Personnel and Other Legal Issues

1. Personnel and Other Legal Issues Or “The Best Part of A CIO’s Job”

2. How to Avoid Personnel Issues Entirely • Hire the right people to begin with! • Review your hiring process (usually a policy) • Make sure that you have a say in the process – typically, a committee will forward 3 candidates to you and/or the CEO • Enforce confidentiality and being unbiased • Use the CIO network to find out about candidates

3. Red Flags in the Hiring Process • Too many jobs, too little time • Failure to list supervisors • Leaving previous jobs for “philosophical differences” • Extreme eagerness to please • Lack of research about the college or the position

4. Other Hiring Considerations • It’s never final until the Board approves AND the contract is signed • Colleges differ on whether certain positions can start earlier, then have Board ratification • Don’t skimp on reference checking – call past supervisors • Be suspicious of quirkiness • The Single Best Indicator

5. Hiring Faculty -- MQs • Your HR department should have a process for reviewing MQs – better for you to be involved • You CAN hire faculty without MQs under “equivalency” provisions • The equivalency process must be approved by the faculty senate (87359) • Board item must indicate that faculty member was hired under an equivalency

6. Temporary Full-time Faculty • When can you hire a temporary full-time faculty member? • Sections 87481 and 87482 of Education Code • When full-time faculty member is on leave or has long-term illness • When enrollment is higher??? • Many colleges allow one semester in three years…..not entirely clear • Will count toward tenure if hired later as probationary

7. Inheriting Other People’s Bad Choices • It’s inevitable that you have inherited some unsatisfactory tenured faculty and permanent staff • You may also have some unsatisfactory part-time faculty and managers • Addressing issues with each group has different guidelines and different types of potential political fallout • The worst choice in all cases: do nothing

8. Marginal versus Unacceptable • Think carefully before identifying employees who need to be “corrected” • There will always be a “worst dean” – but is he or she acceptable? • There will always be marginal faculty – but are they meeting the contract requirements? • There will always be low-performing staff – but are they getting the job done?

9. Deans or Other Managers • Look over past evaluations • Even if your predecessor shirked his or her duty, evaluate honestly starting now • Give written direction and clear deadlines – follow the FRISK model • Be aware of March 15 deadline for notice of non-renewal • Keep your CEO in the loop and on board

10. FRISK Model • Facts • Rule • Impact • Suggestions • Knowledge (of document and right to respond – 87031) • Verbal warning or counseling does not build a record • Take emotion out of the equation…..it’s not about you

11. Probationary Faculty • Remember: don’t hire marginal faculty. Trust your instincts. • Know your contract provisions – importance of a “minority report” • If they do not do well the first year, either do not renew or give a detailed improvement plan (have a process) -- • Can release after the first year if followed the process – easier than in subsequent years • Must work 75% of a year to count as a full year toward tenure -- mid-year hires are out of luck

12. Tenured Faculty • Contrary to popular belief, they CAN be fired or at least helped out the door • Try to have honest evaluators rather than “friends” • Even if they have been there 30 years, they can be fired for cause (87732) • More likely, they can be investigated, put on administrative leave, and paid some amount to retire • Yes, they still get a retirement party…..

13. Section 87732 • Immoral or unprofessional conduct • Dishonesty • Unsatisfactory performance • Evident unfitness for service • Physical or mental condition that makes him or her unfit to instruct or associate with students • Persistent violation of state or local school regulations • Conviction of a felony or crime involving moral turpitude • If egregious, don’t need progressive discipline….otherwise, do

14. Classified Staff • Use the probationary period – don’t assume improvement in the future • Document issues rather than relying on verbal warnings • Involve the union whenever there is a meeting that could result in adverse action (same for faculty) • Resist the urge to reassign work or avoid the problem employee

15. Other Personnel Questions • What is a professional expert and when can I use them? • What is an apprentice? • How long can an interim manager stay in place? • Who gets retreat rights? • What’s the deal with Personal Necessity Leave?

16. When Can an Adjunct Work More than 67% of a Full-Time Load? • Safest answer: Never • Two questions to ask: why and how often? • Some colleges allow it once every 3 years, based on 87482(b) • Clearest rationale relates to leave for a full-time faculty member (in ANY discipline) or extended medical leave – muddiest has to do with “higher enrollment of students” (measured when and how?) (87481-87482)

17. When Can an Employee be Put on Administrative Leave? • If it’s with pay, generally whenever it would be useful to do so (for example, during an investigation) • Paid administrative leave is not usually considered punitive • Leave without pay requires progressive discipline or more complicated proceedings • My rule: if others might be in danger, better to have the person away from the college

18. Right of Assignment • May be the last shred of authority left to deans and CIOs • It depends on your CBA: thanks to the California legislature, we now all have re-employment preference rights for adjuncts, but hopefully, your college did not opt strictly for seniority…. • Usually, full-time faculty do not acquire seniority over their peers, but often have “bumping rights” in relation to adjuncts • Summer and overload assignments are often exempted….again, it depends on your contract

19. Additional Considerations for Adjunct Assignments • 87482.8: “Whenever possible….” • Inform adjuncts of assignments at least 6 weeks in advance • Pay them for a week if the class is cancelled less than two weeks before the start of a semester • Give them equal rights in terms of book selection, participation in department activities, and use of resources

20. Evaluation Basics • Be specific and be direct • Don’t overrate – Gandhi may have been a 5, but your dean probably isn’t • Note deficiencies and resist the urge to excuse them (“He’s often late, but he has small children…..”) • If there’s an improvement plan, give a deadline for re-evaluation • Stick to the cycle and use the correct forms! (and make sure your deans do, too)

21. Do I Need to Change my Evaluation if an Employee Disagrees? • No! If you have done a fair evaluation, stick with it • Employees will sometimes pressure you to give higher rankings • They have the opportunity to respond in writing and have that response added to their personnel file • Usually, you and the employee can mutually agree to re-evaluate

22. Helpful Phrases to Stimulate Separation • “Sometimes it just doesn’t work out” • “Not everyone is a good fit” • “It seems that you have goals that are different from the college” • “Perhaps you misunderstood the position” • “We may have given you the wrong impression about what we needed” • Always offer the opportunity to resign instead of being terminated – with a deadline

23. Other Issues You Have Encountered?