A Primer for the March 25 Faculty Senate Meeting
My friend and fellow alum, Mr. Michael McNabb, provides the following information:
A temporary reduction or postponement of faculty compensation is the subject of both Section 4.5 and Section 11.4 of the Regents' Policy on Faculty Tenure.
The relationship between Section 4.5 and Section 11 is the subject of
Interpretation No. 3 on p. 27 of the Regents' Policy.
The interpretation states that the "financial difficulty" under Section 4.5 is less severe than the "fiscal emergency" outlined in Section 11. The drafter should have used a more specific reference here because Section 11 as a whole is NOT limited to only a "fiscal emergency."
Section 11.2 expressly states that "the following general principles of priority apply IN ANY FINANCIAL CRISIS." The sentence in Interpretation No. 3 is accurate as long as it is read as a reference to Section 11.5, the part of Section 11 that relates to a "fiscal emergency," the third and final stage of a financial crisis.
It is likely that Section 4.5 and Section 11.4 were drafted by different persons (or, worse yet, by different committees) and at different times. Later yet another person drafted Interpretation No. 3 with less than precise language.
This happens all the time with legislation, so the legislature and the courts have developed rules of construction (to make sense of the statutes and amendments that are the result of the legislative sausage making process). Some of those rules are relevant here:
The legislature intends the entire statute to be effective and certain. Minn. Stat. 645.17(2). (Here the Regents intend ALL of Section 11 to be effective, including Section 11.4 on the temporary reduction of faculty compensation.)
The doctrine of in pari materia is a tool of statutory construction that allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language. In re Welfare of Children of N.F., 749 N.W.2d 802 (Minn. 2008) (Here it would be erroneous to read Section 4.5 in isolation from Section
The headnotes printed in boldface type before sections and subdivisions in editions of Minnesota Statutes are mere catchwords to indicate the contents of the section or subdivision and are not part of the statute. Minn. Stat. 645.49. (Here the "Fiscal Emergency" heading on Section 11 does not limit the scope of the express provisions of that Section.)
Section 4.5 refers only the approval of the Faculty Senate for a temporary reduction of faculty compensation; it does NOT set the voting standard for that approval. Section 11.4 sets the voting standard for such a temporary reduction: an ABSOLUTE MAJORITY of the members of the Faculty Senate or a TWO THIRDS vote of the members present and voting (assuming that a quorum is present).
In any financial crisis the Regents' Policy REQUIRES the administration to proceed in the sequence of stages described in Section 11. In the first stage of a financial crisis the administration MUST consider "alternative measures" that do NOT impair faculty rights. The alternative measures include reductions in expenses, increases in tuition, sales of assets, and borrowing. See Section 11.3.
The administration may proceed to the second stage of a financial crisis (the temporary reduction of faculty compensation) ONLY if the University has implemented ALL of the measures that are required to be considered in the first stage and has determined that such measures are not adequate. See Section 11.4.
Is the administration able to demonstrate that it has taken the actions required in the first stage (the prerequisite for proceeding to the second stage)? Have available alternative measures be taken, such as:
(1) substantial reductions in the costs of administration at the University (now at 40 vice presidents with combined salaries of $8.4 million--see:
(2) substantial reductions in the costs of legal services ($5.7 million to outside counsel in 2009 in addition to the salaries and benefits paid to the 18 attorneys in the Office of the General Counsel at the University--see p. 13 of the Annual Report of the General Counsel at:
(3) the elimination of the annual multi-million dollar subsidy to the athletic department ($4 million in 2010--see p. 5 of the September 3, 2009 report of the Faculty Consultative Committee at:
(4) the sale of UMore Park (on which the administration has spent more than $9.3 million since 2006--see p.7 of the December 2009 report of the Finance & Operations Committee of the Board of Regents at:
(5) the sale of other assets of the University that are not essential to its academic mission.
Such alternative measures could be implemented as part of a long term solution to the financial crisis rather than the one year band-aid proposed by the administration.
Michael W. McNabb
University of Minnesota B.A. 1971; J.D. 1974
University of Minnesota Alumni Association lifetime member