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Board of Trustees Issues Decision

Dear Faculty and Staff,


This morning the Board of Trustees issued its decision on the Faculty Senate Resolution of November 20, 2013. That Resolution had asked the Board of Trustees to overturn a decision of University President Michael Engh, S.J. concerning the University's health care plans. The Board of Trustees in its decision denied the appeal of the Faculty Senate. The full text of the Decision is set forth below.


Sincerely,


Robert Finocchio, Jr.
Chair, Board of Trustees




Decision of the Board of Trustees on
Faculty Senate “Resolution in Opposition to Health Care Decision of
President Michael Engh, S.J., President of Santa Clara University”


At a special meeting on November 20, 2013, the Faculty Senate Council (“Faculty Senate”) at Santa Clara University passed a “Resolution in Opposition to Health Care Decision of President Michael Engh, S.J., President of Santa Clara University” (“Resolution”) and submitted the Resolution to 627 eligible faculty members for a vote. The Resolution, among other things, asks the Santa Clara University Board of Trustees (“Trustees”) to overturn the October 3, 2013, decision (“Decision”) of President Michael Engh, S.J., (“President”) wherein he announced that Santa Clara University (“University”) would not include (or pay a portion of the premiums for) “elective abortions” (that is, abortions that are not medically necessary) in its health care plans effective January 1, 2014.


Prior to announcing the Decision, the President met with approximately thirty members of the University community, including faculty and staff, to discuss the matter. The President did not submit the matter to the University Coordinating Committee or to the Benefits Committee prior to announcing his Decision. It was the President’s position that the Decision was not one subject to consideration by the University Policy Committees. Subsequent to the announcement of the Decision, faculty and staff participated in fora and a “town meeting” wherein the Decision, the shared governance process, and related matters were discussed.


On November 19, 2013, the President and Robert Warren, Vice President for Administration and Finance, met with the Benefits Committee to discuss the Decision. The Benefits Committee made a recommendation to Vice President Warren which was accepted by the President. As a result of the recommendation, the President modified the Decision by delaying its implementation until January 1, 2015 (“Modified Decision”). The delay affords the Benefits Committee sufficient time to explore options beyond the University’s health care plans and to review the plans in light of developing modifications to the Affordable Care Act and the related state exchanges. The accepted recommendation also provided that the Benefits Committee would consult broadly with the University community before making any recommendations to Vice President Warren for alternative health care options beyond the University’s health care plans.


Two weeks before the faculty voted on the Resolution, a survey of the faculty and staff was conducted on shared governance by a University WASC working group. Of the approximately 850 faculty members eligible to participate, 258 completed the survey. Those 258 faculty members rated shared governance at the University at a mean of 4 out of a possible score of 10.


On December 12, 2013, the Resolution was approved by a vote of the Faculty Senate in which 304 of the 627 eligible faculty members participated. The Trustees were informed of the Resolution and the request to overturn the Decision (“Appeal”). On January 8, 2014, the Trustee Executive Committee met and established the process by which to hear the Appeal. Juliana Chang, President of the Faculty Senate, was notified of the process on January 8, 2014. As part of the process, the Executive Committee asked the Faculty Senate for a submittal of written materials in support of the Resolution and the Appeal (“Submittal”). On January 13, 2014, the Executive Committee also asked the Faculty Senate to respond to written questions pertaining to the Resolution. The Faculty Senate’s response to the questions was contained in the narrative portion of the Submittal.


On January 22, 2014, Juliana Chang notified Chair Bob Finocchio that the Faculty Senate voted at their January 15, 2014 meeting that the Faculty representatives would not attend the Appeal hearing if the University permitted its general counsel to be present at the hearing because this is “not a court of law but a collegial meeting (to discuss shared governance).” On January 27, 2014, the Faculty Senate delivered its Submittal which was sent the next day to the Trustee members of the Executive Committee. On February 3, 2014, Chair Bob Finocchio informed Juliana Chang that while the Faculty Senate’s demand to exclude the University’s general counsel was disappointing, the demand would be granted in this instance only because a greater good would be served by having the faculty representatives present. Additionally, Bob Finocchio reiterated that this was an appeal seeking to reverse the Decision of the President, and that the hearing would be approached with collegiality and good will.


In its Submittal, the Faculty Senate asserts that the “first matter at hand” is whether the Decision “best serves the university”, including how the Decision “might be related to the university’s identity and mission.” The Submittal, however, asserts that “determining the best policy on abortion coverage is not the content of the Faculty Senate Resolution before us.” (Emphasis in the Submittal.) Additionally, the Faculty Senate did not take a position relative to a question posed by the Executive Committee before the Appeal hearing as to whether the President’s Decision refusing to include in the health care plans, and to pay a portion of the premiums for, “elective abortions” is a decision that does not conform with the University’s mission as a Jesuit, Catholic university. The Faculty Senate, notwithstanding the campus community discussions after the Decision, challenged the Decision and the Modified Decision not on substantive grounds, but solely on process grounds. At the Appeal hearing, a faculty representative acknowledged that prior to the Decision, there existed an institutional culture of trust. The Faculty Senate claimed that the Decision negatively impacted the culture of trust and was not in conformance with the University’s shared governance structure. Additionally at the Appeal hearing, a faculty representative acknowledged that “the shared governance system does not force the President to change his decision.”


The President’s position is that the Decision relates to the University’s mission and identity as a Jesuit, Catholic university. In 2003, the Society of Jesus in the United States (“Jesuits”) issued a statement on abortion entitled “Standing for the Unborn”. In the statement, the Jesuits affirm that the imperative to oppose abortion “calls forth from us a consistent ethos of life.” Similarly, Pope Francis in a message to the Americas on December 12, 2013, said that America is called to be “a land prepared to accept life at every stage, from the mother's womb to old age.” The Decision is consistent with, and conforms to, the mission and identity of the University as a Jesuit, Catholic university.


As indicated in the University bylaws, the Trustees as a whole and individually have a duty and responsibility to enhance and advance the identity and mission of the University as a Jesuit, Catholic university. The President as a Trustee shares this duty and responsibility collectively with the other Trustees, and individually as a Trustee and as President of the University.


On February 5, 2014, the Appeal Hearing was held. The Executive Committee, considered the oral and written presentations of the Faculty Senate representatives Juliana Chang, James Lai, Barbara Molony, and Dan Ostrov, the Submittal, and other relevant documents. The Executive Committee completed its deliberation on February 11, 2014 and recommended that the Board of Trustees adopt the following decision.


The President's decision announced on October 3, 2013 (“Decision”) is consistent with, and conforms to, the mission and identity of the University as a Jesuit, Catholic university. The Faculty Senate did not challenge the decision on substantive grounds. The Faculty Senate challenge was based on process grounds only, specifically a claimed failure to conform to principles of shared governance. The Faculty Senate asked the Trustees to overturn the Decision and to direct the President to follow the long established procedures of shared governance.


The Trustees are responsible and accountable for their actions relative to the University. The University is governed by its Bylaws and the University shared governance model is subject to those Bylaws. The Trustees may designate certain management activities of the University to the President and have done so.


Pursuant to the Bylaws, Michael Engh, S.J., as President and as a Trustee, has a duty to enhance and advance the identity and mission of the University as a Jesuit, Catholic university. In making the Decision, the President carried out this duty. The Decision was not a decision of condemnation or of exclusion, but rather one that flows from the University's identity and mission as a Jesuit, Catholic university. Moreover, this Decision does not, nor was it intended to, affect principles of academic freedom. It does not pass judgment on those who disagree with the Decision. Given his duties as President and Trustee, and the nature of the issue in question, the President concluded that the Decision was one not subject to shared governance.


The University shared governance model is a recommendation model, not a consensus model. The Trustees affirm the provisions of the University Policy Committees Charter which, while providing that the University Policy Committees are the final collaborative bodies with authority to formulate and recommend new University policy and major strategic change and to review significant change in existing policy, acknowledge that the Trustees hold the ultimate legal and moral responsibility and authority for the University and therefore, must ultimately determine and approve University policies and major strategic changes. The Trustees support the Benefits Committee recommendation, accepted by the President, delaying the implementation of the Decision until January 1, 2015 and affording that committee an opportunity to explore health care options beyond the University's health care plans and to review those plans in light of developing modifications to the Affordable Care Act, the related state exchanges, and the developing guidelines of the Department of Managed Health Care.


The Trustees are confident that the President will continue to follow the provisions of the University's shared governance structure. The Trustees support the renewed efforts to continue building trust in administration, faculty, and staff relations, which will strengthen campus governance and communication. The Trustees understand that over 150 matters have been considered by various University Policy Committees throughout the past four years. In its Submittal, the Faculty Senate acknowledges that the President has reaffirmed his commitment to shared governance. Moreover, at the Appeal hearing, a Faculty Senate representative stated that while the shared governance model is not broken and is working, in the Faculty Senate’s view, it should have been followed in this instance and needs improvement.


In light of what appears to be varying expectations and understandings concerning the shared governance model, the Trustees recommend that faculty, staff, and administration collaborate to clarify the structure and process of the model, realizing who has the ultimate responsibly and accountability for University policies and major strategic changes.


For all of the reasons set forth above, the Trustees decline the Faculty Senate's request to instruct the President to follow and be bound by the “long established procedures of shared governance” since the shared governance model has been active and the President has expressed his commitment to its continuance. The appeal requesting the Trustees to declare the President's Decision and the Modified Decision invalid is denied. The Trustees reiterate the continued support of the shared governance model and appreciate the thoughtful participation of the Faculty Senate in this Appeal process. The Trustees thank the Benefits Committee for undertaking the task of reviewing the University’s health care plans in light of developing modifications to the Affordable Care Act, the related state exchanges, and the developing guidelines of the Department of Managed Health Care.


Robert Finocchio, Jr., Chair

February 14, 2014

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