Report on Regents Meeting
President, Council of UC Faculty Associations
CUCFA spoke at the July 15 Regents meeting.
We called attention to our lawyer’s letter, which says that the Regents would violate their own rules by acting on today’s agenda items. More specifically, adopting J1 (amending Standing Order 104 to allow declarations of “financial emergency”) would violate Standing Order130.1 requiring notice and a copy of the proposed amendment at the prior Regents’ meeting; adopting J2 (the declaration itself) would not follow the step-wise procedure set forth in J1—a procedure that cannot commence before J1 takes effect.
The Regents made a detailed, public response to our legal arguments. General Counsel said that the emergency powers proposal discussed at the May Regents’ meeting constituted the prior notice of the present proposal. But he then hastened to amend the present motion to adopt J1 to include an explicit waiver of Standing Order 130.1 that requires notice and a copy of the proposed amendment at the prior Regents’ meeting. This week’s agenda anticipated a need to waive the notice requirement if someone complained that 130 was not followed. (In its letter to faculty on July 8 the Academic Council had “particular concern” that it, and the “broader Senate,” will not have an opportunity to comment on the final plan to be presented to and voted upon by the Regents.”)
Lieutenant Governor Garamendi asked a series of questions, “just to be clear” about what the Regents were being asked to do in amending J1 in response to CUCFA’s objection. He pointed to specific differences between the present version and the May proposal, and extracted admissions that these changes are significant; he then asked when the present version was made available to the Regents and was told (according to my notes), that the relevant date was July 2, although the document may have been “finalized” earlier. Whether or not this date is accurate, Regent Garamendi’s questions established that the only way to pass J1 this month is by invoking By-law 7.3, which allows waiver of notice by a 2/3 (not a majority) of all Regents (not merely those present) at tomorrow’s meeting. If this occurs, J1 will now say that the normal notice period was waived by action of the Regents—a small “clarification” that hides a major evasion of UC’s normal rules and procedures.
Our effect on J2 (the furloughs themselves) was also interesting. Both General Counsel and President Yudof indirectly conceded CUCFA’s argument that J2 cannot be passed under the authority of J1 (as a declaration of “financial emergency”). Their new theory is that J2 falls under the Regents’ “inherent power” and does not (never did) require the Standing Order amendment in J1. If this is so, all the language in J2 declaring a “financial emergency” is irrelevant this time around. It will become relevant only if the “financial emergency” is renewed under the procedures specified by J1.
So today’s action comes down to saying that Regents have the “inherent power” to impose furloughs if they run out of money, and that they have chosen to do so. Mary Croughan carried the ball for this view by arguing that J1 will be a triumph for shared governance because it formally commits the UC President to a process of consultation that he needn’t have followed (but did) in proposing this year’s furloughs. Only once did she mention being obliged to state the Academic Senate’s opposition to both J1 and J2. Much of the meeting was about how much UCOP consulted with her, and how discretionary that consultation was given the inevitability of furloughs.
The fact that the Regents intended to impose the furloughs one way or another does not mean that CUCFA’s arguments were swatted down like flies. Our legal challenge made the Regents change their game, and put forward an “inherent power” rationale that they may not have wished to state. Under this rationale, it is at least questionable whether the language of amended 100.4 applies to this year’s furloughs—particularly the sweeping authority to “suspend the operation of any existing Regental or University policies…inconsistent with the terms the President deems necessary to the proposed implementation” (italics added). President Yudof today asserted that he “always had” all the prerogatives stated in J1, presumably including this one.
This extreme language raises the further question of what “inherent power” the Regents exercise when they impose furloughs. President Yudof’s original proposal (in May) included the power to impose furloughs alongside regental power to protect public safety after an earthquake or fire—essentially, to act as a local government would in such circumstances. “Financial emergencies” were just an example of the disasters with which the Regents might have to deal. On July 15, however, President Yudof said he didn’t need new powers to deal with other kinds of disaster. Did he need them to protect the financial health of UC? The California Constitution already gives the Regents power to “insure the security of its funds.” (Art. IX. sec. 9). This is also their fiduciary duty as trustees. But the existence of such a power and duty doesn’t imply that the Regents can suspend any of their own rules and policies merely because UC (or any part of it) is temporarily short of funds for any reason–including overestimates of gift income or mismanagement of an auxiliary operation that should be self-supporting.
So why speak now of “inherent” regental power? The Constitution explicitly grants the Regents “full powers of organization and government” (Art. IX, sec. 9). But this most narrowly means that they can make the rules by which they are governed internally, and change whatever rules they can make. It doesn’t necessarily mean that they can break their own rules (or waive them) with sufficient expressions of regret. Even if UC can claim an “inherent” power to deviate from its own rules—especially when necessary to uphold academic freedom—the Regents certainly don’t need such a power to furlough employees when they run out of money. In such circumstances they should be more, rather than less, rule-bound—especially with respect to rules they made for themselves—and much less grandiose in claiming expanded power to deal with the stakeholders (employees and also students) on whom they are reneging.
We know that President Yudof, the Regents and the Chancellors are pained and embarrassed about the continuing decline of UC that makes it unable to pay employees in full. A large part of the blame for this decline lies with successive legislators and governors who have drastically reduced UC per student state support. Privatization was supposed to be the alternative. But even yesterday, it was simply assumed that privately-funded activities should contribute little, if anything, to replace state funds for higher education. Because UC’s self-supporting activities are considered to have potential for financial success, UC’s administrators continue to suggest that it is appropriate to subsidize them from state funds, but inappropriate for them to pay back all or part of what they “earn.” Privatization isn’t working if it doesn’t fund the University’s public mission, and it is counterproductive if it commits public funds to subsidize temporary or permanent losses in activities that should be self-supporting.
UC faculty should be increasingly vigilant after this weeks’ Regents Meeting. The language of “emergency” is a bad way to think about a decades of financial decline; and the possibility of a renewable, perhaps permanent, “emergency” can provide cover for a new normality in which UC’s administration is less bound by established rules and procedures. I do not think that this is the intent of this weeks’ action—the Regents have to pay their bills—but what has happened will diminish procedural safeguards when they should, rather, be increased.
The Regents’ last-ditch reliance on “inherent powers” to authorize this year’s furloughs calls into question the integrity of the process in which vast segments of the UC community (including. the Academic Senate) participated in good faith. That process did indeed produce some changes in the furlough proposal—most notably a graduated scale and protection of the retirement formula—but, the shared governance process was clearly insufficient if Senate input inconsistent with the furloughs could be disregarded or redescribed as mere misgivings.
In addition to the process that took place this year there must be vehicles of representation that provide an opportunity to oppose and resist the inevitability of UC’s decline. We hope that many Regents will move beyond lamenting the need to choose between furloughs vs. layoffs, and join us in demanding that the future of California’s Master Plan promise be put before the public as a fundamental choice.