not what will be happening).

(3) Where have the Strategic Plan dollars gone besides the
$72,000 to the Honors Program and Geography's Ph.D. program?

(4) What does the proposed Distinguished Professorship entail?

The Library allocation formula (Julio Dix) and the Regents' drug
use policy, and university leave policy and students with disabilities
policy are also on the menu.

MINUTES OF 9/18/96

The minutes were approved as read.


Meeting adjourned at 6:00 p.m.

Ramona Ford

Addendum to Minutes

The following comments concerning the discussion in the minutes regarding
"University Leave Policy" were submitted by the Personnel Department.

Changes in PPS 04.04.30 have been proposed. These changes are in response to
request by the President to provide further guidance for extended sick leave and
emergency leave requests. These changes have already been endorsed by PC and
Staff Council. Other revisions to 04.04.30 will be reviewed during the normal
review cycle in the next few weeks.

Proposed changes include:

1. Establishes the divisional VP (instead of the President) as the approval
authority for extended sick leave and emergency leave requests.

2. Requires supervisors to recommend approval/disapproval of extended sick
leave or emergency leave requests to the VP and provide justification for
their recommendation.

3. Changes the 30 day waiting period before sick leave pool benefits begin to a
cumulative period in the last 6 months instead of 30 consecutive days.

4. Establishes that extended sick leave may only be granted after sick leave
pool benefits are exhausted. This prevents employees from using extended
sick leave to fill in the gap while waiting for sick leave pool to begin.
Employees must use their own sick leave for the first 30 days of an illness
or injury. Sick leave pool benefits are award per illness with a maximum
of 90 work days (i.e., 4 1/2 months).

5. Establishes that emergency leave may only be granted for non-illness

6. Establishes that account managers may grant up to 5 days of funeral leave
(for a relative defined in the Appropriations Act). Extensions may be
granted with approval of the divisional VP. Currently, there is no standard

7. Establishes that emergency leave may be granted up to a maximum of 5 days
per fiscal year. This is in addition to funeral leave, jury duty or
subpoena orders.