Before the Pima County Community College District Governing Board approved a $3 per-credit-hour increase in tuition for the 2017-18 academic year, leadership moved to limit dissent. So at the last minute, an agenda item was added that restricted discussion.
The move was made to ensure that Board member Luis Gonzales had a little opportunity to challenge the on-going disregard for staff and students by the Board’s majority.
Despite leadership’s best efforts, Gonzales and staff were able to call out the Board for failing both students and staff by rubber-stamping the agenda of Chancellor Lee Lambert. Due to declining enrollment, Lambert’s agenda will be accommodated through a tuition increase and cuts in staff.
Before the meeting began, Gonzales distributed an open letter to the Board, legal counsel and the chancellor regarding the counsel the Board is receiving. The letter reads:
Dear Board Colleagues:
As a member of Pima Community College’s Board of Governors, one of my responsibilities to my constituents is to see that the College is not found liable for failing to provide employees with their fundamental due process rights. I have concluded that the College’s current legal services model was not formally adopted by the Board. Further, the model seriously impedes the Board from rendering objective decisions on the Chancellor’s recommendation for termination of an employee and also prevents the Board from exercising its oversight responsibility to assess the implementation of the College’s practices and procedures for our employees’ rights to due process. Finally, the model creates a serious conflict of interest and a potential breach in the attorney-client privilege so vital to the proper conduct of our Board’s governance and oversight responsibilities.
For these reasons, I again request that the Chair urgently schedule an agenda item to publicly review the College’s current legal services model. This may be at a regular board meeting, or a study session.
In a February 16, 2017 email to the Chancellor, I requested information regarding the College’s legal services model and policy among other items. This past March 17, 2017, I received a memorandum from Mr. Jeff Silvyn, General Counsel, and Mr. Dan Berryman, VC Human Resources, answering two of my key questions about the legal services model. With respect to my request for a review of “All the minutes relative to the discussion and the date in which the Board policy regarding the PCC Legal Representation Model was discussed and adopted by the Board,” they stated that “A review of Board materials for 2012 did not reveal that there was such a discussion. At that time, the Board did not have a role in approving the establishment of new positions. Hiring of the current General Counsel was done as part of the consent agenda along with other proposed hires at a January 9, 2013 meeting. . . .” With respect to my second request as to “The official record of when this Model was approved by the Board and the date it went into effect,” they stated, “Please see the response above. The Board did not adopt a specific legal services model.” Mr. Silvyn and Mr. Berryman specifically redirected my attention back to the 2012 Board minutes in their answer to my second question.
As a newly elected Board member, I found it difficult to understand how a PCC Board would fail so completely in its responsibility to discuss such an important topic before at least approving the model and then adopting a Board policy on it, given the Board’s public commitment to implementing governance review and meeting its obligation to its constituents for openness and transparency. Therefore, I decided to conduct my own research of all of the College’s Board agenda and minutes on this topic. As a result, I discovered that Mr. Jeff Silvyn, who was hired in January of 2013, personally presented various legal models for Board members’ consideration at a Board Study Session held on March 25th in 2013. As you are aware, four members of the current Board did not have the benefit of these extensive discussions.
After the March 25th discussion, the Board at its April 10, 2013 public meeting conducted further discussions with Mr. Silvyn about the recommended legal services model, which, by the way, included a provision for the Board to evaluate legal counsel. However, the 2013 Board decided to table the motion to approve that legal services model. From my research, I was unable to find any evidence that shows that the Board of Governors rescheduled the legal services model as an action item for approval by the full Board. Therefore, it is apparent that PCC’s Board has been operating without a Board-approved legal services model.
Nevertheless, to compound this problem, the Board moved forward to approve a Policy titled BP-6.01 Board and College Relationship with General Counsel in 2014, which essentially codified an unapproved legal services model. The provision for the Board to evaluate its legal counsel, however, had been deleted. To my view, this model and policy causes not only a serious conflict of interest problem but also a potential breach in the attorney-client privilege for our institution. That legal counsel, acting simultaneously as staff, i.e. as an administrator involved in developing, discussing, and implementing policies and generating and processing records, AND as attorney involved in reviewing/drafting disciplinary responses to College employees on behalf of the Chancellor, administrators and staff supervisors and in providing legal advice to administrative staff and to the Governing Board raises the issue that this convoluted situation, for all intents and purposes, erases the lawyer-client privilege that usually attaches to lawyer-client interactions. It is impossible to discern when our legal counsel is acting in his lawyer role vis a vis his staff/administrator role. Once the attorney-client relationship is breached, any discussions involving our legal counsel and PCC administrators and Board members could be deemed to be in the public domain and therefore subject to disclosure per the Public Records Law. This would have serious legal and financial repercussions for our institution.
As a Board member, I expect that the College’s last line of defense against the Board of Governors making an incorrect decision regarding an assessment of an administrative recommendation for termination of an employee, especially on whether an employee’s right to due process has been violated, rests with the independent judgement of legal counsel. Moreover, the Board often decides whether to settle law suits or go to jury trials based upon legal counsel’s advice and assurances that all due process steps have been properly followed. However, under the current legal services model, our in-house legal counsel is actively and intimately involved with these disciplinary cases throughout the grievance or complaint process whereby he has provided legal advice and assistance to administrators and the Chancellor well before he provides his final recommendations or legal advice to the Board of Governors.
Three recent court cases clearly illustrate this point. The College’s administration and legal counsel failed to discern that College employees’ rights to due process had been violated before recommending a course of action to the Board. Those cases included Katz (Order No.CV-14-0215-TUC-CKJ, July 25, 2016), Cuyugan (Order No.CV-00260-TUC-RCC, March 1, 2017), and Stoner (Civil No. 4:14-CV-o2456-RM, July 2, 2015). These rulings make it clear that PCC’s Board members cannot “avoid liability” in regard to our individual oversight duties. In fact, a plaintiff initiating legal action against the College may name individual Board members in their personal capacity as well as their spouses as co-defendants, as has occurred in PCC’s past. Had the Board of Governors had access to the services of its own attorney, a second opinion and independent assessment of the facts surrounding these cases may have resulted in different Board decisions. Overall, the time and money spent by the College, its employees and taxpayers may have been saved, and in at least two cases, the jobs and reputations of two employees may have remained intact, and the College’s public image may not have suffered needless negative stories in the media.
I remain hopeful that the changes initiated by our College’s administration will correct the procedural deficiencies found in the rulings from the federal court cases over the past two years. However, the underlying issues in these cases cannot be remedied solely through changes in administrative procedure. Prompt action by the Board is necessary to rectify the manner in which this legal services model and its companion Board policy were mishandled by the 2013-2014 PCC Board; the structural problems inherent in our legal representation model need to be corrected; and, the shortcomings in Board oversight for which the federal courts said the Board itself is unable to avoid liability must be addressed.
Gonzales had asked the Board Chair Mark Hanna for a discussion of his concerns, but Hanna refused. The matter will now be placed on an agenda in June.
Gonzales also expressed concerns for staff. He believes that if leadership has its way, administrators will “be able to dismiss faculty at will without following any policy.”
During the Call to the Audience portion of the meeting, mathematics instructor, Matej Boguszak addressed the source of Gonzales’ concerns. Boguszak had earlier advised staff that “none of the new academic leadership structure, positions, or compensation would be adopted into policy.”
Boguszak said that his Meet and Confer team “were kept in the dark,” as administration developed a “reorganization plan.” The administration has argued that the new plan is necessary due to declining enrollment.
Due to the tight rein on discussion, and a Board majority that acts as a rubber stamp, it is unlikely that the College will find other solutions to its money woes other than stripping faculty of protections and increasing students’ tuition.