Saving Senate from itself

Much has been made at UBC on the subject of governance, sparked by such diverse issues as the sudden resignation of Arvind Gupta, the violation of academic freedom that occurred in the aftermath of the resignation, the university’s non-response to complaints of sexual assault, and the handling of a petition to ask for divestment from fossil fuels.

Most of the discussion has been focussed narrowly on the Board of Governors and senior administrators, since it is within their ambit that this series of unfortunate events lies. A vote of non-confidence in the Board was held, and more than 800 faculty members voted to censure the Board for its perceived failures.

But largely forgotten in the discussion are the facts that UBC is a bicameral institution, and that the UBC Senate is is endowed by the University Act with expansive powers to manage the academic affairs of the institution. In principle at least, the Senate is one of the routes that faculty have towards self-governance. One is led to ask, therefore, whether the state of governance at Senate is any better than it is in the university at large. Regrettably, the answer seems to be in the negative, and many of the problems seem to be common to the university as a whole.

Dysfunction at Senate came to light this week by way of a motion tucked away on page 148 of the docket for the meeting scheduled for September 14th. This item contains a list of 4 names advanced by the Senate Nominations Committee to be members of the search team for the new Provost and VP Academic, as mandated by UBC’s Policy 18. The four persons named on the list were a current Dean  (as required by policy 18), a former Dean, a current Associate Dean, and a member of the Senate Nominations Committee responsible for producing the list in the first place. In other words,  two administrators, a former administrator, and a person who nominated himself. No student was selected, despite the fact that student representation is explicitly mentioned in Policy 18, and neither was any rank-and-file faculty member. The list was produced without any broad call for candidates, either within Senate, or to the university as a whole.

Fortunately, consideration of this list was postponed by President Ono, who has asked the Senate to solicit nominations for his advisory committees from the community. In a further — and most welcome — development he also expressed, in his comments at Senate, his desire to conduct an open search for the Provost, and to give the community the opportunity to interact with the candidates. One can only hope that such a process is indeed adopted, and that Professor Ono’s demonstrated commitment to transparency becomes part of the culture at UBC.

A closer look at the powers of the Senate Nominations Committee and at the way it is established, is revealing by way of contrast. The Nominations Committee is responsible for setting the membership of every other Senate committee, and for nominating Senate-selected persons to university wide searches for such persons as the President, Provost, or other senior administrators. In some very real way, it is the most powerful of all the committees on Senate, in as much as it gets to decide which Senators have roles in such key committees as the ones dealing with academic policy, academic disciple, or the agenda committee, the last of which determines which issues are or are not considered in Senate.

So who gets to be on the Nominations Committee? Does it nominate itself? The Senate website is largely uninformative on this point. But, as it turns out, the committee is elected on at the very first meeting of a newly constituted Senate — its membership is determined by vote prior even to the first meeting. While the exact procedures are obscure, it appears that the nominations and voting take place in the summer prior to a new Senate being struck, and before the new members of Senate have even met or interacted with the people whom they are supposed to elect. It is hard to imagine how such procedure is compatible with even the most elementary notions of good governance. Forming the most important committee of Senate when Senate is in recess, and prior to formation of the new Senate, seems designed to be perversely antidemocratic and to suppress broad participation.

Predictably enough, the nominations generated by this committee are not the sort that inspire confidence. The same names show up multiple times on many of the important internal senate committees, and in this year’s round of nominations to the various external searches, many large constituencies, such as the Faculties of Science, Law, Education, and Commerce have no representation whatsoever. The questionable practice of naming people serving on the nominations  committee itself to the committees it is supposed to populate also seems to be accepted.

Sad to say, the Senate, is just as much in need of a governance review as the rest of the university. It appears to be run under arcane and arbitrary and undemocratic procedures, which are not documented and which live in the folklore of the administrators charged with running the system. This is a UBC-wide phenomenon — there are few documented procedures for managing such basic issues as access to information, conflict of interest, or public accountability, and little credible oversight, leading to major decisions and processes being conducted in inappropriate and ad-hoc ways. Certain individuals occupy key adminstrative roles for extended periods of time (decades, in some cases), and inevitably, institutional inertia sets in.

This pattern can be seen repeating itself in many of the issues cited at the beginning of this post — such topics as managing the university president, or handling sexual assault are inherently delicate and complex, but it is abundantly clear that the problems were amplified by poor decisions around process and communication. At the end of the day, university actors such as Board members or Senators presumably try to follow the rules (in as much as any rules exist) so the first step to good governance is to carefully consider the basic operational framework in which the Board and Senate operate, and to set clear and public standards for accountability, fairness, accountability, and transparency in administrative processes. Points of administrative weakness (and I would suggest that poor communications and general indifference to due process and the public interest are high on that list) should be identified, and appropriate remedies put in place. Poor governance is not a Board issue, or a Senate issue — it is a UBC issue, and our whole administrative  culture is infected.

Inquires, again

This post is a continuation of my earlier post,  An Inquiry into Inquiries, and is generated by UBC’s recent release of the Butler report on the investigation into the mishandling of complaints of sexual assault. In the earlier piece, I expressed concern that the Butler inquiry would have little to offer the women who brought forth complaints of sexual assault by a student, and it is an unhappy fact that this gloomy prediction proved to be correct.

Ms Butler found no evidence of any wrongdoing by the University, and no breaches of any existing UBC policy. She found also that university staff involved all acted in good faith. A summary of her report may be found here; it makes a few findings of delay, human error, and lack of clarity in procedures, declares all university actors acted in good faith, and that’s about it. The report offers even less to those who might want to conduct an intelligent debate on the subject of the investigation: none of the evidence is available to those us who might want to make up our own minds on the subject. Indeed, the report offers so little of substance that it’s hard to even write about it.

The women whose lives were affected by the events in question receive scant attention from Ms Butler. They are offered a scant paragraph, which acknowledges that they felt silenced, but the report goes no further than that, and assigns no responsibility for any suffering that might have been inflicted. The origin of the investigation was the fact that six women made complaints of assault, and that they received little or no remedy from the university — while it may be reassuring for the community to hear that no policy was violated and that the university acted in good faith, it seems less than satisfactory from the perspective of victims of sexual assault, whose suffering presumably goes further than simply being “silenced,” and who might reasonably expect some kind of redress. I can find no public record of Ms Butler’s mandate, but it seems clear enough from reading the report that the effects of UBC processes on complainants was not a primary focus.

It is not surprising, therefore, that one of the complainants proposes to pursue the matter before the human rights tribunal. The marginalization of the complainants in Ms Butler’s report strongly suggests that an outside complaint is the only way to exert pressure on the university to take responsibility for events occurring under its aegis.

The report does not appear in isolation. It comes in a context where the university is experiencing a major public outcry around general questions of transparency and accountability, sparked by events around the resignation of the former President Dr Arvind Gupta, as well as the misappropriation of funds in the Faculty of Dentistry, a breach of academic freedom, and a decision to ignore a petition for disinvestment in fossil fuels which seems to place duty to donors above duty to the community.

In this context, the Butler report reads like yet another UBC media release (and there have been many) that declares no evidence of any problems, which absolves the University administration of any responsibility, and which sidelines the concerns of the persons whose lives were affected by the incidents in question. The common theme in all these matters is an institutional approach which seems to focus on the corporate aspects of the university’s administration more than it does the interests of the community, whether faculty, staff, or students.

The AMS Society and the UBC faculty have both independently called for an external review of the Board of Governors, and one is led therefore to ask what sort of review might actually have some teeth, and address the interests of the community rather than protect the image of the university. Would the Board (or the Government) agree to a review  which gives a third party access to Board deliberations and committee meeting minutes, which seems to be what is wanted? If it did, what sort of limits could the Board reasonably be expected to set? Who should conduct such a review, and what confidence do we have that any finding would be implemented? What are the elements that the community would require? And what recourse would there be if the Board and Government simply refuse?

I do not know the answer to these questions. But those of us — and I am one — who wish to see an inquiry into the Board and the Board Secretariat, might be well advised to move away from general calls for transparency to thinking in more specificity about what an inquiry might look like, about who might conduct it,  and how it might be generated.

An Inquiry into Inquiries

The University of British Columbia has suffered an unpleasant string of crises since the sudden resignation of Arvind Gupta as President in August 2015. The furore occasioned by his unexplained departure was rapidly followed by allegations that the Chair of the Board of Governors had interfered with a faculty member’s academic freedom and by the resignation of that Chair of the Board. More recently the University has seen a documentary on national television alleging that University neglected to take seriously complaints of sexual assault; the bringing of a 10-million dollar lawsuit by the federal government for the misappropriation of funds by an Associate Dean in the faculty of Dentistry; and the public suspension of a prominent author and public figure from a university position on the grounds of serious but unspecified allegations.

Each of these individually would be embarrassing enough; taken together, they paint a disturbing picture of administrative malaise. The University has consistently taken the position that the UBC “brand” is strong enough to wear these shocks, but there’s no question in my mind that the University’s reputation has suffered, at least amongst the academic community: people are asking what on earth is going on at UBC, and what the institution proposes to do about its failures as it moves forward.

The sad fact is that we don’t really know what is going on at UBC. Accurate information about Guptagate is hard to come by, and we don’t know all that much about the other scandals either. What we do know, however, is that the university has launched a number of high-profile inquiries in recent months, and these inquiries form the core of the university’s response to the problems that beset it.

So what is an inquiry? More to the point, what is an inquiry not?

An inquiry, in the sense it’s being used at UBC, is an administrative process. The persons involved sit down with a qualified individual (the investigator) and tell their versions of the story; the investigator interviews them and any relevant witnesses, and eventually comes to some set of conclusions which are set down in a report. The scope of the report and the scope of the conclusions are limited by the mandate given to the investigator at the outset.

Inquiries of this kind happen all the time in the workplace. Typically, they are low-key affairs, conducted by the HR Department, perhaps with the participation of a trade union or any other organization that may be involved. The fact of the investigation is not made public, and neither is any report, in accordance with standard labour practices.

The recent inquiries at UBC are of a slightly different flavour. The issues at hand are high-profile and of great interest to the university community. Suitably high-profile outside investigators have been hired to conduct the processes: the Honourable Lynn Smith, who was charged with investigating a complaint of violation of academic freedom, is a former Judge at the Supreme Court of British Columbia, and Paula Butler, who is currently investigating the handling of complaints of sexual assault, is a well-known labour and employment lawyer. The terms of reference of each of these inquiries include the issue of a public summary of the findings and some level of public engagement with the results, since the issues under investigation have serious implications for the future operations and policies of the university.

These sorts of inquiries are not judicial processes in the way that a court case or even an arbitration might be. Generally speaking, the mandate of the investigator is confidential, the participants are not under oath, there may not be any lawyers present, and there is no opportunity for any cross-examination of the witnesses. And if that weren’t enough, the mandate may not include the power to impose sanctions, and it’s not at all clear from the outside what sort of investigation was actually done. The actual report is a non-binding document that belongs to the participants; the only thing the public gets is a summary of the findings, if such a thing was included in the terms (which is the exception rather than the rule).

The point here is that the summary that makes up the only public record of such an investigation is a pretty weak instrument for any kind of public engagement or public policy. It is a purely administrative document, not a judicial decision, and as far as shedding light on the case at hand goes, it may be neither effective nor satisfying. Implementing the findings of such a report are up to the parties, and what happens in practice is anybody’s guess, since the issue of remedy and redress for the facts determined by the investigation is often hived off to a separate and less public process.

The public summary of Lynn Smith’s report on the allegations of violation of academic freedom is a case in point. Justice Smith made the Delphic pronouncement that while no single individual was guilty of violating academic freedom, the collective actions and inactions of a group of persons did have exactly this result, and she points out 3 specific points of failure, without supplying detail. The unfortunate fact is that, no matter how thorough her investigation might have been, the public doesn’t have the context in which to interpret her summary. The university’s response has been predictable – appoint a new adminstrator, and develop new administrative processes.

The public version of the Butler investigation of the complaints of sexual assault is yet to be revealed. Ms. Butler’s mandate does not seem to be public, and it’s hard to predict what her findings will be. My fear is that restorative justice for the complainants will be eclipsed by generalities about administrative process: new policies, new positions, new procedures, but little to transform the underlying culture that that led to the complaints in the first place. It is a sad fact that inquiries are creatures of administrative practice, designed for resolving administrative problems in the workplace, rather than instruments for the delivery of justice.

The good news is that the complainants in the sexual assaults have recourse to other avenues to seek justice. At least one complainant has announced the intention of a complaint before the Human Rights Tribunal, which is an entirely different beast: it’s a public affair, with testimony delivered under oath, and in front of a body with the power to order specific compensation and remedies. As such, it’s a much more powerful (and empowering) venue, and one that is responsive to the needs of the complainant as well as to those of the institution.

To me this is the crux of the issue. UBC is a massive and complex institution, but, more than that, it is a large and complex community of people. We play host to fifty thousand students, to any number of faculty and staff, and increasingly, to people who simply live in the residential buildings that have sprung up across campus. However, it is governed by statutes and process that are cobbled together from the Universities act, administrative law and — increasingly — corporate practice. HR practices such as inquiries are designed to address workplace issues, not core policy and justice questions such as sexual violence, or freedom of expression in a community that’s equivalent to a small municipality.