Oregon Advisory Opinions April 17, 1978: OAG 78-49 (April 17, 1978)

OAG 78-49.

In 1975, the legislature added subsection (3) to ORS 351.065. The purpose of the new provision was to assure that higher education faculty members would have full access to their own personnel files and to make certain that, with limited exceptions, a faculty member would be able to determine the source of evaluative material in that file. The new provision relating to faculty members' files has been the subject of informal opinions by this office and one prior formal opinion, 37 Op Atty Gen 1055 (1976).

Subsection (3)(g) of ORS 351.065 states:

". . . the board, its institutions, schools or departments when evaluating its employed faculty members shall not solicit nor accept . . . materials . . . from individuals or groups who wish their identity kept anonymous . . . ."

"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 both against the Board and its institutions. That language prohibits a president from receiving confidential or anonymous information when he is considering whether to grant or to withhold tenure. It prohibits the Board, directly or through a committee, from receiving confidential or anonymous information concerning a president it is evaluating."

Thus, it is settled that evaluative material pertaining to a faculty member may not be anonymous. Compliance with this prohibition also means that, with limited exceptions not relevant here, personnel committees, departments and other bodies

within an institution of higher education may not act anonymously. In informal opinion No. Op-3482, issued to David B. Nicodemus, Dean of Faculties, Oregon State University, December 31, 1975, we said:

"You next ask whether faculty personnel committees are required to have recorded or roll-call votes. We think the answer is 'yes'. If the committee simply reports the total vote, without recording the names of those who voted, or if it simply shows the majority vote, it is extending the cloak of anonymity to faculty members who may have voted adversely to the faculty member who is being evaluated. Even though the faculty personnel committee is a valuable and revered institution, we think the statute prohibits it from reporting in such manner as to protect the confidentiality or anonymity of individual members."

A subsidiary question arises with respect to promotion of personnel to supervisory positions, such as department heads and associate deans. ORS 351.065(3)(e) provides:

"Confidential letters and other information submitted to . . . the board or its institutions, schools, or departments prior to the employment of a prospective employee are exempt from the provisions of this section . . . ."

It is urged that a person being considered for promotion to a supervisory position is, for purposes of the new position, a "prospective employee," and that the provisions of ORS 351.065(3)(e) should apply. Under this rationale, confidential letters and other information relating to the promotion, submitted to the board or an institution, school or department before the employe is promoted, would be exempt from the disclosure requirements. We do not agree.

Faculty members at O.I.T. argue that if members of a personnel committee express themselves frankly concerning one nominated to be department head or associate dean, they face potential retaliation. We understand and sympathize with the concern. One who argues or votes against the new supervisor may not receive coveted class assignments, or may suffer in other ways. But the alternative is secrecy which permits capable candidates to be sidetracked for personal or malicious reasons. There are arguments on each side of the question, but the arguments are theoretical, because the legislature has made the policy decision. A faculty member transferring or being promoted within the institution is not a new employe for faculty records purposes. If the law is to be changed, it can be done only by the legislature.

This interpretation can have harsh and perhaps unfair results. For example, where persons from both inside and outside the institution are competing for a supervisory or administrative position, the hiring panel or officer may solicit and consider letters and information submitted in confidence concerning the non-employe, but may not solicit or consider such material concerning persons already employed by the board, department, institution or school. Despite this discrepency in treatment, we believe the legislature has indicated in ORS 351.065(3)(g) that the board and its subordinate bodies may not accept or consider confidential material concerning a faculty member.

A question also arises as to the meaning of the word "department" as used in ORS 351.065(3)(e). We believe that term must be read in series along with "institution" and "school". We conclude that the term "department" as used in this statute refers to units within the Department of Higher Education which are similar to schools and institutions but which do not properly fall within either of those categories. Thus "department" would encompass units such as the Division of Continuing Education, the Teaching Research Division and the Oregon Educational and Public Broadcasting Service. This list is illustrative, not exhaustive. The term "department" as used in this statute would not include units such as the English Department, Biology Department or the History Department at a particular institution. Accordingly, we believe it would be an evasion of the intent of this statute to hold that if, for example, the O.I.T. Business Department were considering accepting a faculty member from the O.I.T. Communications Department, the transferring employe would be considered a "new" employe. However, it is probable that an employe of Institution A who is being considered for a position at Institution B could be treated as a prospective new employe at Institution B.

Finally, we are asked how the individual opinions of faculty members on an evaluation committee are to be recorded. There are several possibilities, and we think each institution, and perhaps even each personnel committee, can decide which

method is most suitable. The committee may keep minutes reflecting the opinions and votes of each committee member on each question. The committee may prepare a written report for each candidate showing the names of committee members who agree or disagree with the report. The committee may prepare a verbatim record of its proceedings which will provide the necessary information. There are undoubtedly other ways in which the action of the committee may be recorded, so that its action is reviewable by the persons affected. We think the statute does not require the use of any particular method, so long as the evaluative information is not submitted anonymously.