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Manoa Faculty Senate Minutes of November 16, 2005

November 16, 2005, Law Classroom #2

Senators present:
Allsopp, Baker, Bangert, Baroni, Bingham, Bley-Vroman, Bridges, Brown, Chang, Coimbra, Comcowich, Cox, Decarlo, DeMattos, Donegan, Duffy, Ericson, Efird, Fassiotto, Fritzinger, Fujimoto, Grandy, Haig, Halagao, Hawkins, Herring, Hijirida, Hudson, Inazu, Kamakawiwoole, Kazman, Kent, Kipnis, Lampe, Liebert, Lorenzo, Madey, Manshardt, Mark, Minatodani, Nitz, Ramos, Rieder, Rutter, Sansone, Satsuma, Scanlon, Shiramizu, Sipes, Speitel, Staff, Stark, Stimson, Stodden, Tiles, Valliant, Ward, Weems, Weiczorek, Weinstein, Yates

Senators absent:
Buenconsejo-Lum, Greene, Kennedy, Lee (M.T.), Lopes, Port, Sanders, Skouge, Yu

Senators excused:
Diamond, Fryer, Garcia, Lee (L), Magaard, Paull, Raleigh, Russo

Ex Officio:
Invited Chancellor: Chancellor Konan,

Other Administrators:
Gary Ostrander, Kathy Cutshaw, Kelly Aune, Wayne Iwaoka, Jim Gaines, Wendy Pearson

Chair Robert Bley-Vroman called the meeting called to order at 3:06 p.m. The Minutes of the October 19, 2005 meeting were approved as submitted. The Chair stated that any minor corrections found later should be emailed to the Secretary (mstaff@hawaii.edu).

1. Chairs Report:

RBV noted that the main agenda item for today's meeting is UARC. He asked to comment on the search for permanent Chancellor, stating that the process must be acceptable to Manoa faculty, and not tied to search for a President of the system. Regarding the composition of the search committee: the Chair of SEC has agreed to serve as Chair, and there is currently a proposal for the search committee to have 16 others recommended and/or appointed by the Chancellor. The SEC wants the faculty to reconsider and better define the role of the chief officer for Manoa, versus the role of President of the system; this will be discussed more at the December meeting.

2. On behalf of the Committee on Faculty Service, Committee Chair Linda Cox nominated Dian Dooley to the Ethics Board. The nomination was approved unanimously.

3. UARC Ad-hoc Committee Commentary

The Chair asked UARC Ad-hoc committee chair, Sara Rutter (LIB SVS), to comment on UARC reports and to set the context for today's discussion and resolutions to be introduced. Rutter stated the committee had been working since June, and was looking forward to being released. She once again introduced the members of the committee, noted that all the members are listed on the website and that SEC liaisons were Jim Tiles and Tom Ramsey.

The objective of the UARC committee was to gather information and facts in order that faculty could conduct informed discussions. Conway-Jones (Non-Senator, Law), a member of the UARC committee, had recommended that outside counsel be retained for due diligence and to review the contract. Attorneys Terry Thomason and Jessica Horiuchi were selected and their consultancy was paid by the VCRGE's office using RTRF funds. Thomason in particular had extensive experience in the Army judge advocate general's corp as well as other related experience in procurement and labor issues.

The scope of the consultancy was limited to 3 areas: the procurement process, disclosure of information and publication rights, and authority to reject task orders.

  1. a. Procurement: counsel found no legal impediment to UH's entry into a non-competitive award from navy.
  2. b. Disclosure: The study focused on Section H.5 of the contract. Counsel found that the UARC contract should be re-written so that UARC's disclosure time frame would match FOIA's.
  3. c. Task order rejection: Counsel had concern about internal inconsistency between the contract and attachments, and suggested selected amendments and modifications that need to be done.

The final UARC committee report has four sections: philosophy/mission, process, financial costs/benefits, and management/governance

Philosophy:

Key points are that many faculty believe the UARC is inconsistent with the notion of a Hawaiian place of learning; furthermore, UARC is opposed by the Kualii council. The report notes a lack of consultation.

Classified, or secretive research, has been opposed in three MFS resolutions: in 1986, 2002, and 2005. Since it is estimated that 15% of UARC task orders will be classified it is likely that classified research with UARC will increase at UHM and there will overall be greater military involvement. Many faculty have questioned the appropriateness of this.

Also there is apparent distress from some faculty over the prospect of increased institutional partnerships instead of competitive grants. Some faculty also noted concern over the possible increase in security issues on campus.

Academic freedom could be infringed upon, since the contract does not clearly give faculty the right to reject task orders, and there are also remaining questions regarding licensing rights.

Process:

The UARC committee found there was insufficient input from both UHM and community neighbors.

The process also included a virtual rather than centralized facility or structure, which continues to raise concerns with respect to the suggestion that space and equipment will be shared with non-UARC university business.

Financial issues:

The UARC would provide for a prorated direct cost rate and fee funds for administration and labs

Indirect cost rate for UARC is 9.06% vs. 36.3% for existing contracts -this would yield less to RTRF, but there would be more funding to areas of UARC core research. It is believed that the UARC financial structure may help raise the base, thus raising indirect cost rates. The UARC aims to be self-supporting within 3 yrs; the contract itself is 3 years with an additional 2 year extension after review. Some question whether the funds will really be new, instead of re-routed money.

Accountability: the VCRGE agreed to report annually to Senate and compare financial results with projections.

Management/Governance:

Rutter noted again that the virtual UARC would be unique. UARC faculty would have a home department. Counsel found there are unresolved drug-testing questions - but that UHPA had opined that there is precedent that drug testing is a personal decision (i.e., nurses in Barganing Unit 7).

Decision-making accountability is addressed to some degree in the management plan and the plans for a faculty task order review board.

Summary of counsel concerns:

  1. publication rights
  2. task order refusal
  3. virtual offices, issues of dual-use property
  4. intellectual property rights
  5. drug testing and other personnel issues
  6. impact of security classification on research staff
  7. conflicts of interest and potential restrictions on faculty in non-UARC research
Summary of other concerns:

1. Philosophical issues

2. Business model (In contract review/revision legal expertise will be needed. Will administration hire outside counsel?)

3.Process issues (involvement of stakeholders; timeline)

Rutter concluded her comments by suggesting that since this topic is of great concern, and in keeping with the UARC committee's recommendation for formal balloting be done on today's resolutions.

4. Chair's comments on the voting procedures:

Chair Bley-Vroman stated that no proxy voting is allowed. The discussion to follow will recognize all senators who wish to speak before it recognizes or invites others to speak. He acknowledged that there are many possible positions about UARC. The SEC considered the possible positions and decided to present only two resolutions today: one "opposed", and one "not opposed if?"

Non-action here today would not be a position of the MFS. And, he noted it is not true that the administration has decided it will definitely go ahead with UARC. The Chancellor has stated she's keeping an open mind.

Today, if neither resolution should pass, the chair will call a short recess to think about what it means. If the first resolution passes, the second resolution will not be voted on because it won't make sense to pass it. In the discussion it may be helpful to compare the resolutions. One can also amend the resolutions but can't amend the second one unless the first one is voted on and rejected. Debate will stop when people stop saying things, or when 2/3 of senators vote to stop it.

On behalf of the CFS Chair, Cox moved to carry out a secret ballot.

Discussion:

Comcowich (ED) proposed an amendment: that it be a recorded vote.

Chair Bley-Vroman ruled such an amendment was not in order since the amendment would effectively reverse the original motion.

Madey (NS) suggested that faculty think about the benefits of invisibility that secret vote would convey, but also on the loss of opportunities for further dialogue.

Bangert (CBA) felt that secret balloting would extend the meeting and he could not understand the benefit.

Satsuma (SHAPS) stated she was confused by the suggestion a secret ballot was desirable. As representatives of faculty we should be called to task for our votes and they should be public.

Yates (JABSOM): asked for a quiet public ballot.

Vicky Holt-Takamine (non-Senator) asked to speak for Jon Osario (HAW ST) and read from his written statement a section noting that UARC is so heavily politicized a secret ballot is self-serving for one side. There is a history of it being uncomfortable to criticize political issues. Academic freedom is not limited by those opposed but is limited by the process of secrecy.

The Chair called the question of secret ballot. By a showing of hands, the motion failed.

In favor: 12
Opposed: 38

4. UARC Resolutions

The Chair read both resolutions aloud and opened discussion.

Lampe (NS) asked about the wording of one "whereas clause" in the "opposed" resolution 1, but determined it was ok.

Madey (NS) asked to use the overhead and stated his purpose was to speak in favor of the first resolution opposing UARC. He believes that the proposed ARL/UARC would make his current DoD- funded applied research impossible to continue. He presented several slides to point out the possible issues his research program could face, including loss of an environment that encourages transformative thinking, consequences of the obligations of a long-term strategic relationship with DoD, and issues relating to possibly being barred from future research opportunities because of the UARC partnership. He stated that UARCs are barred from competing for 86% of funds available to non-UARC R & D enterprises and that UARCs require strict controls on circulation of information, above and beyond classified projects. Also he noted that UARC faculty, staff, and students are restricted from employment in DoD supplier companies for 3 years. He recounted a meeting he attended in which he was told he would have to accept task orders since he had no standing alone; UARC is "the university". The UARC, he believes will allow only exploratory pursuit and faculty will not be able to bring their ideas to application. He stated his fear is confirmed by others who have looked at the contract. Madey asked faculty to oppose UARC.

Wieczorek (CTAHR) asked if there are really penalties to faculty for rejecting task orders.

Rutter (LIB) responded that legal counsel did raise this issue and put it on their list of concerns.

Conway-Jones noted that legal counsel wanted to rewrite this part of the contract but a rewrite was beyond the scope of their review.

Cutshaw commented that the responsibility is with UH, not individual faculty members.

Rutter responded that the contract as it is written is unclear. The conflict of interest clause is unclear.

Erikson (ED) asked why only these two resolutions are presented. Why not "opposition unless" and "no opposition at all"?

Bley-Vroman stated the SEC believes that "opposition unless" is the same as "not opposed if".

Tiles (A & H) noted that if neither resolution passes, then others can be offered.

Eric De Carlos: asked to read Barry Raleigh's (SOEST) recent letter to a local newspaper, which stated that the UH discussion environment has been confrontational from the beginning. Competition in his field is very intense; success rate for grants is about 10%. Although administration was initially clumsy, recently administrators have responded well. He feels this is the worst of times to cave into the politics of intimidation. Kipnis (A & H) mentioned the civility and respect of the present discussion. He sees no intimidation.

Bangert (CBA) noted that straw polls from his faculty group show that they favor Resolution 2, and he personally feels that UARC is an opportunity that should be pursued. He notes that some faculty are opposed to UARC because of process or because of an overall sense of what is good for the university.

Ramos suggested deleting "whereas" #1 and #8; it was moved and seconded.

Discussion: Kipnis noted he teaches ethics (philosophy) and thinks the ethical dimension is a very important part of our self-conception.

Question to delete was called.

8 in favor of deleting Whereas #1 and #8. (opposition votes were not counted as it was clear that the amendment failed).

Kent (Soc Sci) commented that faculty favoring Resolution #2 should think twice, because the "if" statements are unenforceable. Further, the moment faculty favor UARC is the moment faculty lose control. He stated that faculty review committees do not have the time and expertise to do an appropriate review and that there is no mechanism to insure timely publication of research will result or be guaranteed.

Duffy (NS) stated he had deep concern about approving Resolution 1; he believes that it will send a message we don't want to send.

Efrid (JABSOM) noted that the face of the university, and the nation has changed dramatically since 9/11. We need a strong defense and must recognize that there are many people who hate and want to harm Americans. Because of this, we must compromise, be realistic, and we may be shooting ourselves in the foot if we oppose UARC.

Satsuma (SHAPS): Many have worked hours to bring UARC resolutions to us. She sees the costs of UARC are so high and the benefits dubious. If we are going to be honest, fair, and create a Hawaiian place of learning, and academic freedom for people like Madey, we are risking too much with UARC. She urged faculty to support resolution 1.

Sansone (Oceanography) thanked MFS for the discussion over the last months and stated his opinions have swayed. He notes that the main factual matters are being addressed, but main issues are still whether military funding is good for the university. In his personal experience, military funding was positive and military sponsors were even benevolent. The big difference now is the change in administration. Konan and Cutshaw have his total respect and he believes they will follow the intent if we vote for Resolution 2.

Yates (JABSOM) strongly urges rejecting Resolution 1 because of possible ancillary damage. If #1 were passed and similar opposition extended to other funding outside the usual, there could be a chilling effect. He noted that some researchers may want to choose to give up publication rights for experience with military sponsor and for opportunity to do certain research.

R. Case, (non-Senator, CBA), noted he has had experience with similar publication restriction contracts, and feels there is fear-mongering on this issue. He remains concerned about efforts to limit his academic freedom and feels resolution 1 would do this.

Ward (JABSOM) commented that academic freedom cuts both ways. Supporting resolution 1 will restrict some faculty.

M. Townsend (Law student) stated that administration has attempted to respond/clarify concerns with statements such as "our position is?" She noted that one can't make an informed position on what certain text means without hearing from the person who wrote the text. By opposing the UARC you are not restricting people from getting grants. Grants should be competitive, you get them because you are the best. Administration may choose to go forward because they think benefits will outweigh the costs but faculty should ask for an unequivocal vote of opposition to UARC. She stated she represented community members with local ties.

De Carlos (SOEST): Restrictions on publications are more common than one would think. One of the explicit clauses of contracts he has had is to restrict publication. In the long run, he got his research published. Delays of this type are NOT necessarily strictly a military type of restriction, he has heard of other sponsors that restrict for a period of time. He has not done military research himself but favors supporting UARC.

The Chair noted the time (5:00 p.m.) and asked for a show of hands of people who had to leave by 5:15 or 5:30. He asked if the discussion should end before the quorum was lost.

Madey noted he has contributed to national defense, and it is because of his familiarity with this type of contracting structure that he is alarmed and urges everyone to not ignore misguided arguments in favor of the UARC.

Bley-Vroman asked for a show of hands to vote on Resolution #1; there was unanimous consent.

In favor of Resolution Opposing UARC: 31
Opposed: 18
The Resolution passed.

Tiles moved to initiate a referendum to Congress, which would require a 2/3 vote now.

Bley-Vroman commented that Congress would have the choice of overturning MFS decision or not. Vote would be by secret written ballot. Or, within 10 days, a petition with 100 names on it could also require a vote by Congress. A simple majority could overturn the decision.

Weinstein (Sociology) asked that the result of the vote just taken must be sent on to administration.

Reider (LLL) stated faculty should not delay further by asking for yet another vote. Many were ready to vote a long time ago.

Sharma (non-senator, Asian Studies) asked if such a move would be a vote against our senators, who have already consulted their constituencies on how they should vote today.

Keever (non-senator, Journalism) noted that faculty voted today for an open procedure and should not now approve a second secret vote.

Grandy (SS) said he voted in favor of the resolution, but wants to send the matter to Congress, because UARC is such an important matter. Today's vote and any subsequent Congress vote should be sent to administration.

Townsend (Student) suggested that faculty who want to petition have a process to do so and referral today is unnecessary.

A Motion to refer the matter to Congress failed.
In favor: 18
Opposed: 21

The Chair called for any new business. Hearing none, the meeting adjourned at 5:17.

Respectfully Submitted
Martha Staff
Secretary to Manoa Faculty Senate


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