Oregon Advisory Opinions January 19, 1976: OAG 76-9 (January 19, 1976)

Oregon Attorney General Opinions

1976.

OAG 76-9.

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DISCUSSION

All questions presented relate to the interpretation and application of Oregon Laws of 1975, ch 317, (SB 413) which amended ORS 351.065. The State Board of Higher Education has appointed a committee to assist it in obtaining information for the evaluation of an institution president,

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as part of the board's program for periodic evaluation of presidents and other officials. The committee's request for guidance in the performance of its assignment occasioned this request, but the questions and this opinion intentionally cover a broader range of activities in Higher Education.

In 1971 the Legislature adopted what is now ORS 351.065, dealing with access to personal records of students and faculty members in the Department of Higher Education. The 1975 Legislature was persuaded that insufficient access was being given some faculty members to evaluative material in files pertaining to them. In response it enacted Oregon Laws 1975, ch 317 (SB 413), as an amendment to ORS 351.065. As introduced, SB 413 allowed no exceptions to full access by a faculty member to his personal file. Following a hearing on the bill, sponsors worked with officials of the Department of Higher Education and agreed upon amendments which protected the anonymity of persons submitting evaluative material prior to July 1, 1975, or prior to employment of a faculty member even if received after July 1, 1975. The amendments were adopted prior to passage of the bill by the Senate, and are now contained in the Act. Another amendment was adopted in the House, relating to classroom survey evaluations by students. That amendment will be discussed later.

In letters to the Chancellor urging that he request this opinion, faculty members of the committee mentioned in

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the questions presented have argued that a meaningful evaluation of the president cannot be obtained unless the evaluators are assured of anonymity. One letter says:

"The committee seeks a formal opinion from the Attorney General on the use of unsigned questionnaires to provide statistical data because, after considerable reflection, we think we cannot collect comprehensive and representative material for the Board without the use of anonymous questionnaires."

The letter says further:

"Several studies of issues relevant to the Committee's task have established that data from anonymous questionnaires are more honest or representative of real positions, reflect a broader spectrum, and are more normally distributed than data from instruments which require a signature."

Another letter says:

"Our consultants from the Survey Research Center advise that representative data from any population cannot be collected without the use of anonymous instruments, and the data is of questionable value if it is not representative of the groups selected for review. In part, therefore, the successful completion of our assigned task depends on the use of such material."

The arguments contained in the letters from committee members are persuasive as to the need for anonymous information in the evaluation of a president. However, whether anonymous information is to be received depends upon the meaning of the Act passed by the legislature, rather than upon reasoning based upon the needs created by a particular issue.

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State Board of Higher Education Administrative Rule 12.010 says: "The President . . . shall hold the rank of professor." Administrative Rule 40.040 says: "1. . . . Faculty ranks are instructor, senior instructor, research assistant, research associate, lecturer, senior lecturer, assistant professor, associate professor, and professor. . . ." A president or other administrative faculty member must be treated the same as other faculty members unless the legislation permits a distinction. We find nothing in the language of the statute to distinguish one faculty member's personal file from that of another. Legislative history does not disclose any discussion of the subject. Therefore, we conclude that the statute applies to all faculty members alike, including teaching faculty, researchers, administrators and those who perform two or more of such functions.

Committee members have made a strong showing for the anonymous evaluation of a president. As we seek to apply the statute to the questions posed, we must consider not only the value of anonymity in this particular case, and the expressed desires of administrators for reserving the identity of those persons making evaluations of faculty members, but also the language used by the legislature. Since this matter has been under study, we have received an informal request for advice as to whether a president can accept confidential communications pertaining to proposals for granting of tenure or promotions, with the material to be

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destroyed after a decision is made, and before the faculty member sees the material. Another question posed was whether faculty personnel committees may vote by number only, or by showing only a majority vote, without identifying how each member voted. We responded negatively to both questions. We mention those other requests to demonstrate that questions resulting from the 1975 Act are surfacing for both faculty members and administrators. We cannot be unaware that if we were to seek and find a way in which one can avoid the effects of the law, the other is entitled to follow a parallel path.

The Department of Higher Education presented testimony in opposition to SB 413. Dr. Miles Romney, Vice Chancellor for Academic Affairs, told the Senate Education Committee:

"Let me say at the outset that we understand and appreciate the sentiments that underlie the above proposal. (SB 413) But we believe that its adoption would have a seriously adverse impact on the capacity of some of the institutions of the state system to secure the kind of candid, expert evaluations of individual faculty members that is necessary if the institutions are to make the wise and hard decisions necessary in building high quality faculties.

". . . .

"Our concern with SB 413 is that its enactment would, in our judgment, effectively deprive our institutions of the invaluable, candid expert evaluation of the performance and professional standing of faculty members that is indispensable to wise screening and sifting of faculty as promotion and tenure decisions are made.

"This is particularly critical in the institutions working at the bounds of knowledge, with major obligations in graduate education and research where

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scholarship is increasingly specialized. In these intances, it is essential for faculty and administrative councils to know not only what administrators, faculty and students in the institution think of the individual's academic performance, as it is given to them to understand performance in these fields, but it is of equal, or great importance to know how the professor in question is viewed by those in his field nationally, particularly those who have already achieved recognition as outstanding teachers and scholars. Our institutions now have access to such evaluations because they are able to assure those making the evaluations that they will be kept confidential."

A paper prepared by Dr. Robert E. Doherty, Professor of Industrial and Labor Relations, Cornell University, (1974--75 Visiting Professor on the Chancellor's staff), was also presented to the Senate Education Committee. Dr. Doherty said:

"The Board of Higher Education opposes SB 413 on the grounds that the Board's Administrative Rules regarding the maintenance and disclosure of personnel records is fair to those affected and that the proposed legislation would make it virtually impossible to carry out an effective and objective faculty evaluation procedure, particularly in the evaluation of a candidate's research potential.

". . . .

"The procedures outlined above (Board rules) are about as far as any institution dare go in releasing confidential information if it places any value at all on the judgment of peers, both on and off the campus.

". . . .

"Now the question is--will the person making the evaluation be as candid in his evaluation under the provision of SB 413 as he would be under the present rules? Since no polls have been taken, no systematic interview conducted, the Board cannot

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answer that question with all the authority it would like. But based on the conversation had with several individuals who have authored such recommendations from time to time, the Board is convinced that these sources of valuable information would virtually dry up. Proponents of this legislation argue that a person writing letters of recommendation ought to be just as candid in assessing a peer's research capacity under circumstances of full disclosure as he would if he enjoyed anonymity. Perhaps he should be. But we live in a world of less than perfect men. The row upon row of statute books give testimony to that unhappy fact. The plain facts are that a very large number, perhaps a majority, of the established scholars (whom) review committees and department chairmen have relied upon to provide appraisals of a candidates research or research potential would refuse to provide any information at all if they are told that the candidate had full freedom to read what has been written."

A letter from Walter E. Oberer, Betts Professor of Law at Columbia University, was given to Senate Education Committee members. Professor Oberer said:

"Confidential disclosures of judgment are one thing; nonconfidential disclosures are quite another. It is hard enough to evaluate performance on a scale of excellence in confidential evaluation; to ask for such evaluation on a non -confidential basis could lead only to a relaxing of standards, a less frank and objective evaluation. This would be true generally, but even more so where friendship, attenuating into acquaintance, is involved, as it so frequently is in the academic world. The tendency of an evaluator would be to equivocate and withhold ultimate judgment, the very thing most sought."

It is clear from the foregoing that prior to approval of SB 413 the Senate had been advised of the value of confidential information. In disregarding that advice, the Senate must be presumed to have done so consciously and

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intentionally. While the House Committee on Education and School Finance did not receive testimony similar to that recited above, House members presumably meant to adopt the language which went over from the Senate and which rather clearly prohibits receipt and use of confidential or anonymous information.

Let us now examine the language of ORS 351.065 as it relates to the questions posed. Subsection (3)(g) says:

"After July 1, 1975, the board, its institutions, schools or departments when evaluating its employed faculty members shall not solicit nor accept letters, documents or other materials, given orally or in written form, from individuals or groups who wish their identity kept anonymous or the information they provide kept confidential."

That language is broad and all-inclusive. It prohibits, with certain exceptions contained elsewhere in the Act, acceptance of any confidential or anonymous information pertaining to faculty members. The stricture is imposed against both the Board and its institutions. That language prohibits a president from receiving confidential or anonymous information when he is considering whether to grant or withhold tenure. It prohibits the board, directly or through a committee, from receiving confidential or anonymous information concerning a president it is evaluating. The advisability of those prohibitions is not before us, because the legislature had already considered and discarded the contrary arguments.

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Having accepted evaluative information, the board or an institution is required to make it available to the faculty member concerned. The first paragraph of subsection (3) of ORS 351.065 says:

"No regulation, rule or order promulgated pursuant to this section shall deny to a faculty member full access to the member's personnel file or personal records kept by the board or its institutions, schools or departments, except as provided in paragraphs (d) and (e) of this subsection."(fn1)

Full access means that the faculty member is eligible to see all material accepted by the institution or board. Thus, the board's committee shall not receive signed questionnaires, use them, then destroy the questionnaires or remove the signatures before the president is permitted to see them. Nor is a president permitted to solicit and accept confidential evaluations of a faculty member, then destroy the evaluations before the faculty member has an opportunity to see them.

The only anonymous information which the board or an institution is permitted to accept is described in ORS 351.065(3)(f):

"Classroom survey evaluation by students of a faculty member's classroom or laboratory performance shall be anonymous. The record of tabulated reports shall be placed in at least one of the files designated in paragraph (a) of this subsection. All survey instruments used to obtain evaluation data shall be returned to the faculty member."

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There is no similar exception relating to evaluations by faculty members. We think it is clear that the legislature intended that the faculty member be able to find out exactly who said what about him, with only those exceptions expressly set forth in the statutes. If there are to be other exceptions, they will have to be provided by the Legislature. Group or committee votes, or position papers, must clearly identify the votes and positions of the individuals before they can be accepted.

Since only classroom survey evaluations are mentioned in subsection (3)(f) of the Act, we believe that the committee is not permitted to solicit or receive anonymous student surveys of a president, unless the president is currently teaching one or more classes. We are advised that presidents frequently teach one or two courses. If an anonymous student survey is to be accepted, it may relate only to classroom performance and not to a president's other duties or functions.

One of the questions relates to personal interviews with faculty members in order to obtain their evaluations of the president. ORS 351.065(3)(b) says:

"Any evaluation received by telephone shall be documented in each of the faculty member's files by means of a written summary of the conversation with the names of the conversants identified."

Incomprehensibly, that paragraph deals only with telephone conversations, not face to face discussions. Nevertheless,

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we believe that if committee members interview faculty members concerning the president for the purpose of obtaining evaluations, they must documents those interviews with a written summary of the conversation, and identify the persons speaking. To say otherwise would be inconsistent with paragraph (3) (g) quoted supra . Those are "materials" which are "given orally" and the givers are not entitled under the Act to either anonymity or confidentiality from the faculty member under discussion.

1 Paragraphs (d) and (e) permit certain information to be withheld from a faculty member if received before July 1, 1975, or if received prior to the employment of the faculty member.