12/00 Minutes

Note 1: Please submit agenda items and cover sheets for the February 7 Senate meeting to Bege Bowers, English Department, by noon on Friday, January 26. Provide both a hard copy and a disk copy of your report and cover sheet in Word or rich text format. A downloadable cover sheet is available at the Academic Senate web site:

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The following motion carried: a motion to amend Bylaw 11, Section 3, to read “All meetings of the Senate, its committees and subcommittees shall be open in accordance with State of Ohio Open Meetings Laws and the exemptions specified therein.”

The following motion carried: a motion to approve the University Curriculum Committee Course Proposal Progression that appeared in Attachment 3 to the December 6 agenda.

The following motion carried: a motion to approve the summer scheduling guidelines that appeared in Attachment 4 to the December 6 agenda.

The following motion carried: a motion to approve the General Education Proposal Flow Form that appeared in Attachment 5 to the December 6 agenda.

Jim Morrison, chair of the Academic Senate, called the meeting to order at 4:05 p.m.

Minutes of the 4 October and 1 November 2000 meeting were approved as posted.

To view the October minutes, click here; to view the November minutes, click here; click your “Back” button as necessary to return to the December minutes.)

Senate Executive Committee / Report from the Chair: Jim Morrison made the following announcement:

The Senate Executive Committee received the resolution on open meetings that Student Government sent to all senators. Since Student Government wanted the resolution on the agenda but did not indicate that a motion pertaining to the resolution would be made from the Senate floor, the resolution was attached to the agenda for the December meeting as correspondence. For a copy of the resolution, see the agenda for December 6, Attachment 1.

Ohio Faculty Council Report: Tom Shipka, our elected representative to the OFC, made the report in Attachment 1 (pdf file) to the December 6 minutes. (After viewing the attachment, click the “Back” button in your browser or close the Acrobat window to return to these minutes.)

Charter and Bylaws Committee: Dale Harrison, chair of the Charter and Bylaws Committee, reported, beginning with the open-meetings issue:

Harrison: In response to earlier proposals from the University Curriculum Committee (UCC) and the General Education Committee (GEC)—proposals that included items closing portions of their meetings—the Charter and Bylaws Committee voted unanimously to propose an amendment to the Senate Bylaws; there was one abstention. The proposed amendment and the committee’s rather lengthy rationale for it appeared in the agenda for the December 6 meeting, Attachment 2.

We were fairly meticulous about the language of the proposed amendment, which went through several revisions in the committee. The initial question we were given can be paraphrased as follows: Do Ohio’s Open Meetings Laws apply to the Academic Senate; and if they do, should the Bylaws be amended to reflect that? We felt that the laws probably do apply (absent a direct test in court) and that the Bylaws should therefore be amended.

Harrison summarized the rationale that appeared in the agenda, noting that the Charter and Bylaws Committee never questioned the legitimacy of the UCC’s and GEC’s concerns about openness. The Charter and Bylaws Committee felt that the “risk factor” was too high, though, especially since the matter under discussion has become a fairly high-profile issue.

Phil Chan, Art: If all meetings of decision-making bodies are to be open, does this mean that subcommittees that are advisory and don’t make the decisions—that in fact refer back to the Senate to make decisions—must be open?

Harrison: The Open Meetings Law says that decision-making bodies are public and shall be open. The second part of the law says that the committees and subcommittees of such bodies must also be open. There is no case law on point regarding what “advisory” is in Ohio. However, other state supreme courts, both in California and in Tennessee, have dealt with what is “advisory.” A dean’s advisory council was declared not to be a decision-making body. There were two parts to the rationale: The word “Advisory” was in the title of that body, and that body did not make and pass motions or legislation. But our Senate committees and subcommittees do make motions; in effect, our committees and subcommittees are creating law and forwarding it to the Senate. And though there is no Ohio case law on point, courts often rely on what other jurisdictions have done with the same kind of question.

Bill Jenkins, chair of the GEC: Our committees feel that the issue has already been presented from both sides. We continue to have some concern about the open deliberations because of power relationships. However, we recognize that there is a strong “sunshine” law in Ohio, and there is a possibility that it applies. Hence, both of our committees (the UCC and GEC) have deleted the closed-deliberations provision from the recommendations we are making today. The vote on this motion will govern what the UCC and GEC do.

J-C. Smith, Philosophy and Religious Studies, read the following statement regarding the question of a uniform requirement of open meetings for Senate committees:

1.      My department is roughly split on the issue.

2.      I have done some research, primarily involved with review of the Ohio Revised Code and review of an Internet search
       on: academic senate > committee meetings.

3.      The ORC review resulted in the following points:

a. The open meetings statute applies only to committees of public institutions that have decision-making authority, which many of the Senate committees do not have, due to their advisory status.

b. The statute applies to such committees only when they are conducting “public business,” which is an undefined term but which surely does not include “all business,” as suggested in the student proposal, nor all business involving allocation on campus of any public funds, as suggested in the faculty motion.

c. The case of Toledo Blade Co. v. Univ. of Toledo Foundation clearly involves the conduct of “public business,” involving explicit relations of the Foundation with public entities, and is not relevant to the issue of internal Senate committee deliberations.

4. The Internet review included 361 “hits,” with the following results:

a. There were no “hits” for the state of Ohio.

b. Approximately 4% of “hits” had any mention of open meetings considerations.

c. Those “hits” that had such considerations were roughly divided equally between prohibiting open meetings, commonly for executive committee meetings of academic senates, and requiring them, with numerous exceptions, including personnel deliberations and evaluations of programs.

d. In any event, there were so few “hits” as to make it clear that the issue was not a major concern.

5. Practical implementation of the faculty proposal has not been thought out and could easily cause unmanageable results for the conduct of normal business of the Academic Senate, its committees, and other areas of university administration. A sentiment in favor of general openness does not justify requiring it in every specific case.

6. So, why should YSU lead in this regard? Why should the Academic Senate apply to itself a standard that the administration does not apply toward its own meetings? Why should the Senate adopt a policy that the administration may use to coerce (especially junior) faculty or otherwise determine the outcome of Senate committee deliberations? These committees are staffed by faculty, our colleagues and professionals whom we should trust to exercise their judgment. If we do not like the result of their advisory roles, we have other avenues for addressing that. Moreover, the threat of a lawsuit is specious. If we are taken to court over this, we will have every other Ohio university at our side.

7. In conclusion, if we are truly worried about closed doors, these are not the closed doors that are really of concern, which are those closed outside of all committee meetings. Thus, I will vote against this motion.

Harrison: Two wrongs don’t make a right, and vice versa. If there is some question about how the administration conducts business on this campus, it should not affect the direction the Senate takes about how it conducts its own business. I don’t think a lawsuit is specious. I think the likelihood of one is high. We listed the exemptions in our attachment to the agenda for today’s meeting (see the December 6 agenda, Attachment 2, items 3.A.1-7). Why should YSU take the lead on this matter? Because we’ve been posed with the question in a public manner, when perhaps no other institution has. It’s an opportunity for us to take the high road.

The Charter and Bylaws Committee was interested in making the correct decision. Members of the committee requested that I send a memo to the University counsel (Sandra Denman), asking her to solicit an opinion from the state attorney general. We have asked for that opinion—though it may take quite some time to get it. The Committee wants to continue to do the right thing in terms of the law. There’s a separate matter, though, and the Student Government resolution addresses that: the principle of openness in this type of atmosphere at a public institution.

Tammy King, Criminal Justice, and chair of the UCC: Like the GEC, we have removed from the proposed UCC motion the idea of closing the deliberations. We don’t want to be secretive. We just felt that during the deliberative stage, after hearing the arguments, we would feel more comfortable to discuss the issue as a committee and then send our recommendation forward to the Senate. It can be contested on the Senate floor. We were concerned about power issues coming into play. Not everyone is tenured. Not everyone is a full professor. We had hoped that we could put the power issue aside and deal just with the hearing. But we’ve removed the statement concerning closed deliberations. We were concerned about the articles in the Jambar. We want Student Government and everyone here to know that we were not trying to be secretive or close the entire hearing.

Elaine Greaves, Criminal Justice: If we’re waiting for an opinion from the state attorney general, why are we moving at this point? If the attorney general says we don’t have to have open meetings, what then? Will we just ignore the opinion because we have already voted?

Harrison: No. It could take years for the attorney general to issue an opinion. The smart and perhaps the right thing now is to open all meetings of all committees. If the attorney general issues an opinion contrary to this, the Senate can take the matter up at that time.

Harrison: Denman issued a memo that said a number of things. I’m paraphrasing: She had talked to sister institutions and asked whether they had rules saying they operated by Ohio Open Meetings Laws. She said the other institutions did not worry about such things. They had not been posed with the question or challenged. She said there was no case law on point—no law in Ohio that says academic senates fall under the Open Meetings Laws. One media law expert I talked to says no one would dare to close one and risk having all of their laws overturned.

I don’t think that memo was sufficient. It did not mention the Toledo Blade case, which doesn’t have to do with academic senates but does have to do with universities. I asked Denman what universities she spoke to, what questions she asked, what case law she looked at, etc. That was three weeks ago, and she hasn’t responded.

Greaves: I’m just concerned that we may be rushing into something we don’t need to do at this point. I think the attorney general’s office could act expeditiously if we explain the urgency of the matter. To act prior to receiving the attorney general’s opinion seems to be jumping the gun.

Tess Tessier, Philosophy and Religious Studies: Because there is no motion before the Senate to close any deliberations or any portion of the meetings, we could wait for the attorney general’s ruling.

Harrison: I don’t think there is a reason for urgency; I do think there is a reason to do the right thing, though. Many people considered this issue from many perspectives—from the University Curriculum Committee, to the General Education Committee, to everyone else who looked at it. We believe we came to a sound conclusion, and as a committee we responded to the questions we were asked to consider.

King: I think it might be prudent to wait and see what the attorney general has to say. But in the mean time, the UCC and the GEC have removed the closed-deliberations sections from our proposals. Results of deliberations do go forward to the Senate, where decisions are made on the Senate floor. The UCC is a group of your colleagues; we are here to assist individuals in putting their proposals forward.

Shipka, Philosophy and Religious Studies: I think this issue has been debated satisfactorily over an extended period, both in and out of the Senate. I move the previous question.

Shipka’s motion, which would close debate, was seconded and carried by at least the mandatory 2/3 majority.

A vote was taken on Harrison’s motion to amend Bylaw 11, Section 3, to read “All meetings of the Senate, its committees and subcommittees shall be open in accordance with State of Ohio Open Meetings Laws and the exemptions specified therein.” Morrison called for a show of hands. There were 35 votes in favor of the motion, 23 votes against it. The motion carried.

Morrison: It is the opinion of the chair and the Senate Executive Committee that the exceptions in the Open Meetings Laws would cover such activities as those of the Academic Grievance Subcommittee, etc., that deal with material that would fall under privacy and student rights acts.

Elections and Balloting Committee: Louise Aurilio, chair of the committee, did not report at the meeting but submitted a written annual report listing those elected and appointed to Senate positions. See Attachment 2 (pdf file) to the December 6 minutes. (After viewing the attachment, click the “Back” button in your browser or close the Acrobat window to return to these minutes.)

University Curriculum Committee: Tammy King, chair of the committee, reported:

Formerly, the Hearing section of the proposed University Curriculum Committee Course Proposal Progression form contained an item that read, “At the close of the open hearing, the objector, department representative and all observers will be excused so that the UCC members can conduct their deliberations.” As noted earlier, the UCC has removed this item pertaining to closed deliberations from the Hearing section of the proposed document. For the current version of the document, which does not refer to closed deliberations, see the agenda for December 6, Attachment 3.

Academic Planning Committee: Ram Kasuganti, acting chair of the committee, moved that we accept the summer scheduling guidelines that appeared in Attachment 4 to the December 6 agenda. He noted that minor adjustments to the number of minutes per class meeting may need to be made. The motion was seconded; there was no discussion. The motion carried.

General Education Committee: Bill Jenkins, chair of the General Education Committee (GEC), reported on two matters—the GEC Proposal Flow Form, and general education requirements for transfer and other students:

Integrated Technologies Committee, University Outreach Committee, Library Committee, Academic Research Committee, Student Academic Affairs Committee, Student Academic Grievance Committee, Honors Committee, and Academic Events Committee: No reports.

Attachment 2: Elections and Balloting Committee Annual Report (separate pdf file)

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