Appendix F



Submitted by Senator Larry Catá  Backer


This appendix contains questions to be addressed during the forensic session and background information on the subject, accompanied by an Executive Summary.


Date: September 6, 2016

To: University Faculty Senate

Re: Forensic and Comments to Draft HR 80

Executive Summary:

I was grateful for the opportunity to review and provide brief comments to the proposed changes to HR 80, Outside Business Activities and Private Consulting (which follow). I appreciate the work that has gone into these revisions, as well as the good intentions it reflects with respect to the core set of issues, important to the university, to which it appears to be targeted. The comments reflect a fundamental notion of regulatory governance recently underlined by Chief Justice Roberts: “we cannot  construe  a  criminal  statute  on  the  assumption that  the  Government  will  “use  it  responsibly.”   (McDonnell v. U.S., slip op. June 27, 2016). The comments highlight textual and policy challenges in four broad categories.

  • The first are the ambiguities of definition and substantive application that provide little guidance even to those faculty determined to comply. Alternatively, those ambiguities will produce traps for the unwary over-reporting and under compliance.
    • Outside Business Activities
    • General Area of expertise
    • Three category system potentially constrains outside expressive activity even beyond contract period (definition of Category III activities)
    • Traps: (“Category II activities do not require prior approval unless, alone or in aggregate with other Category I and II activities, the time commitment will exceed the monthly time limits”)
    • Effective blanket prohibition of Category I activity (and Category II as well) (OBA ¶5)
  • The second are the substantial delegations of authority to administrators under this provision. That discretion is not subject to any accountability nor does it provide a mechanism for uniform application of interpretation of the policy as these develop over time, especially where the policy itself reveals tension. No process for appeal.
    • Administrators exercise full control over application and interpretation of the provisions.
    • No standards to constrain discretion; no “reasonableness” provisions
    • No mechanism to hold accountable for abuse of discretion
    • No procedures for explanation for denial of requests
  • The third touches on data gathering and use. The university should consider being more transparent about both the extent of its data harvesting, and its intended use.
    • One way street
    • This double objective in HR 80 creates reporting burdens
      1. The fourth touches on policy choices. HR 80 appears to assert a broad power in the university to control faculty’s creative work with a power, in its discretion, to create a waiver.

        From: Larry Backer
        Sent: Wednesday, August 24, 2016 11:33 AM
        To: Hagen, Daniel
        Subject: Re: Your forensic

        August 8th email questions follow:

        Hi Folks

        I hope your respective summers have been going well.  I write only to provide the notice necessary under our Standing Rules (art. I § 7(b)) of my intention to conduct a forensic session relating to the recent proposed changes to HR 80 at the first meeting of the Senate scheduled for September 6, 2016. I will ask the following questions as the framework for that discussion:

        1. The problems of administration–unchecked administrative discretion, traps for the unwary, scope of coverage?
        2. Proposed necessary changes: including a review process; limiting the scope of HR 80; more robust consultation?

        The concept and comment paper from which these questions are drawn is also attached.

        I look forward to seeing you all again in due course.

        All the best


        Larry Catá Backer
        Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs
        Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802


        Date:   July 18, 2016

        To:       Clint Schmidt, Assistant Director, Office for Research Protections

        Jim Strauss, Chair University Faculty Senate

        Re:       Comments to Draft HR 80

        I am grateful for the opportunity to review and provide brief comments to the proposed changes to HR 80, Outside Business Activities and Private Consulting.  I appreciate the work that has gone into these revisions, as well as the good intentions it reflects with respect to the core set of issues, important to the university, to which it appears to be targeted.

        I take as my starting point the statements most usefully provided through the PowerPoint presentation made to the University Faculty Senate Council on June 28, 2016.  That presentation suggests the quite narrow focus of the scope of revision communicated to ORP by the Provost—namely (1) to enhance the ease of disclosure and approval by the objects of this policy, (2) to augment the data harvesting that such disclosure and approvals might generate for University administrators (who, as I understand it, would be the only individuals with access to the data); and (3) to enhance administrative coordination with respect to the subject of HR80 by centralizing its administration in ORP. For that purpose, ORP relied—to an extent that remains unclear—on the practices of a benchmarked group of 24 unidentified peer institutions. In addition, ORP sought input from virtually every sector of university administration, and those faculty that it appears were identified as a target group (“faculty members involved in consulting”)—and now, having advanced this project to what appears to be its final stages, when substantial changes are unlikely to be considered, it has come to the institutional representatives of the (rest) of the faculty to seek its input as well.

        This commentary is based on the assumption that it is far too late in the day to engage in substantial discussion of either the policies underlying HR 80 and its related provisions, and that the purpose of this call for commentary is, beyond the pro forma observation of shared governance, is to double check against inconsistency or error in light of the choices that have already been made as to substance and implementation. In that light my comments are divided into four broad categories: (1) issues of process in consultation and the regrettable approach to consultations of this kind at Penn State; (2) the related issues of ambiguity and unfettered and unconstrained administrative discretion that in my view are a fatal weakness of this entire project whatever the value of part of its underlying rationale; (3) the few inconsistencies and contradictions in the written body of this HR80 and its Policy section; and (4) data collection and access.

        Lastly, I note, with continued regret, the continuing failures of this administration, following the course of the last one, to provide a set of guidance to the application of this HR80 that is fair and reasonable.  I urge, if nothing else is done, to work toward the development of such a binding set of guidance in partnership with the faculty on whom such policies will be applied—and that such development include faculty from the point of conception rather that at the tail end of a prolonged process of development when there is very little of substance that faculty can contribute.

        1. Process and Consultation Generally.

        And from that structure emerges the first observation of this memo—it is a matter of some concern that the institutional representative of the faculty was not consulted until this very late stage in the development of even this quite limited effort at revision.  It does not speak well for effective shared governance.  Indeed, it suggests that while administrators and others especially selected may be more robustly engaged in the construction and thrust of the revisions, the faculty as a whole, is provided something that appears to be a more pro forma role.  My initial response, as a result, was to ignore what would be only a drain of my time—for whatever substantive comments I might make would be noted, at best, and viewed as inappropriate, untimely or irrelevant to the purpose of permitting this late in the process review.  But it is worth reminding that such efforts make a lamentably bad use of a substantial resource at the university. I am well aware that neither person to whom this memo is directed had much authority in this matter.  But it is my hope that this sentiment might be reported to those individuals who have exercised such authority, and chosen to exercise it in this regrettable manner.

        It follows, then, that the mandate for these revisions does not extend to a consideration of fundamental policies underlying the HR 80 policy. Nor was ORP to consider issues of ethics, shared governance, or substantive choices reflected in HR80.  HR80, and its related provisions, creates a regime that, in essence, starts from the proposition that by reason of its employment relationship with faculty and staff, it can control the entirety of the lives of these employees to the extent it might be connected to work. It is grounded on the basic premise that individual employees may engage in activities only to the extent that the university permits it, and that the university may reserve to itself the right to manage its employee’s time—whether during the time they are working or not—and to its advantage, as it sees it. From this starting point—everything is forbidden unless it is permitted—HR80, along with its related provisions, carves out a small area that it concedes to employees. HR 80 represents, in my mind, an effort to kill a cockroach with a bomb.  The effort will affect everything, except perhaps the cockroach itself. And so HR 80 affects everyone at the university—faculty and staff especially—but might well effect least those who most likely were the objects of this effort, individuals who are likely to have been able to secure whatever negotiated arrangement that suits them and this institution.  For the rest, there is an enhanced obligation to serve as sources of data—to what ends is unclear. The provisions themselves continue to produce some substantial ambiguity.  And lastly, the resolution of those ambiguities is left to a middle level bureaucracy, one with substantial discretion that, in the worst cases, might allow individuals to operate with impunity. In this country, this is permitted as a matter of law. But is this level of control, undertaken in this way, right? That question appears beyond the scope of these revisions. This is also lamentable.

        One should note that these issues have been raised on numerous occasions to senior administrators and for a number of years.  The response has included assurances that the intent of these provisions is not as draconian as the words of HR80 might suggest.  Likewise, some of us have been assured from time to time that one ought not to worry about maladministration, or misuse of the authority vested in officials through HR 80 and its related provisions—to do otherwise would be either impolite or insulting to the administrators who devote themselves to the university’s work.  And thus the discussion of bad behavior appears beyond the scope of discussion. Lastly, it has sometimes been suggested that the administration, through some office or other, might produce a FAQ or commentary, with examples, to serve as a constraint on discretion.  These have never materialized. That leaves faculty exactly in the same position as they found themselves before these efficiency and data gathering revisions were delegated to ORP. I will suggest that it might be useful for ORP, under the guidance of those with authority and consultation with affected stakeholders—undertake the task of providing such guidance, especially in connection with the following two substantial areas that do fall within the scope of ORP’s limited mandate: resolving ambiguity, and thus constraining abuse of discretion by administrators. I take these up next.

        1. Ambiguity and Administrative Discretion.

        Like administrative agencies and other governmental organs, large complex universities are discovering—as they become more rule centered—that the drafting and implementation of regulatory schemes can pose certain challenges.  The principle one, for which the government of the United States has developed its own complex but useful set of consultation and review procedures, involves the drafting of rules.  Generally, rules are best drafted when they are tightly correlated to the issue that makes their drafting necessary.  Regrettably, rule drafters sometimes seek to reach far beyond the immediate problem in drafting rules.  That poses two distinct problems. The first is that of ambush and procedural deficiencies mentioned earlier—those affected by the now expanded drafting may have no idea that they have been targeted and no effective means of engaging in the rule drafting process to protect their own interests (and those of the rule making institution). Worse, those drafting the rules have no real way of knowing just how far and to what extent the expansion of rules will affect stakeholders or the operation of the institution itself. The result, in administrative rule making, is rules that tend to work less well than they should and that create a host of problems that then take substantial amounts of remedial rulemaking to repair. The second is that such rules create two additional problems that are harder to solve.  The first is that of ambiguity—broadly drafted rules sometimes collapse within their own flawed logics when one seeks to apply them precisely.  The second is the problem of implementation itself.  The standard approach to ambiguity is to “solve” it, not by better drafting, but by delegating “interpretation” to those assigned to apply it.  The result is a vast expansion of authority to both “judge” and “prosecute” rules that by their nature in the form of HR80 are incapable of either without discretionary decision making beyond the literal words of the rule itself.  In advanced administrative states, like the United States, the second problem has been constrained by the construction of a vast and complex jurisprudence of administrative constraints administered through the courts.  Penn State commits both errors in HR80 without either the benefits of rules protecting process or of an advanced system of review of administrative decision making for abuse.

        Given the nature of this review, I understand it is far too late in the day to “fix” this problem, at least with respect to HR80.  I also understand that the approach that institutions like ours use to “solve” problems has been situational (we wait until something blows up) and ad hoc (the university tales care of specific instances rather than deal with the systemic issues that cause them). But it is still necessary, I believe, that the broader issues of administration be raised as the university transitions from a traditional and conventional institution of higher learning to take on the characteristics of a small governance institution with a complex rule system. I provide a few examples.

        1. Purpose. The purpose section describes HR80 as outlining expectations. That is not quite correct. HR80 sets out mandatory rules through which it manages the ability of employees to engage in economic and other activities beyond their work for the university in all respects unless otherwise exempted in the rule. Its justification—to ensure that all such activities are reasonable and appropriate in light of faculty appointment and the university’s mission provides little limitation other than to reaffirm that faculty appointment somehow constitutes a substantial waiver of rights to control non university activities beyond service to the university itself. More troubling, it provides no substantial basis for understanding the objectives against which the standards that follow are to be tested.

        At its broadest, the “purpose” section signals that its objective is to assert a substantial measure of control over the lives of its employees to the extent the university chooses to treat any employee activity any time and any place as even the most remotely linked to what it may, from time to time, declare to be its interest and the meaning of its mission. This carte blanche declaration of objective is not particularly useful other than as a statement of power under law.  But that something may be lawful does not make it right.  That, in essence, is at the core of the University’s own ethics rules which it has taken great pains to develop, and which appear to assert no influence here. It might be useful, then, for the university to take the opportunity of the “purpose” section not to use it as a brief introduction to a diktat, that follows, but as a space within which it clearly articulates the objectives—specific—against which the rules and standards are to be measured, interpreted and applied.  There is nothing here that aids in that critical function.

        1. Definitions.
          a. Outside Business Activities (OBA). This term is first defined generally and then also further refined within the sub definitions of “private consulting” and “teaching for a third party.” Each of these three definitions suffer from ambiguity.

        First it is not clear what entrepreneurial and professional service means.  It clearly means private consulting.  But it covers substantially more activities than that. That ambiguity is compounded by the term “general area of expertise for which the faculty member is employed by the university.  Moreover, the exception to the “general area of expertise” rule is made more difficult in light of the waiver for such activity where it is “beyond the scope of the individual’s university employment responsibilities.” For example: my tenure home is in the School of Law.  Is “law” my general area of expertise? If so, what is law to which that expertise refers—I work in an area of emerging structures of governance beyond formal conventional law, does that mean that my expertise is not law, or more than law? I teach in very specific areas of law—is my general area of expertise to be defined by my teaching? Or by my writing? Or by my writing for the university for which I receive compensation? Putting that together with the first part of the definition—entrepreneurial service—then compounds the problem: do I engage in entrepreneurial activity when I write a novel about lawyers  and then seek to negotiate movie rights?

        Second, these ambiguities are meant to be resolved in a substantially troubling way—by administrative fiat.  The rule continues to provide that the determination of the area of expertise is to be defined by a designated administrator—without any requirement of justification, without any requirement that unit specific rules are established, and without the participation of the faculty in that unit.  The possibilities of abuse, or even of the mere correction of mistake, becomes either a matter of administrative discretion or otherwise impossible. HR80 in this, as in other areas, appears to be indifferent to the possibility of administrative abuse of discretion.

        Third, HR80 appears to impose the greatest restrictions on the provision of teaching services outside the university—even when the faculty member has already discharged her teaching responsibilities and is otherwise unengaged.  It suggests that the university owns not just the teaching services for which it pays, but also the potential teaching services or outputs for which it has no interest in hiring.  The university effectively takes the position that it has the authority to prevent an individual from exploiting her own labor, even after that individual has discharged her obligations to the university for which the university has provided compensation.  That this is permitted by law does not make it right—and to the extent it produces hardship—by effectively constraining the ability of an individual to sell her services, substantially reduces her utility. The university has the right to get full value for its money, and its interest is strongest during the faculty appointment period. But such a restriction might be more narrowly drawn, especially when it touches on activities beyond the appointment period and during such time as the faculty member is not otherwise engaged or expected to be engaged in university activity.

        At its broadest, and taken together, it is possible to read “outside business activity” as any activity touching on or related to a general area of expertise. That would be broad indeed. I suspect that was deliberate—and an effort to pick up all activity of even the slightest connection to expertise.  The object appears to be to ensure that all activities engaged in by faculty outside of the university must be capable of categorization as a Category I, II, or III activity.  That means that first, the university asserts the right to control all such activity, and that all such activity must serve, at a minimum, as a source of data gathering, subject to a limited exemption that is otherwise picked up in HR 40 Reports. But this is conjecture because it is not clear that the words of the definition mean this.

        More importantly, ambiguity serves as an instrument of administrative discretion.  In effect, since it is the administrator that determines whether any activity constitutes OBA, and since such determination is not subject to review, the definition of OBA in an individual case will be exactly what a middle level administrator says it is—nothing more and nothing less. Yet that produces an absurd result—the meaning and application of the rules may vary substantially among units.  More importantly, such a broad discretion, with no accountability and review mechanism, can serve to veil abuse and protect it from any challenge. This represents a substantial and troubling lack of fairness and process protection. At a minimum, some process for challenging administrative determinations ought to be built into HR80.

        Category Activities. This term is meant to divide the range of OBA into three distinct categories that together, I imagine, would include all possible OBA. There are several ambiguities and lacunae worth mentioning if only briefly. As a general matter three concerns touch on each of the categories:

        1. The university appears free, in its sole discretion, to change or eliminate these categories. There are no procedures for the establishment of standards to guide those changes or to ensure substantial engagement with stakeholders before that is done.
        2. There are no constraints on administrative discretion in the event an administrator deems the reporting and approval rules violated.
        3. There are no procedures for appeals from exercises of administrative discretion.

More specifically, the drafting of the provisions relating to the Categories might also raise a number of issues as follows:

First, Category I clearly appears to be the operational heart of HR80.  Were it to be reduced to its essence, HR 80 might read simply that “the following activities require university approval because they are deemed to have a substantial potential to adversely affect the employment relationship with the affected employee, they might adversely affect the university’s mission, or conflict with its operations.” But, of course, the rule in which this simple objective is embedded is far more baroque.  It raises the following specific issues:

  1. The university ought to be required to articulate the reasons for denial of approval. And the University ought to held to its reasons thereafter.
  2. Denial of approval ought to be subject to appeal—from a reviewing body outside the department in which the decision maker exercises authority. That reviewing body ought to include members of the faculty and administrative personal, neither from within the college from which appeal is taken.
  3. Approval should be constrained by a reasonableness provision—that is approvals will not be unreasonably withheld. The university has no reason to withhold approval unless its interests are actually and substantially affected.  To impose any other standard would be an arbitrary exercise of power without any ethically sustainable purpose.
  4. There are no standards against which to exercise discretion in approval.  This is especially troubling when dealing with membership on boards of directors of non profit organizations—is it enough that the administrator despises the mission of a non profit organization, or should it be limited to organizations that are engaged in criminal activities.  As it stands, the university may, without reason, disapprove my appointment to the board of the NAACP, NRA or Amnesty International—all internationally recognized but sometimes controversial organizations, without reason and without a basis for divining the standard used to make that determination. That the university would assert such authority itself might raise constitutional issues connected to the right of citizen participation and the right of association.  The issues become more complex when, as under the rule as currently formulated, a faculty member must apply and could be denied membership on the board of a local church or religious organization.   Standards, with appropriate and well thought out carve outs are a necessity, unless the university is inclined to the sort of situational and ad hoc regulatory clean up that is both inefficient and which can have significant negative effects on the university’s reputation with outside stakeholders.
  5. The last item for Category I “teaching for a third party during a faculty appointment period” is both overbroad and quite capable of arbitrary application and administrative abuse. My guess (and that I have to guess speaks ill of the effectiveness of the drafting) is that it is meant to prohibit dual teaching situations—that is where a faculty member engages in full time teaching or its substantial equivalent at more than one institution simultaneously. I can further surmise (again that I have to surmise speaks ill of the drafting) that the university—without data or other evidence—has concluded that such action adversely affects the quality of its “investment” in the faculty employee, that is, that it diminishes the productivity expectations for which it pays the employee.  That may well be reasonable.  What is not reasonable is that the equivalent of the consulting monthly time limits do not apply (and without any justification for the difference).  No explanation for the different treatment is provided. That produces some curious results, though also technically bound up in this category, including: (1) teaching in religious institutions (e.g., Sunday School classes); (2) volunteering with others to teach disadvantaged students, for example; (3) preparing and engaging in brief short courses with colleagues or alone for individuals who are not registered students at the university, either live or otherwise.

Second, Category II appears to serve the data harvesting mission of HR80, though that is not made clear. It appears to require disclosure of all activities that an administrator, in her discretion, determines to be part of a faculty member’s OBA.  There are some issues that might be considered in relation to this requirement.

  1. Little thought appears to have been given to the administrative burden of thus reporting.  It costs an administrator nothing to demand reporting and disclosure compliance.  But the faculty member receives no credit for the time and effort required to its production—and the effect it might have on teaching, service and research productivity.  Were this standing alone the issue might be de minimus.  But added to the substantial amount of reporting now down streamed to faculty, the cumulative effect on productivity may be substantial.  And it is unexplored.
  2. As a technical matter the categories appear redundant.  Given the breadth of the OBA definition, it is not clear what the other three items add (expert witness, licensed profession and teaching).  These are already included in the OBA definition.  Are they meant to be highlighted?  Or as is more likely, are these categories separated for the convenience of data harvesting.  If that is the case, then the better approach might be to work up a more useful reporting form that captures more efficiently the data collection objectives that are meant to be served by this Category II reporting requirement.
  3. It is not clear what the extent of the authority of administrators may be to sanction violation of these rules. It might be useful to specify, if only to constrain and better manage administrative discretion and to reduce the likelihood of otherwise unaccountable administrative abuse. As it stands, HR80 provides for administrative consultation—without any process protections—for the determination of appropriate sanction for violation (Noncompliance”). It may include consultation with the “Faculty Consulting Program” though that may be of limited value where the violation touches on matters other than consultation. But these are focused on administrative convenience rather than due process protection for employees. But where, as here, the authority is embedded in administrative operations within a rules based governance framework that is much more governmental in character, it should follow that the constraints on abuse wisely imposed on governments also apply.  In this case, and at a minimum, that ought to require greater protection against the conflicts of interests between those who control enforcement and interpretation and those who have no recourse against the potentially self-interested application of either. The reference to “in accordance with all other applicable University policies and procedures” provides neither guidance nor constraint—and it leaves to the interpretation of the administrator the extent to which this applies at all.
  4. There is a trap for the unwary, and from my perspective a bit of overreaching, embedded within the actual articulation of the HR80 policy.  While it appears that Category II activities do not require approval—buried near the end of HR80 is a provision which is not highlighted: “Category II activities do not require prior approval unless, alone or in aggregate with other Category I and II activities, the time commitment will exceed the monthly time limits” set forth for consulting—which now appears transformed into an overall limit of time spent on any activity that does not benefit the university. This effectively transforms Category II activities into Category I activity with respect to the consulting time limits.  It is not clear, then, whether Category II exists at all, from a functional perspective. Moreover, it suggests an overreaching and intrusion into employee private life that while in its extreme form may be legal, may not be morally justified. No explanation is offered for this imposition.  No warning is given about the way in which the limits on consultation is now transformed into a categorical cap on life activities that do not serve the interests of the university.  And no justification is given for the devolution of the authority to control employee life to this extent delegated to university administrators who may operate without constraint, with impunity and whose abuse—as rarely as that might be deemed to occur—offers little effective redress. Most likely, once aware of this constraint, the HR80 policy itself provides a perverse incentive to underreport. Unless the university is prepared to devote substantial resources to policing, the provision will do more harm than good—starting with the encouragement of cultures of disrespect for the rules and the administrators who deploy them to suit their interests (at least in the eyes of the faculty burdened by their application). It might have been useful to better tailor this to the specific sorts of abuse the drafters had in mind rather than produce these baroque institutional control mechanisms that appear far removed (and abstracted from) the no doubt important problems that gave them life.

Third, Category III appears to include what the drafters conceive of as the core of what a “model” faculty member ought to be doing on her own time, to enhance the value and reputation of the university (and for which the university appears to take the position of free rider). That is certainly within the university’s prerogative—in deep consultation with faculty since these matters touch both on academic freedom and shared governance with respect to which the university is also constrained by other policy and rules.

  1. There is little guidance to avoid administrative recharacterization of the items described in category III.  An administrator, for example, might choose to treat an event as falling outside the “presentations at professional meetings or other similar gatherings” where the faculty member takes a different view.  There is no mechanism to resolve the interpretative disagreements or their application in context.
  2. The category “unpaid scholarly collaboration” appears both too narrow and subject to abuse.  For example, if a sister institution pays the travel and accommodations of a Penn State faculty member to collaborate, does that change the character of the collaboration for characterization as a Category II event? Does it make a difference if the collaboration touches on teaching, research or service?  Does it make a difference if there is no immediate “product” that emerges from the collaboration? Clearly the drafters had something in mind when they used this phrase—but they wrote broadly and their specific meaning is lost.  The same issue applies throughout the section. For example, it is not clear why “conducting workshops” is limited to professional societies.  Perhaps that reflects the experience of the drafters and those they choose to consult.  But it does not explain why such workshops may only be offered to professional societies. And it leaves to the determination of the administrator whether, indeed, the organization constitutes a professional society within the meaning of the rules. There appears to be no sound reason, for example, that such workshops ought not be offered to international organizations, to civil society organizations, to religious schools, and the like.  Yet this over narrow provision would by its terms appear to reclassify those workshops into Category I events for which approval is required, for which approval may be denied without reason and without cause, and with respect to which the approval mandatory time constraints might apply even if such involvement occurs outside the contract period.
  1. The Policy of HR80.

HR80 appears to concede ambiguity in interpretation and application.  Its solution to that problem is to vest unconstrained discretion in administrators. It is not clear why that offers the best or fairest solution to an interpretation issue.  Indeed, one might posit that such an administrator is in an inherently conflicted position when asked to provide such guidance.  She serves, in effect, as both executive and as the judge of her executive decision making.  That conflation of rules is inherently suspect and might indeed be troublesome under our ethics rules.

A better solution would be to place the function of interpretation beyond the power of those who must apply the provisions.  That would require creation of a mechanism whereby any administrative determination may be reviewed. Beyond fairness for faculty, these would enhance institutional operation by imposing the discipline of policy coordination throughout the institution—permitting decentralization of implementation while retaining a centralized control of policy.  It would be odd, indeed, to centralize the data function in ORP, while tolerating policy anarchy for the development of substantive application of the rules. It must be underlined that this is necessary where, as here, the university has determined that it will now function as a complex rules based institution. That invitation to policy and implementation incoherence ought to be reconsidered. And, given the choice implied in HR 80’s constitution, it will have to adjust its internal administrative cultures to conform to the legitimacy enhancing rules that apply to large, complex, rule based institutions.

There is an ambiguity between the approval rules of Category I with respect to consulting, and the second paragraph of the Policy section that purports to set time limits on consulting during a faculty appointment period. Category I appears to require approval ONLY for consulting in excess of the monthly time limits in the Policy section.  That suggests that consultation WITHIN the time limits constitutes a Category II event. Yet the Policy section implies that all consultation, whether Category I or II, requires approval. That may require a simple change in language, or a more inclusive and honest policy discussion.

The constraints on the quality of OBA, whether or not subject to university approval, presents a set of more troubling issues.  First it presumes that the university ought to have the power to control lives in OBA related activities (now quite broadly construed) in ways that may substantially exercise a control of virtually all of the lives of its faculty.  At its extreme this suggests forms of indenture that ought to trouble a university with a public mission, even if it may be within the legal right of an employer to assert such substantial reaching into the lives and activities of its faculty. Yet this is precisely the conversation that the university has not had with its faculty. And that may well affect the legitimacy of its actions—expressed through efforts to evade or the lowering of morale (and through that the reduction of productivity).

Beyond that, the constraining categories are so broadly worded and porous, that it permits an administrator almost unlimited discretion to transform any activity into an OBA activity, and any OBA activity into a non-conforming event.  And the administrator may do this with impunity.  For example—in the hands of an administrator of little experience or poor judgement, the standard “should enhance his/her professional stature or academic proficiency” can be used to substantially control academic choices, and in the most extreme cases interfere with academic freedom. What, after all, does “enhance” means?  And in whose interest?  These are issues that ought not to be left to ad hoc decision making of administrators without substantial guidance and review. And at a minimum it ought to require some substantial and written justification for decisions on the basis of a well-reasoned application of standards.

And then there is OBA standard (5) which requires Provost approval of consulting in excess of the maximum hours set forth in the Policy Section.  At a minimum this sets up a trap for the unwary.  Category I implies that it is possible to set approval of consulting in excess of the time constraints set up in the Policy Section.  The Time constraints of the Policy section do not suggest that these are inflexible.  And it requires reading the “fine print” well into the OBA standards to discern the possibility that the university effectively will always disapprove consulting in excess of the Policy time limits.  It would have been kinder, and might have avoided misunderstanding to make the policy clear—and then to be prepared to debate its value to the university.  Instead, the actual operating provision with respect to consulting—that only the Provost can approve exceptions under Category I and that the policy invites him to disapprove in ordinary course—now appears buried in a section that might be missed.

The time issue becomes more complicated when one also considers that the university extended its monitoring into non university activity beyond the appointment period with respect to any teaching (“any third party teaching in the months following a nine month appointment”). The effect appears to turn all teaching outside of the university, no matter how insignificant, into a Category II event, whether or not it occurs within the appointment period. Beyond definitional issues (e.g., does this include workshops for post grad students that last a few days, etc.), the justification for this provision is unstated.  One can surmise that the university seeks information about teaching whenever undertaken as part of its data generating objectives. The university might also be interested in seeking to determine the extent to which such activity might be recharacterized as something that ought to be managed or constrained.  Transparency might suggest that the university would obtain greater cooperation should it be more transparent about its motives.  And, indeed, the faculty would be happy to work with administration to ensure coordination of appoint period and non-appointment period teaching.  It might even be willing to consider a right of first refusal for non-appointment period teaching—assuming the terms were equal to those offered elsewhere.  But in this case secrecy breeds inefficiency, and reducing any potential for shared governance cooperation that might make these policy determinations better for everyone.   It might have been useful for the university to be more forthcoming, especially since such activity does not appear to be forbidden or require permission.

Lastly, the invitation to align the conflict of interest rules and the HR80 rules is awkward at best.  The conflict of interest and of commitment rules are troublesome in their own ways—and for many of the reasons of unfettered discretion and ambiguity suggested in this analysis.  Financial conflicts of interests rules are straightforward.  And necessary. Beyond a well defined and tightly drafted conflict of financial interest, broader reaching can quickly devolve into overreaching.  The problem, of course, is the fundamental one—what does the university buy when it employs a faculty member? The university, naturally would tend toward an indenture model.  The employee would tend toward a purchase of services model.  The law permits something close to indenture—as unpalatable as that might be as a matter of ethics, policy and political culture in the United States today.  But again, this basic conversation—and the disclosure of its effects, is one the university has failed to have with its stakeholders on whom it will impose its sense of rules for its best interest without substantial engagement by those who are crucial to the realization of that interest in the long run. And that is a pity.

  1. Data.

Beyond control, the stated purpose of HR 80 is to generate data.  It might have been useful to have generated data sufficient to justify the breadth of these provisions before enacting.  But that is water under the bridge.  Now the university will use its faculty to generate data that the university will use for its own purposes. Fair enough, and no doubt potentially useful.  But it raises the issue of availability.  HR870, like most provisions of this sort, restrict the availability of data to those administrators who have enforcement and interpretation authority. Faculty have no access rights to data.  Clearly, there are legal limits.  And ironically, given the intrusive nature of HR80 into the lives of faculty, privacy issues with respect to data generation, reporting and review.  Yet it is not clear the extent to which useful data may be provided in a lawful manner.  The issue just doesn’t materialize.

The resulting asymmetry of access will have substantial effects.  It produces a situation in which it is difficult to discuss policy on terms that approach equal positions.  It places faculty in the position of having to ask for and be content with the receipt of whatever data administrators are moved to provide—all the while facing a situation in which policy is justified on the basis of data that is unseen, untested and unverifiable. It its extreme, it makes a mockery of shared governance in an age in which governance itself is a function of data, its generation, management, and interpretation. Under these circumstances I can only urge the institutional representatives of the Senate to use their own resources to develop their own autonomous data generation mechanics.  The absence of that capacity will substantially inhibit robust participation in governance. This, of course, is well beyond the scope of the consultation, but is a necessary conclusion that flows from a reading of the text and its broader implications.

To summarize.  Without interrogating the underlying policy, and without reference to shared governance concerns, the revisions to HR 80 suggest three significant areas of concern.  The first are the ambiguities of definition and substantive application that provide little guidance even to those faculty determined to comply. Alternatively, those ambiguities will produce both over-reporting and under compliance, as faculty seek to avoid reporting events. The second are the substantial delegations of authority to administrators under this provision.  That discretion is not subject to any accountability nor does it provide a mechanism for uniform application of interpretation of the policy as these develop over time, especially where the policy itself reveals tension. This unaccountable administrative discretion to prosecute, judge and interpret the provisions of this policy ought to trouble its drafters. The third touches on data gathering and use.  The university should consider being more transparent about both the extent of its data harvesting, and its intended use.  It might also consider sharing data with its shared governance partners. Taken together, these concerns, apart from the fundamental issue of policy itself and the use of shared governance in its development, suggest the need to revisit important portions of the revised policy.

Yet, for all that, and taken as a whole, ORP has complied with its mandate.  It has produced a reworking of HR80 that streamlines and consolidates the reporting and approval process for human activity undertaken outside the university.  It has also provided a sound basis for data generation, data harvesting and one presumes data interpretation in furtherance of additional policy. I appreciate the work undertaken and commend ORP for the product of their efforts.  As one notes, though, the underlying principles, and their effectuation through the provisions of HR80 in its new, modified, form, retain its substantial failures as policy and as an expression of university culture and operations given our mission and the reflection of the sort of institution we wish to hold out as a model to the Commonwealth and this Republic. As to those matters, ORP has been given no discretion.  But it may be worth considering by those who vested ORP with its mandate, and to those officials who now direct the work of the institutional representative of the faculty.  Moreover, as it is based on a benchmarking with a large number of influential peer institutions, the consideration elaborated here are meant to provide a basis for discussion not just at Penn State but also among those per institutions—and their faculty representative institutions—within which this is meant to be embedded as an unproblematic set of conditions not just for the working conditions of employment but of virtually the entire lives of those employed by the modern research university in the early 21st century. I thank you for the opportunity to share these observations.