MMA C.S.S.B. 149 75(R)BILL ANALYSIS HIGHER EDUCATION C.S.S.B. 149 By: Bivins (Cuellar) 4-27-97 Committee Report (Substituted) BACKGROUND Currently, to receive tenure a professor must exhibit excellence in teaching, research and service over a six- or seven-year period. More than 26 states are evaluating the need for performance evaluation of tenured faculty (post-tenure review) programs. PURPOSE C.S.S.B. 149 establishes guidelines for performance evaluation of tenured faculty at certain institutions of higher education. RULEMAKING AUTHORITY It is the committee's opinion that this bill does expressly grant additional rulemaking authority to each governing board of an institution of higher education under SECTION 1, Sec. 51.942(b) and referred to in (c), (f) and SECTION 2 of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter Z, Chapter 51, Education Code, by adding Section 51.942, to read as follows: Sec. 51.942. PERFORMANCE EVALUATION OF TENURED FACULTY. (a) Defines "governing board" and "institution of higher education." (b) Requires each governing board of an institution of higher education to adopt rules and procedures for a performance evaluation process of all tenured faculty at the institution. Authorizes the governing board to design its rules and procedures to fit the institution's mission, traditions, resources, and circumstances relevant to its character, role and scope in addition to any others the governing board may determine. Mandates the governing board to seek advice and comment from the faculty of the institution before adopting rules pursuant to this section. States that the advice and comment from the faculty regarding performance evaluation of tenured faculty shall be given the utmost consideration by the governing board. (c) Requires the rules for the performance evaluation process, as provided in Subsection (b), to include the following: (1) that the rate at which tenured faculty is reviewed be at least once every six years, but not more than once a year, after receiving tenure or an academic promotion; (2) that the evaluation be based on the professional responsibilities of the faculty member (i.e. teaching, research, service, patient care and administration). Also requires that the evaluation be conducted according to commonly accepted academic procedures, including notice of the scope and manner of the evaluation and the opportunity to provide documentation and be subject to review by faculty peers selected in a manner designed to maximize objectivity and relevance; (3) that the process be directed toward professional development of the faculty member; (4) that the process incorporate commonly recognized academic due process rights, including notice and an opportunity to be heard before being subject to disciplinary action on the basis of an evaluation under this section; (5) that a faculty member may not be subject to revocation or other disciplinary measure unless professional incompetency or other good cause is determined. (d) Mandates governing boards to implement procedures that allow faculty members subject to termination to have the opportunity to refer the matter to a non-binding alternative as stated in Section 154.001, Civil Practice and Remedies Code. Provides that if the parties are in agreement they can choose another type of dispute resolution method. Mandates that termination proceedings under this section be only for good cause and be conducted in accordance with institutional policy incorporating academic due process rights including certain requirements. Requires the governing board to provide written findings of fact and conclusions of law to support any termination decision. Establishes the standards and duties for a mediator who is acceptable to the parties. (e) Prohibits governing boards from waiving the evaluation process for any faculty member granted tenure at an institution. (f) Requires each governing board to file a copy of the rules adopted pursuant to this section, and any amendments to such rules, with the Texas Higher Education Coordinating Board, by September 1 of each year. SECTION 2. Requires that the rules adopted by a governing board of an institution provide, by January 1, 2004, for the post-tenure evaluation of each faculty member tenured at the institution as of January 1, 1998. SECTION 3. Effective date: January 1, 1998. SECTION 4. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 149 changes the evaluation name from "post-tenure review" to "performance evaluation of tenured faculty." This change clarifies that the intent of the bill is to evaluate the performance of faculty. Makes conforming changes throughout the measure. C.S.S.B. 149 adds language to Subsection (b), Section 51.942 which would allow institutions to provide for greater compatibility between the "performance evaluation" and the nature of the institution by allowing them to design their rules to fit the institution's mission, traditions, resources, etc. Also adds language stating that the advice and comment of the faculty on the performance evaluation of tenured faculty shall be given the utmost consideration by the governing board in order to give recognition to the faculty's traditional role in peer evaluation. C.S.S.B. 149 deletes language from Subsection (c)(2) stating that the governing boards can determine other factors and adds language which affords additional protection for tenured faculty members by requiring the rules to be published and requiring certain academic procedures including timely notice, documentation and review by faculty peers. The new language strengthens the due process provisions of the bill. C.S.S.B. 149 deletes language referring to unsatisfactory performance as a criterion for termination or disciplinary action from Subsection (c)(3), and deletes all of Subsection (4) (original bill). Makes conforming changes to the subdivision sequencing. C.S.S.B. 149 creates a new Subsection (5) establishing "professional incompetency" or other good cause as the criterion for revocation. C.S.S.B. 149 inserts a new Subsection (d) which provides for the utilization of alternative dispute resolution methods pursuant to the Civil Practices and Remedies Code and strengthens the due process afforded to a faculty member undergoing termination pursuant to this measure by establishing certain requirements for the procedure or dispute resolution method to be used. Makes conforming sequence changes to the subsections.