Cases Presented to Four Legislators at an Oct 16, 1997 Hearing at the UA Campus

 

(1) Prof. Jon Solomon, Classics, UA

Prof. Solomon, as newly appointed Acting Department Head,  made verbal reports to his Dean and the University Comptroller=s office on fiscal mismanagement (the Department Business Manager was receiving unauthorized pay for excessive vacations).  The Dean expressed great irritation at receiving these reports.  At this time, Prof. Solomon had seven prestigious awards for his excellence in teaching, including the Alumni Creative Teaching Award and the American Philological Association Award for Excellence in the Teaching of the Classics.  He was teaching approximately 900 to 1800 undergraduates yearly, and in addition had written more than 40 scholarly articles and one book.  His service activities were also heavy, and included being Acting Head of Classics and running the Humanities Seminars programs.  All of these activities were well above average for a faculty member at his then Associate Professor level in the humanities.  However, he was then denied the right to be considered for promotion each year for three years after his report of mismanagement.  Another pair of incidents occurred, with Prof. Solomon, in which he reported an abuse of authority followed by a reprisal.  Prof. Solomon was the featured faculty member on a 1995 TV show of A60 Minutes@ whose subject was the lack of university emphasis on undergraduate education (a mismanagement of university resources).  He was immediately afterwards castigated in a personal meeting with Provost Paul Sypherd.  Within the next few weeks, Vice President for Undergraduate Education Michael Gottfredson wrote to many of Prof. Solomon=s students, telling them they were forbidden to receive course credit for writing about material observed during field trips with Prof. Solomon.  Vice President Gottfredson also informed Prof. Solomon that he could no longer guide summer field trips for students to Greece (even though these trips were entirely private and made without university involvement).  It is because of harassing actions such as this that we suggest the statute ARS 38-531 be amended to insert "actions, including but not limited to@ before the current list of prohibited personnel actions.

 

(2) Kevin McHugh, former UA staff member (Computer Systems Designer)

In 1992, Mr. McHugh reported the long-term presence of formaldehyde fumes and illegal hazardous material handling in his work area, adjacent to an anatomy laboratory in the College of Medicine at the UA.  Consistent release of these fumes was illegal under 29 CFR 1910.1048

(OSHA Formaldehyde Standard), and an act of mismanagement covered under ARS 38-531. 

The level of formaldehyde fumes was in excess of the levels at which they would be dangerous to health as defined by OSHA.  The College of Medicine was cited and fined by OSHA in January, 1993.  Mr. McHugh, who had never received a negative performance evaluation, was then abruptly terminated from his employment, a prohibited personnel action under ARS

38-531.  In April 1994, Mr. McHugh filed another complaint with OSHA related to

mandatory medical examinations and his right to return to work.  This was again a violation of OSHA 29 CFR 1910.1048 and an act of mismanagement and abuse of supervisory authority under ARS 38-531.  In December 1996, OSHA again cited and fined the University for illegal actions of retaliation based on Mr. McHugh's reports and complaints.  On December 31, 1996, Mr. McHugh was again fired from his job, again a prohibited personnel action under ARS 38-531.

 

(3) Gayle Semida, former UA staff member, Media Specialist

Ms. Semida was subjected to the formaldehyde fumes reported by Kevin McHugh  (above).  She was requested, by her supervisors, to report any adverse health effects she was suffering subsequent to the exposure to the fumes.  She did report adverse health effects, and was requested to go for an examination to a university physician at the Toxic Exposure Clinic at the UA for evaluation.  She did go for this evaluation and was told her symptoms were consistent with deleterious exposure to formaldehyde fumes.  She then also obtained a second opinion from an outside physician, who confirmed that she had symptoms consistent with formaldehyde poisoning.  The University then required that she undergo examination and testing by an expert (who charged her $1,400 for which she was not reimbursed for more than 18 months) who also confirmed that she appeared to be suffering from adverse exposure to formaldehyde.  Ms. Semida made a written request, following OSHA regulations, reporting the formaldehyde fumes (a case of mismanagement, reportable under ARS 38-531) and requested duties in an area removed from the formaldehyde exposure location, to prevent further exposure.  This was denied (an abuse of authority, reportable under ARS 38-531), and told to continue to work where she could smell the formaldehyde (any perceptible odor of formaldehyde indicates that the fumes are already well above the level considered dangerous upon prolonged exposure).  She refused to work in that location, but continued to perform her duties from her home, for a period of months.  She was then retroactively placed on leave of absence (which she had never taken) and then terminated from employment, which would have been a prohibited personnel practice under ARS 38-531, as a retaliation for continuing to report fumes and requesting her rights under OSHA guidelines.

 

(4) Prof. David Iadevaia, Physics and Astronomy, Pima Community College East Campus

Prof. Iadevaia teaches physics and astronomy at Pima College, has received a Distinguished Faculty Award in April 1997, among other teaching awards.  He is rated between Very Satisfactory and Extremely Satisfactory on student evaluation forms.  Prof. Iadevaia wrote a memorandum on Nov. 19, 1996, which went to a member of the Pima Community College Board of Governors, the President of the campus, to the administrator in charge of risk management, and to his dean, among others, notifying them that there was an unsafe condition in the student physics laboratory and a student had gotten injured.  He noted his frequent prior requests for the hiring of a properly qualified lab manager to prevent dangerous situations, and that his requests for safety were being ignored (this is a properly reported case of abuse of authority and mismanagement under ARS 38-531).  Subsequently, his physics teaching materials and his campus computer were locked up and made inaccessible to him (a prohibited personnel practice under ARS 38-531 as improper Acorrective action@, and, when asked to attend a meeting to deal with solving the physics lab problem, he was informed that he was under verbal counseling.  Subsequently, a written letter of reprimand was placed in his file for one year, a prohibited Adisciplinary action@ under ARS 38-531.  This matter should be able to be brought to the State Personnel Board, as an adverse personnel action taken subsequent to a report of mismanagement.

 

(5) Prof. William Dever, Near East Studies, UA

Prof. Dever was brought to the UA in 1975 and asked to establish a major program in Near Eastern Archaeology.  He did this, and by 1993 had established the largest graduate program in the world in this field.  The excavations of this program were entirely supported by outside grants.  He had also published 15 books and 250 articles.  However, while he was still department head of Near East Studies in 1991-1992, he criticized some policies of the current administration which he believed were inappropriate.  He reported that administrators had been interfering gratuitously in the internal affairs of the department, particularly in the hiring and retention of faculty members, thereby overturning majority decisions of the department, while offering no rationale for their actions.  This was a reported abuse of authority.  Subsequently, in 1993, the upper administration decided to close the entire graduate program, substantially changing the duties and responsibilities of Prof. Dever, an act that could be judged by the state personnel board to be a prohibited adverse personnel action under ARS 38-531, section Al@. 

 

(6) Associate Professor Jared Sakren, Theatre Arts, ASU

Associate Prof. Sakren was brought to ASU to found a Masters in Fine Arts Program and Graduate Acting Program in Theatre Arts in 1994.  He succeeded in achieving a nationally recognized program in this area.  However, after the first year, a new Dean took exception to the content of his teaching and its amount of emphasis on Shakespeare and other classical writers.  The disapproval of the Dean was expressed through mechanisms whereby supportive documents were shredded, false accusations were made, students were pressured to file grievances against him, and through statements that Shakespeare and other classical writers represented a sexist European male canon that should not be taught. These are all acts that would be prohibited by ARS 38-531 as abuses of authority and mismanagement.  Assoc. Prof. Sakren made numerous formal written complaints about these abuses of authority by his Dean and Department Chair during his improper evaluations (each of the first three improper evaluations, carried out with such acts of mismanagement, were subsequently overturned upon appeal to review committees).  Assoc. Prof. Sakren made his complaints to the Provost and the President, as required under the University=s internal grievance/whistle-blower policy.  Subsequent to some of the numerous written complaints of abuse of authority, Assoc. Prof. Sakren received reprisals in the form of removal from his graduate teaching responsibilities and assignment to classes usually taught by teaching assistants, assignments which would have been prohibited under section Al - significant change in duties inconsistent with the employee=s grade level@ of ARS 38-531.  In addition, his directorship was removed, which constitutes a demotion, forbidden under ARS 38-531 section A3 e.@  Finally, he was given a terminal appointment, maintained by ASU President Lattie Coor, even though the committee evaluating his grievances (the Committee on Academic Freedom and Tenure) determined that the terminal appointment was arrived at by a completely improper review procedure.

 

(7) Asst. Prof. June Jaramillo, Spanish and Portuguese, UA

Asst. Prof. Jaramillo has received a number of awards and nominations for awards for excellence in teaching in the six years she has been at the UA.  She also published six very lengthy articles and two shorter articles, an amount of publication at the usual level for a faculty member who is subsequently awarded tenure.  However, when she was in an automobile accident, and directed by her physician to reduce her activities for a period, her department chair refused to allow a delay in her Atenure clock@ as is standard in such cases.  Asst. Prof. Jaramillo made a formal protest of this refusal to allow physician-directed reduction in her activities in writing to Dean Charles Tatum, Provost Paul Sypherd, and to then President Manuel Pacheco.  This was a formal notification of an act of mismanagement on the part of her department head, as should be recognized under ARS 38-531.  Even without the delay in her tenure clock, she subsequently was given a positive evaluation by the majority of her peer evaluation committee, recommending promotion to Associate Professor with tenure.  However, her Department Head wrote a confidential memo to her Dean, which was a detailed denigration of her performance, ignoring the strong positive factors noted by the majority of her peer evaluation committee.  This resulted in her being given a terminal contract.  The state personnel board could judge this a prohibited personnel practice (under ARS 38-531) by her department head after she blew the whistle on his mismanagement of her physician-requested reduction in activities.

 

(8) Israel Vargas, UA custodian staff member

Mr. Vargas had an excellent employment record at the UA for 9 years.  Then he assisted another staff member in notifying Vice president for Finance Joel Valdez and also the UA Police Department that there was an abuse of authority.  He reported that one of the Supervisors in the Plumbing Department was illegally selling UA plumbing supplies.  This is an abuse of authority under ARS 38-531.  Mr. Vargas also made a formal complaint to the Federal Office of Contract Compliance, during a meeting requested by Investigator Jose Franco, representing concerns of  custodians at arbitrarily having their work schedules altered in a manner that caused serious hardship.  This was a complaint of mismanagement that should be covered under ARS 38-531.  Immediately after his reports of abuse of authority and of mismanagement, he had the minor infraction of failing to report his observation of other employees drinking beer on the job.  Allegedly based on this failing, Mr. Vargas was placed on suspension and relieved of all duties.  This could be judged to be a prohibited personnel practice under ARS 38-531 section Ae- suspension,@ after his reports of abuse of authority and mismanagement.

 

(9)  Prof. Miklos Szilagyi, Electrical and Computer Engineering, UA

Prof. Szilagyi had reported what, in his opinion, would be an act of mismanagement.  That is, he was requested, along with others in his department, to give his opinion of a particular candidate for head of his department.  He made a  public statement at a faculty meeting that the individual involved lacked the qualifications to be head, and indicated that it would be mismanagement to appoint this person as head.  Mismanagement is an improper action under ARS 38-531.  Thus, the information he had disclosed was the improper qualifications of the proposed head.  This person was then appointed as head, and took adverse personnel actions against Prof. Szilagyi for the next ten years (the head left the department after ten years).  Such reprisals are prohibited under ARS 38-531.  Specifically, there was independent evidence that Prof. Szilagyi had excellence in both quality and quantity of teaching, research and service.  For instance, he taught, during one particular year, about 300 undergraduates plus 18 graduate students and he graduated three PhD students.  In addition, a Distinguished Professor evaluated his teaching as being "in the top 10% of the good teachers" he had observed, and Prof. Szilagyi published twelve papers in one year in refereed research journals (and currently has more than 130 publications in refereed journals plus eleven books - an amount of publication well above average for a full professor), was an elected member of the Faculty Senate and the Committee of Eleven and spent considerable time doing volunteer work for the University's outreach program.  However, every year the head rated Prof. Szilagyi as unsatisfactory in all three areas of teaching, research and service and denied him any merit raises for ten years.  As a result, Prof. Szilagyi=s salary is lower than that of every full professor and even most of the associate professors in his department. This is a clear reprisal under ARS 38-531.  Although the current whistle-blower law requires a report of mismanagement to be made to a public body defined as attorney general, legislature, governor, law enforcement agency, county board of supervisors, or agency director, we are requesting that this be expanded to include reports made to any supervisory personnel within a public agency (similar to laws in Colorado and New Jersey).

 

(10) Don Awerkamp, lawyer (represents grievants, at the UA)

        Mr. Awerkamp described the case of one of his clients.  This client is a woman who reported sexual harassment from a supervisor and retaliation for complaining of it.  Her report was made in writing, to the designated authorities at the UA.  Sexual harassment and retaliation by a supervisor is an abuse of authority, an improper action under ARS 38-531.  The investigation

prescribed by U of A procedures resulted in a written finding supporting her complaint and included recommendations to remedy the situation.  The case then went to President Pachecho for disposition.  Meanwhile, the woman was subjected to further retaliation.  Instead of remedying the situation, President Pacheco appointed an administrator to review the case and advise

him.  At this point, the woman offered the administrator the names of two further women who were also sexually harassed by that supervisor and two additional women that observed the reported sexual harassment and retaliation.  The administrator did not interview any of these four

witnesses or the complainant, but reported that there was no evidence of sexual harassment or retaliation.  President Pacheco then used his absolute discretion under the University "whistle-blower policy" to refuse to remedy the situation and to simply dismiss the complaint.  Mr. Awerkamp became involved then and threatened litigation.  The University then again changed

its position and then finally remedied the situation at additional cost to the taxpayers to compensate for the continued damages.  Mr. Awerkamp pointed out that some of the retaliation by the supervisor would not be included among those listed in ARS 38-531 as a possible adverse personnel action.  He recommended that the statute be amended to insert "actions, including but not limited to" preceding the list currently in the law.  He also recommended amending the statute to allow 180 days instead of 10 days to file with the State Personnel Board.

 

(11) Marguerite Kay, M.D., Regent's Professor at UA, Department of Microbiology and Immunology

Prof. Kay had made a number of reports to administrators of apparent double-charging of items on her National Institutes of Health (NIH) grants.  While overhead charges of 51.5% of the award amount are made to the NIH for services connected to funded research, she reported in writing that, in an apparent abuse of authority, her grants were billed directly for on-campus delivery charges, for replacing a cracked sink (that was cracked before she moved into her lab) and for washing the floors.  Such abuse of authority is an improper action under ARS 38-531.  More recently, Dr. Kay reported the administration for charging the Veterans Administration for work not performed on a contract.  Subsequently the administration shut down her research based upon unsubstantiated and undocumented allegations against her by a former disgruntled employee, and the administration initiated 8 investigations of her in a period of 7 months.  A number of these investigations violated numerous written rules set in place by the Arizona Board of Regents Policies, the UA Faculty Constitution, the UA Faculty Bylaws, and the Committee on Academic Freedom and Tenure Conflict of Interest Policy.  These acts are adverse personnel actions prohibited by ARS 38-531 as being reprisals in the form of Adisciplinary or corrective actions, and significant change in duties [suspension of her research activities] or responsibilities which is inconsistent with the employee=s salary or grade level.@  Under ARS 38-531 it is up to the State Personnel Board to determine whether the prohibited personnel practices were committed as a result of the disclosure by the employee, or whether the adverse personnel practices were proper discipline for cause.  As Dr. Kay stated at the end of her presentation, she Adoes not expect any help for herself from this.@  She Ajust wants to make sure that the same thing does not happen to anyone else.@