Update: Berdahl has caved, mostly, after Geller wasted untold hours of faculty time on this. Not to mention his weird threats below. Berdahl can’t quite make himself admit that the UO Senate has to approve this policy first, but he’s postponing hearings until UO is in session. Meanwhile, he wants to let the interim random drug testing begin:
From: Bob Berdahl <[email protected]>
Date: Tue, Jul 31, 2012 at 9:49 AM
Subject: Rule making
Dear Senate President Kyr and IAC Chair McWorter,
Thank you for your correspondence requesting a modification to the
schedule for hearings in the rulemaking process associated with random
drug testing for our student athletes. I appreciate your attention to
this and your suggestion for scheduling that reflects better the
academic calendar. I write to convey that we will postpone the
formal rulemaking hearings until after the beginning of the academic
year.Because we have a pressing need to have this testing in place as our
athletes reassemble in September, we will be implementing the
procedure of “temporary rule making” that will allow testing beginning
September 1st. This use of the 60 day temporary rule with formal
hearings on the permanent implementation of the rule taking place
after school is back in session will allow us to meet the immediate
need for this procedure while respecting the request you make that
broader hearing.Thank you for your attention to this.
All the Best,
Bob Berdahl
_______________________________________________
IAC2012-13 mailing list
[email protected]https://lists.uoregon.edu/mailman/listinfo/iac2012-13
But he’s wrong about the 60 day rule. He cannot act unilaterally:
Policy Review and Approval
… If the Senior Vice President and Provost endorses the Policy Statement, then it will be submitted to the Senate Executive Committee who will decide whether a full-Senate review is necessary. If the Senate Executive Committee determines that full-Senate review is not necessary, the PL Program Manager will send the Policy Statement to the President for approval. If a full-Senate review is necessary, the Policy Statement will be placed on the agenda of the next Senate meeting. However, if the Senate is adjourned for the summer, the Policy Statement may be placed in the Policy Library on an interim basis and will be scheduled for review when the Senate reconvenes in the fall. …
And he’s not willing to follow UO policy on emergencies:
Emergency Policies
If the University needs to comply immediately with federal, state or local law, or in the case of an immediate emergency, the President has the authority to issue a temporary, emergency policy or temporarily suspend an existing policy without following the procedures described in this Policy Statement. Each action of this type shall if possible be taken only after consultation with the Senate Executive Committee, shall have a duration of no more than six months, and shall be non-renewable and non-extendable. If the President wishes to make the action permanent, the President shall follow the process in this Policy Statement. If the process cannot be completed within six months, the President can take further emergency action.
7/31/2012. In response to demands from Senate President Kyr and others including Frank Stahl, Nathan Tublitz and John Bonine, UO General Counsel Randy Geller announced yesterday he’s rescheduling his random drug testing hearing.
But it’s a sham, he’s picked another date when school is out of session. And he completely ignores the faculty / administrative agreement calling for UO policies like this to go through the Senate. That “policy on policies” agreement with Lariviere had been the Senate’s major accomplishment for 2011-2012. Now Geller thinks it isn’t worth a mention.
Geller also claims Senate President Rob Kyr and the IAC Chair made false and offensive comments about the university’s rulemaking process. Apparently that process’s feelings have been hurt, so Randy asks Kyr et al to apologize to it, and to some especially sensitive senior administrators:
Dear Rob and Brian:
I received your email of July 24, 2012, requesting a delay in the public hearing scheduled for August 23rd, 2012. The hearing will be rescheduled for September 13, 2012. Written comments will be accepted until noon on September 14, 2012. We will similarly postpone the date the rule will be filed with the Secretary of State and become final. The rule will be filed on September 21, 2012.
Your allegations about the University’s rulemaking processes are offensive and false , as are the comments made publicly by members of the Intercollegiate Athletics Committee. I ask that you apologize in writing to President Berdahl, Rob Mullens, and me. I also ask that you censure the members of the IAC who have published offensive and defamatory comments.
Randolph Geller
General Counsel
University of Oregon
I like that “in writing” part. Maybe Geller wants Kyr to stand in front of the whole class and use the blackboard, like in third grade? Geller sent this out yesterday. Berdahl’s last few days look to be as crazy as his first. Adult supervision supposedly returns Aug 1, but Gottfredson still hasn’t signed his contract. and Gottfredson apparently signed his contract last night.
“Because we have a pressing need to have this testing in place as our athletes reassemble in September, we will be implementing the procedure of “temporary rule making” that will allow testing beginning September 1st”
What “pressing need”? Why is random drug testing so important right NOW? Hmm. I wonder.
Money for the coaches and dope for the players – business as usual. Just walk on.
Did Kyr apologize?
The distinction between Rules (OARs) and Policies and the roles that each play in UO governance appear to be a source of ongoing confusion. Below, I quote the definition of an OAR and, with CAPITOL LETTERS, pick out the definition that is commonly understood to apply to UO-promulgated OARs that relate to UO policies
“State agencies are authorized by the legislature to adopt administrative rules. The Oregon Attorney General’s Administrative Law Manual defines “rule” to include “DIRECTIVES, STANDARDS, REGULATIONS OR STATEMENTS OF GENERAL APPLICABILITY THAT IMPLEMENT, interpret or prescribe law or POLICY or describe the agency’s procedure or practice requirements.”
I.e., at UO, OARs cannot be used to establish policy; instead, they describe the machinery by which a policy shall be implemented.
The UO Constitution and the UO policy on Policy Statements: Development and Management (http://policies.uoregon.edu/policy/by/1/01-administration-and-governance/policy-statements-development-and-management)
are clear on directing policy proposals to the Senate Executive Committee for determination of their academic relevance, with those considered to have significant relevance brought to the Senate for action. It has been an understanding of almost everyone involved in implementing the UO Constitution that any OARs seeking to establish or amend policy would similarly be brought to the Senate Executive Committee for consideration. However, judging from Randy Geller’s action regarding drug testing, not everyone has that understanding. Perhaps the Constitution and the Policy on Policy Statements, as presently written, are not sufficiently explicit on this matter. If so, the Senate should take action to codify that understanding. Such an action might read something like this:
“OARs propagated by the UO are defined as “directives, standards, regulations or statements of general applicability that implement law or policy or describe the University’s procedure or practice requirements. Those that refer to UO policies are congruent with the those policies as set forth in the Policy Library.
Or, the action might read like this:
“ All University-proposed OARs that seek to establish or amend a University Policy shall be submitted to the Senate Executive Committee for determination of their academic relevance. Those of academic relevance shall be submitted to the Senate for action as a Policy upon which the proposed OAR shall be based.”
It is up to younger heads to put these thoughts into their most succinct, compelling and legally precise form. I close with the reminder that it is important to establish a role for the Senate in the creation of OARs of academic relevance. A failure to do so would leave open a route by which the President, or the GC acting at the request of God knows whom, can unilaterally determine such policies.
Crazy Randy
I move the Senate meeting begins with a motion to request an apology from Geller