Tuesday, May 25, 2010

On the proposed code changes

As many faculty know, the Board of Regents will consider at its June meeting three proposals to modify the System Code which will have the effect of empowering the Board to reduce faculty pay, including but not limited to furlough, during or in the absence of a declaration of exigency in the case that the state legislature mandates a pay reduction for all state employees.

The current texts were produced through many weeks of consultations between the System Vice-Chancellor Bart Patters and faculty leaders consisting of the Council of Faculty Senate chairs and NFA representatives from each campus.

The proposals are complicated and there is a good deal of consternation about them, including some who assert that the NFA is "supporting" pay cuts. This is not the case, of course.

Here's my view of the texts now under consideration and why they are vastly preferable to the original versions.

The original proposals were for three amendments.

One amendment (to 5.4.5 of Title 2 of the Code) specifies that faculty can "have pay reduced" in the case of a declaration of exigency. The current code language does not specify that option. My view then, and I believe the consensus of everyone who read it, was that it was largely unobjectionable because it seems evident that under a circumstance in which people can be furloughed or laid off, they can have their pay cut too.

1.1.1(h)The second amendment, to the definition of "financial exigency," now specifies that budget cuts by the state legislature of "greater than 10% in general fund appropriations" to NSHE "are deemed sufficient" for the Board "to consider whether a condition of financial exigency exists." This was modified from the original language, which stated that a reduction of 10% would be understood to place us automatically into a state of exigency, even without a Board vote. The current version simply states what is self-evident, that a cut of 10% requires a consideration of exigency, and the reality is that if we get another 10% cut next spring, we will almost certainly be in exigency. Again, this one is largely unobjectionable in its current form, and a clear improvement over the original version.

The controversy was over the third amendment, to 5.4.5 (b). The original version of this proposal simply stated that a pay reduction for state employees passed by the state legislature passed through directly to us, again without a need for a Board vote. In my view, this would have handed a loaded gun to the legislature to consider cutting our pay, even in times when the state is flush. It also would have put no provision for restoring that pay or for any other consideration; we would simply be at the mercy of the state government.

Over the course of several meetings, a number of provisions were added to improve this text. Most importantly it requires the Board to vote "based on the recommendation of the Chancellor and presidents, after consultation with the faculty senate, and must be due to budget reductions." So that it couldn't happen unless the state cut the NSHE budget, and we'd have not only the opportunity to weigh in directly through the senates but also through the presidents, chancellor and regents -- a much better terrain for us to be fighting on that in Carson City. In addition, the new language requires the Board to "consider methods to maintain recognition of base pay" to restore base pay when budgets increase, and to consider whether workload should be decreased to compensate us for the cut in pay. It also limits the reduction in pay to 6% within a biennium or from one biennium to the next; any further pay cuts, or a repeated cut in pay of 6% or more across two biennia, would result in the Board considering whether or not it needs to declare exigency.

It also requires the Board to reconsider any cut in pay approved under this article if an exigency is subsequently declared, so that it is clear that the intent and only use of this measure is as a means to avoid exigency not as a precursor to exigency or an alternative form of exigency.

It is odd to me that the primary objection to this current language is from those who say that if the Board wants to cut pay, it should have to declare exigency to do so. A) Under exigency, the Board can -- and almost certainly would -- do much more than cut pay; it can lay off faculty including tenured faculty; and it can make other revisions to the Code or our contracts much more readily. The NFA legal council advises us that exigency is a "declaration of martial law" and at the same time a signal to the rest of the country that we are unable to function; it really should be avoided at almost any cost. B) Those who oppose this language because they want the Board to declare exigency in order to cut pay are ignoring that the alternative is not inaction; it is either the original "pass through" language which it seems to me would almost guarantee a regular fight to protect our pay on the hostile terrain of Carson City or the "financial distress" alternative under which not only would pay likely be cut but notification periods for pro-staff and untenured faculty would be eliminated.

Lastly a word about process. Senate chairs and NFA reps were invited to participate in this process so that such a significant proposal would not come to the Board without faculty input. Not only did we give input; we gave weeks and weeks of it, and almost everything suggested was put in at some point and discussed further. The one parameter that was clear from the Chancellor's office was that they wanted to address this issue before the new contract year starts on 1 July.

Moreover, to walk away from that process strikes me as a much bigger risk -- to the credibility of faculty leadership within the System -- than even exigency or an 8% cut in pay. Going forward, if we are going to presume the worst about the Chancellor and the Board -- that they are conspiring to deceive us when they ask us to participate in making decisions -- then we are effectively abandoning shared governance.

So to be clear, the NFA do not support pay cuts. But if the state legislature mandates them, and the Board acts to impose them, it does seem to me that these changes, produced through a process of extensive consultation, are the least intrusive and intolerable means to achieve that goal -- preferable to exigency, preferable to an ad hoc code amendment and preferable to the state legislature being given the power to impose pay cuts on NSHE faculty directly.

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