Report of the Committe on Consultation - Almanac, Vol. 44, No. 29, 04/14/98

FOR COMMENT

The following report is on the agenda of the University Council meeting April 22 meeting (see the complete agenda here). Comments may be sent to the chair of the Committee, Professor Howard Lesnick, by email to hlesnick@oyez.law.upenn.edu, or to the Chair of the Steering Committee c/o the Office of the Secretary. Members of the University may also forward their views to their Council constituency representatives (see the list in Almanac January 20, 1998). Letters for publication in Speaking Out on April 21 should be sent by noon April 16, by e-mail to gaines@pobox, and will be published as space permits. --Ed.

Report of the
University Council Ad Hoc Committee on Consultation

March 31, 1998

I. The Committee's Charge

Drs. Judith Rodin, University President, and Vivian Seltzer, Chair of the Steering Committee, University Council, appointed the members of this Committee by letters dated February 2, 1998, charging us to report our recommendations by April 1, so that the Steering Committee might place our report on the agenda of the Council for its April 22 meeting.

We have met weekly since February 16, guided by the following charge:

Consultation is a central dimension of the life of the University and critical to the well-being of our community. To maintain a consultation policy which is both dynamic and functional, it is necessary to assess current practices and to design additional initiatives. Within this framework the charge to the University Council Ad Hoc Committee on Consultation is to:

1. Identify the current vehicles for consultation. Could they be more effectively deployed?

2. Develop a continuum of consultation models in different contexts broad enough to encompass the major kinds of issues and circumstances the University is facing.

Anchoring one extreme of the continuum of consultation is information by an authorized decision maker to the authorized head of one or more other constituencies so that person or persons is not "blind-sided." Anchoring the other extreme of the continuum is genuine collaborative work from the beginning for which effective problem solving requires hearing a wide-range of voices.

3. Develop specific models of consultation appropriate for each location on the continuum.

4. Identify the appropriate officers/persons from the relevant constituencies to participate in the consultation process.

The first sentence of the first charge presents essentially a factual question, to which we respond in Section III. The remainder of our charge, however, implicates normative premises, by which past (No. 1) and future (Nos. 2, 3, and 4) actions may be evaluated and guided. We have deemed it important to begin by making explicit our proposed articulation of those premises. Terms like "effectively deployed" and "appropriate" should not be taken to pose only technical questions. An explicit focus on norms can serve several purposes: (1) it provides a basis for deciding what consultation is, and is not, and what the source of its importance is; (2) it can bring to light divergent assumptions about norms, and subject them to discussion and resolution; and (3) it can inform application of the guidelines that emerge from our report to questions that inevitably will arise in the future. We therefore begin with a proposed articulation of what we call "primary principles," by which we contend the meaning and value of consultation should be judged. Our remaining charges are addressed in context in the body of this report: the second sentence of Charge 1 throughout the report, Charges 2 and 3 in Section IV, and Charge 4 in Section V, A.

II. What Consultation Is (and Is Not): Primary Principles

The first principle of consultation is that its contours should be shaped to the greatest extent possible by the nature and mission of the University.

A University is a special kind of place. First, it is a non-profit organization, in which fiscal responsibility and revenue generation are means toward the end of pursuit of educational, research and charitable endeavors in the public interest. As such, its decisions and activities are gauged in a broad social context, by standards that are different from those applied to for-profit firms. Moreover, the mission of an educational in-stitution commits it to open expression, the pursuit of knowledge, the free interchange of ideas, and the structuring of the work and educational activities of students, staff, faculty and administrators so as to sustain a campus community. The University must strive to provide opportunities for all who live, teach, carry on research, work, and study here to be full participants in that community. Finally, as the largest private employer in Philadelphia, making its home in West Philadelphia, the University is an integral part of both the West Philadelphia community and the city as a whole, and has an important responsibility to take account of the effect of its decisions on those larger communities.

The University should recognize that the practice of confidentiality, and narrowness in the scope and quality of consultation, while justified when they are in fact necessary, are in serious tension with the nature of the University's mission. All reasonable steps should be taken to consult as openly, as broadly, and as deeply as possible. Consulters and those consulted should take genuine account of the importance of explaining and justifying, to the campus and neighboring communities, the contours and limits of confidential or proprietary decision-making that is thought necessary. Cases of doubt should be resolved in favor of consultation; consultation should be frequent and thorough.

The second principle of consultation is that members of the campus and neighboring communities, both as individuals and as constituency groups, have a stake in the welfare of the community as a whole. Successful consultation avails itself of the expertise and interest of individuals and constituencies in order to make decisions and craft policies that improve the quality of life at the University and in the surrounding community. Successful consultation goes beyond the model in which constituencies are seen merely as "special interests" with narrow agendas; it rather acknowledges fully the skills, resources and perspectives they often can bring to the decision-making process. Students, faculty and staff are not simply buying a degree or earning a living. They typically make a major commitment of time and devotion to the enterprise, the spirit and consciousness of which have always reflected in large measure the dedication of many employees and students to the common enterprise. The term "stakeholder" more adequately perhaps than "constituent" describes the attitude with which their interests should be taken into account.

The third principle of consultation is mutual accountability. Consultation is a two-way process that can work only if consulters and consultees make themselves accountable to each other and to the process itself. Consultation by the University administration should be understood as conferring on those who are consulted an invitation to respond, an invitation that those consulted have a correlative responsibility to take up. All parties to consultationstudents, staff, faculty, administratorshave a responsibility to apply our norms of consultation in good faith, to respect confidentiality when it is promised, and to report and represent accurately the views of constituents and superiors.

Accountability entails too the recognition, incumbent upon members of both the campus and neighboring communities, that ultimate decisional authority rests with the Trustees and the President, in order that they may fulfill their responsibility to ensure the overall health of the University. The administration of the University is responsible for taking established goals, however they may have been developed, and formulating overall strategies and specific sequences of actions for meeting those goals. This is a complicated, often difficult, process, plagued by considerable uncertainty and serious limitations in the financial and other resources available to carry it out. Strategic concerns may reasonably be thought at times to counsel secrecy or, at least, as little public knowledge or awareness as possible. If, for example, the University is contemplating purchasing a piece of real estate, it is usually in its interest to keep that possibility confidential so as not to distort the market price. Decisions involving the participation of outside organizations, such as may have been the case in the outsourcing of the facilities department, might require that they be given time to decide whether to sign on before the proposed collaboration is made public. Premature announcement of contemplated decisions concerning closing or significant down-sizing of departments may damage the ability of the department to carry out its mission effectively during the transition.

By contrast, the level of confidentiality posited as necessary in these examples is at times not required. In such cases, it is the administration's responsibility to allow for fuller and more open discussion. The irreducible power differential injected into the consultative process by the administration's special responsibility and authority gives rise to a structural tension between the organizational hierarchy of the University as an institution and the democratic aspirations of the University as a community. It is a central task of the administration to keep that tension as compatible as may be with the underlying normative stance appropriate for a University.

In this context, it is especially important that consultation by the administration should embody the spirit of give-and-take whereby information of all typesspecific questions, concerns and methods, but also broader strategies, principles and frameworksis exchanged and incorporated into the consultative process. While the views of members of the University community may not be embodied in specific decisions or policies, the decision-making process should clearly reflect the fact that those views have been heard and taken into account in a meaningful way. For the consultative process is distinct from the outcomes of that process. A democratic, substantive, two-way process of consultation may be expected significantly to enhance consensus and therefore to strengthen communities, but it cannot resolve all conflicts. Neither the administration nor the other members of the campus community (or of the neighboring community) should misunderstand the consultative process: It is neither a mechanism for ensuring specific outcomes nor one for suppressing disagreement on substantive issues.

III. Existing Vehicles for Consultation

The codified vehicles for consultation, though relatively few, are important in the areas of their applicability. The Handbook for Faculty and Academic Administrators spells out consultative models for use in the appointment (and in some cases, the reappointment or removal) of a president, provost, dean, or other academic administrators. It contemplates consultation with the University Committee on Consultationthe three Senate Chairs and the Chairs of the Undergraduate Assembly (UA) and the Graduate and Professional Schools Assembly (GAPSA) on the resolution of cases of doubt as to the proper method of consultation.

The Handbook says almost nothing about the consultative roles of the University Council or Faculty Senate. The president, provost, and other administrators are to report to the Council annually, and "may be questioned" by its members on any topic. The Council may "request information" from any member of the administration.

A few Council committees are given some explicit consultative functions. For example, the chair of the Community Relations Committee is to meet quarterly, or more often if needed, with a senior officer for real estate "to be informed of pending real estate activities that affect the community." The entire committee "shall, with discretion, discuss relevant cases," and "may inform the community as the need arises." The Academic Planning and Budget Committee is charged with giving "informed advice" on resource allocation issues.

More important, perhaps, are a number of uncodified practices. We set forth here those of which we have become aware. There are doubtless others.

The three Senate Chairs normally meet twice monthly, and the Senate Executive Committee (SEC) meets periodically, with the President and the Provost. Senate committees often meet with administration representatives in connection with their ongoing work. Committees with overlapping interests in a matter at times meet together.

The UA Executive Board and the Chair and one Executive Board member of GAPSA each meet monthly with the President.

The Chair of the Penn Professional Staff Assembly (PPSA) meets monthly, and the Chair of the A-3 Assembly Executive Board meets quarterly, with the Executive Vice-President, the Vice-President for Human Resources, or both.

Senior and mid-level administrators meet periodically with groups of students, faculty, and staff. Some of these are informal and situational, while others are institutionalized. Those of which we have become aware include: The Graduate Deans and the Graduate Council of the Faculty meet regularly with the Vice-Provost for Graduate Education; the President and the Provost meet regularly with the Council of Deans, the President's Advisory Group, and, in the case of the Provost, the Council of Undergraduate Deans; the Vice-President for Government and Community Relations meets monthly with West Philadelphia community advisory boards. Administrators meet with the University Council, and with specific Council committees, in a variety of ad hoc settings.

Almanac is an actual and potential vehicle for consultation between the administration and others, and between constituency representatives and their constituencies (and others as well). The "For Comment" tradition provides a flexible source of consultative opportunities for individuals and groups. The Daily Pennsylvanian and Current provide additional vehicles for communication.

Emergent technology has given rise to new avenues of communication, such as newsgroups, e-mail, and the World Wide Web, in which are embedded possibilities of consultation.

IV. Articulating the Scope and Timing of Consultation

The policies and decisions facing the University as an institution range along a continuum, from major "developmental" decisions, on one end, to narrower "operational" decisions, on the other.

Developmental decisions are those that affect many people, have a long-term impact, involve major commitments or expenditures of money, and generally influence in an important way the quality of life on campus. Examples of developmental decisions would be to move the campus to the suburbs, to abolish or create a school, to mount a major development campaign, to adopt a long-term strategic plan for a school or the University, to out-source a major component of the University's activities, or to build a new hospital or school building. Decisions involving major cost-cutting steps and major changes in compensation design, benefit plans, or other matters implicating significant quality of work life issues for employees, may fall into the developmental category.

Intermediate decisions include making marginal changes in the benefits package, deciding that TV surveillance cameras should be installed throughout the campus, moving the headquarters of the Public Safety Department to a new site (because of the significant perceived impact on student life and concerns), and channeling the location and operations of campus-area vendors (because a large percentage of University personnel and students patronize vendors).

Examples of operational decisions are the steps taken to carry out an already approved budget, to construct a building already agreed upon, and the day-to-day decisions that concern all sectors of the community.

Broad consultation is needed most in the case of developmental decisions, and least with respect to operational decisions. Yet, it is often the case that a specific decision partakes of each of these three characteristics over the course of its gestation. The critical question is, At what point or points in the decision making process should consultation be sought? We have found it useful to approach this question by noting how any decision-making process contains a number of steps, which may be described as follows:

1. Gather data

2. Formulate Goals

3. Develop major alternatives

4. Provisionally evaluate each alternative

5. Provisionally select the most desirable alternative or set of alternatives

6. Implement the decision made

7. Monitor and adjust the action to be taken

The process is often sequential, but may be cyclical rather than linear. Decision makers often revisit some or all of the steps as they move toward a decision, refining and understanding it better with each cycle. Moreover, it is important to recognize that, while adjoining steps (for example, steps 4 and 5) may tend to merge in a decision maker's mind, they are analytically distinct.

We propose the following norms to guide the administration in applying the "steps" model to the question of the appropriate timing of consultation:

(a) Consultation is presumptively obligatory no later than the conclusion of Step 3. Evaluation will often carry a decision maker into at least the beginnings of preliminary selection, and it is important for a decision maker to remain aware of that process, and respond by seriously considering prompt consultation.

(b) Earlier consultation is presumptively obligatory in a particular case if, in the considered judgment of a reasonable person in the position of the decision maker, the momentum inherent in moving through steps 1-3 would be recognized as sufficient to significantly inhibit even though not preventing entirelygenuine consultation at the conclusion of Step 3.

(c) Earlier consultation should be considered in all cases, and engaged in where the decision maker in fact believes it feasible or perceives its utility.

(d) Consultation may be deferred, notwithstanding it being presumptively obligatory under paragraphs (a) or (b), where and only to the extent that, for concrete and specific reasons, the need for confidentiality is reasonably believed clearly and strongly to counsel against it; provided, that in such event the procedures specified in Section IV (B) shall be followed.

(e) Because a specific matter may, as noted, cycle through the process of decision making more than onceperhaps beginning, for example, as a developmental decision, but then returning to an earlier step in the sequence described above as an intermediate or operational decisionthe scope of consultation required in the succeeding stage may take account of what has been done previously.

V. Identifying the Participants in Consultation

One cannot decide on an optimal scope and timing of consultation without having in mind the persons or bodies with which consultation is to be carried on. This is partly true for normative reasons: A specific requirement of consultation may be appropriate with one consultee in mind, but not another. Beyond that, it is unrealistic to expect the administration to take the entire laboring oar in identifying consultation partners in each new situation. By specifying guidelines for participation, we hope to facilitate a system of shared responsibility between administration and consulting partners.

(A) One forum for consultation is the University Council through its Officers and Standing and ad hoc Committees. Initially formed to facilitate faculty participation in governance, the Council for many years has had membership from every constituency (other than the political communities, West Philadelphia and the City); indeed, the "open forum" practice enables it to hear directly the concerns of those not members of the body. It meets monthly, with the President as its president. As noted in Section III, senior administrators are to report to Council sessions, and may be questioned on any topic of concern to the membership. Its deliberations are reported, in summary form, in Almanac.

The Council has a mature and flourishing committee structure, similarly broad-based in its representativeness, to which the administration should turn naturally for consultation. Indeed, we believe that the practice should be institutionalized whereby mid-level and to some extent senior administrators meet at stated regular intervals with the chair of the relevant Council committeeat least quarterly, and whether a specific agenda is in contemplation or not. In that connection, we suggest that the Steering Committee consider whether to propose revision of the current committee structure of Council, so that there will be, as there may not be now, readily identifiable committees to whom administrators and others may turn for consultation. (We note, for example, that Council has no committee on administration, as the Senate does).

The several "independent committees" listed in the Council by-laws (e.g., the Committee on Open Expression and the Academic Planning and Budget Committee) are a second logical place to which the administration might turn for consultation. In some cases, however, these committees do not include representatives of each constituency, and the administration should take this into account as it decides what group to consult.

The Committees of the Faculty Senate represent yet another alternative avenue of consultation. While they have only faculty representation, they can provide advice to the administration on certain strategic concerns prior to the seeking of broader input from the wider community.

While we encourage the use of these committees for consultation when appropriate, we recognize that there will be concerns that will not fit within any existing committees. If ad hoc committees are to be used in such cases, the relevant constituencies should be consulted on their membership.

(B) One of the constraints affecting the willingness of senior administrators to engage in timely and open consultation is a concern over confidentiality of nascent and controversial ideas. We believe that this question need not be viewed in a wholly "either/or" manner: Either the matter will "go public" or it must be kept "in house." A body now exists, which has the potential, in our view, for bringing much-needed flexibility into the process of sharing emergent plans and thoughts.

We have in mind the three Senate Chairs. This is a unique group in the University. The Chairs are not only facultyand as such have a degree of ambiguity in their status, neither administrators nor employees in any traditional sensethey are typically teachers who have been at the University for many years, have served it in several capacities, and have been selected (by a nominating committee itself containing many seasoned colleagues, and broadly representative of the faculty) with the qualities of judgment, fair mindedness, and devotion in mind. Their acceptance of the job of Chair-elect begins a three-year undertaking. If there is any group on campus (not selected by the administration) whose judgment, discretion, and loyalty it can trust, it is this one.

Our proposal is that the practice of semi-monthly meetings between the Senate Chairs and the President not only be codified, but that it be the administration's responsibility, in applying the guidelines proposed in Section IV, to turn to the Chairs in doubtful cases, under a pledge of confidentiality, to advise them of the matter in question, and to seek and take seriously their counsel whether, how and when any consultation, going beyond them, should take place. It would in turn be the responsibility of the Chairs to advise the administration if they believed that the sharing of information should be broadened, for the Chairs should not forget that their role is ambiguous, and that consultation with them is not equivalent to consultation with the faculty, let alone other constituencies. In that connection, one specific responsibility of the Senate Chairs should be to consider whether to suggest to the President that, in light of the specific issue at hand, it would be appropriate, still on a confidential basis, to bring the UA and GAPSA Chairs, the PPSA and A-3 Assembly Chairs, or both groups, into the discussion of a matter.

It would also be the Chairs' responsibility to advise the President, during a regular meeting or outside it, of any concerns abroad regarding a matter that has not been disclosed to them, and to invite the President to consider the question of the timing and manner of consultation.

In all of these cases, there is a certain awkwardness for those consulted, who are after all accountable to their constituencies, to agree to consult with the administration in confidence. But the solution is not for the administration, nor even for the Senate Chairs, to presume more or less reflexively that the question should not even be broached. Officers representing each of the constituencies in the University community are members of our Committee, and believe that the proposal is feasible.

One safeguard that occurs to us is to specify that, when a constituency representative has been consulted in confidence about a matter not thought by the administration to be ripe for broader disclosure, the representative shall, at an appropriate later date, report the fact of confidential consultation to his or her constituency. In that way, constituency representatives may derive future benefit from the responses post hoc of their constituents to specific applications of the practice.

VI. Additional Responsibilities of Those Consulted

Confidentiality apart, there are several respects in which the consultation process can be improved through the assumption of specific additional responsibilities by those with whom the administration does or might consult.

(A) Students involved or wishing to be involved in campus life are often especially in need of a full orientation to emergent questions. Undergraduates are here in most cases for only four years, and not infrequently come to campus with no knowledge of the history of a matter. Graduate students may span a somewhat longer period, but in both cases student members of committees often come to an issue "cold." Informal methods of orienting members of a committee exist, and are useful, but sole reliance should not be placed on them. We believe that it should be the responsibility of the leadership of student constituencies to take the necessary steps to orient the relevant student committees to the background and origin of a timely question, perhaps inviting faculty or others to play a role in this work. Student leaders need also to monitor the work of student committees, to assure that their membership is active and increasingly informed and sophisticated about important issues. Membership on a student committee is more than a resume enhancement; it is an exercise in citizenship, and entails obligations accordingly, but members sometimes need the guidance and attention of more seasoned colleagues to enable them to carry out their responsibilities.

(B) When a person, group of people, or committee or other body is consulted by the administration on a matter, it is natural for the administration to presume that by that act it has to that extent met any need for consultation. The person or body consulted "represents" the constituency. While we believe that the administration should not take refuge in a narrowly legalistic application of this idea, our proposal is that primary responsibility should be lodged with those consulted to consider whether that act suffices as consultation with the constituency itself. It too should not seek refuge in legalisms. Whether the body is the three Chairs, the Senate Executive Committee, a Council Committee, staff- or student-organization officers, or (to take a recent example) the Faculty Club Executive Board, those consulted should feel obligated to consider on their own motion whether they should share the information, seek administration approval to share it (where the information has been given in confidence), or suggest that the administration itself share it, with a broader range of the relevant constituencies at an appropriate time and in a sufficiently public fashion.

We note too that, where there is a need for consultation with a committee of Council or the Senate, or with officers of constituency bodies, the need is ordinarily not satisfied by consultation with an administrative committee that contains faculty, staff or student members among it. Those members, of course, serve a useful function, and can provide important consultative input, but they cannot be thought to represent their constituency. We suggest in the preceding paragraph that designation as a representative by a constituency body may not be a sufficient warrant of representativeness in a particular context; it is, however, certainly a necessary condition.

VII. Proposed University Council Resolution

We believe that, in establishing our committee, the Council had in mind, not only the articulation of recommended principles, but their embodiment in a form enabling it to expect that their adoption by the Council, and acceptance by the President, would affect future practices. Accordingly, we here include an implementing recommendation in our proposed resolution.

Resolved, that the University Council:

1. Accepts the Report of the ad hoc Committee on Consultation;

2. Endorses the statement of primary principles governing consultation, as set forth in Section II of the Report;

3. Adopts the recommendations contained in the succeeding sections of the Report; and

4. Suggests that the Senate Executive Committee consider drafting and adopting specific language codifying, so far as feasible, the recommendations contained in the Report, for submission to the administration for adoption.

Respectfully submitted,

University Council Ad Hoc Committee on Consultation

Donna Arthur (career planning & placement, law)

James Bean (mail service)

Bill Conway (College `00)

William Gipson (chaplain)(ex officio)

John J. Heuer (human resources)

John Keene (city & regional planning)

Lynn H. Lees (history)

Howard Lesnick (law)(chair)

Barbara J. Lowery (provost's office)

Matthew Ruben (GAS `99)

Note: The Committee appreciates the high level of professionalism with which our work was aided by the staff support of Ms. Robin Shepard of the Office of the Secretary.

Almanac, Vol. 44, No. 29, April 14, 1998