Representation of University of California faculty in matters arising out of their employment with the University
My Experience Representing UC Faculty
By way of introduction, I am now emeritus after 30 years as a professor in the geology departments at UCLA and UCSB. I have been practicing law, specializing in issues related to education, since 2007.
During my time as a professor, I came to understand that UC is a great place to work until something goes bad and you find yourself on the wrong end of a barrel being pointed at you by the Administration.
Right around the time an irreparable rift developed between the UCSB administration and me, and I decided to go to law school, I read two quotes that really resonated with me. One was from Randall Sullivan's book LAbrinth, where the protagonist, a retired LAPD detective, recounts what happened when he tried to get the top brass interested in investigating evidence he had uncovered that the LAPD helped cover up Suge Knight's association with the murders of Tupac Shakur and the Notorious B.I.G.. "Honor and integrity of the case were always what mattered to me, but once I went downtown I learned that the people who actually ran the department didn't give two shits about any of that. To them it was all about politics." The second was from an article in The New Yorker by Richard H. Levenson in which he observed, "The Church - like most organizations - is too likely to see its first duty as protecting its institutional interests and its officials, and can't be trusted to police itself." Substitute the administration building for downtown and the University for the department or the Church and that's an apt description of the University of California.
If you find yourself facing a hearing in front of the Committee on Privilege and Tenure, or without any allies in a situation where your tenure and privilege, or rights under the Faculty Code of Conduct, have been violated, one important fact to realize from the beginning is that the opposing party, whether an administrator, the Academic Personnel office, or an Academic Senate Committee (e.g. Committee on Privilege and Tenure, Committee on Academic Personnel) has access to and is likely utilizing attorneys in the University of California Office of the President, Office of the General Counsel.
You should not face an adversary who has a lawyer without an attorney of your own.
Most prospective clients who are UC professors have asked me if getting an attorney to represent them will brand them as trouble makers. My answer is that the Regents envisioned the likelihood of faculty being represented during disciplinary and other procedures at the UC when they specified that faculty can be represented by counsel in, for example, Grievance Cases brought by Professors the Committee on Privilege and Tenure under Academic Senate Bylaw 335, Disciplinary Cases brought by the administration against Professors before the Committee on Privilege and Tenure under Academic Senate Bylaw 336 and Early Termination cases brought by the administration against Professors before the Committee on Privilege and Tenure under Academic Senate Bylaw 337 or grievances brought by Adjunct Professors through the Academic Personnel Office under Academic Personnel Manual APM-140 and disciplinary actions brought against Adjunct Professors through the Academic Personnel Office under APM-150.
I have represented faculty at all ten campuses in the UC system, including University of California Berkeley (UCB), University of California Davis (UCD), University of California Irvine (UCI), University of California Los Angeles (UCLA), University of California Merced (UCM), University of California Riverside (UCR), University of California San Diego (UCSD), University of California San Francisco (UCSF), University of California Santa Barbara (UCSB), and University of California Santa Cruz (UCSC).
I don’t think it inaccurate to state that based on my thirty years as a professor at the University of California followed by what is now approaching seventeen years of practicing law with an emphasis on university-level education law, I am the most competent attorney practicing in California when UC professors need representation on issues relating to their employment at the University.
Shared Governance is a Myth When It Comes to Implementing Faculty Discipline
The US Senate has to advise and consent before Presidential nominations for federal judges become effective.
The faculty at UC get to advise, but the Administration gets to decide how to proceed with faculty discipline without the consent of the faculty.
So much for shared governance.
Two examples.
Most UC campuses have a Charges Officer or a Charges Committee that reviews investigative reports of faculty misconduct, then reports to the Provost or Executive Vice Chancellor whether there is probable cause the accused faculty member violated the Faculty Code of Conduct.
But at UCLA, under Appendix XII of the UCLA Academic Senate Bylaws, at Section VII. B. here, “With probable cause, whether determined by the Charges Committee or the Vice Chancellor, the Vice Chancellor shall notify the complainant and the faculty member charged of the intent to file a formal complaint with the Committee on Privilege and Tenure.”
UCR, UCSB and UCSC have similar policies whereby the analogue of the UCLA Vice Chancellor can override the Charges Committee determination and makes a final determination of probable cause, see here, here and here.
Second example.
Once the Vice Chancellor notifies the faculty member charged of the intent to file a formal complaint with the Committee on Privilege and Tenure, SBL 336 here kicks in. After a hearing in front of a Hearing Committee consisting of three or more of your faculty peers, appointed by the Chair of the Committee on Privilege and Tenure, the Hearing Committee sends a report to the Chancellor, reporting its finding and recommending sanctions to be imposed, or not, on the accused faculty member. But the Chancellor can then ignore the recommendations of the Hearing Committee per APM-016 at Section II: “In any disciplinary proceeding, the Chancellor may not impose a type of discipline more severe than that which was set forth in a written notice of proposed disciplinary action to the faculty member,” even when the Hearing Committee's recommendation was that no sanctions be imposed. Alternatively, the Chancellor can effectively use a pocket veto by doing nothing, since neither APM-016 or SBL 336 impose a time-frame for the Chancellor to act on the Hearing Committee's recommendations.
The Disastrous Consequence for UC Faculty of How the Administration Ended the 2022 Graduate Student Strike
A December 23, 2022 LA Times article here, reported, “University of California graduate student workers on Friday ratified a new labor agreement with big wage gains, support for child care and new protections against bullying and harassment, ending a historic strike that upended fall term finals and has reverberated nationally.”
Even without the new protections against bullying and harassment, much of my business comes from UC faculty seeking legal help defending charges brought by their graduate students and postdocs alleging violations of the New Presidential Policy on Abusive Conduct in the Workplace announced with great fanfare UC Policy on Abusive Conduct in the Workplace.
The Regents should call that provision of the agreement they made with the graduate students “The Full Employment for Michael J. DeNiro Act of 2022.”
And to show the madness isn't limted to UC, a November 28, 2023 LA Times article here, reported, “USC and graduate students union reach tentative pact with big pay boosts, bias protections.”
The proposed amendment of APM-016, adding to Section II a provision "Pause on Academic Review Actions," the so-called “no-fault pause”
The UC administration is proposing an amendment of APM-016 Section II here, whereby
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Pause on Academic Personnel Review Actions: At the beginning of a formal investigation of alleged misconduct by a faculty member, if the Chancellor (or Chancellor’s designee) finds that any of the alleged misconduct is relevant to the assessment criteria for academic personnel review actions, the Chancellor (or Chancellor’s designee) may impose a no-fault pause on any current or future academic personnel action (e.g., for merit, promotion, or advancement) of that faculty member. Locations are responsible for developing implementation procedures that address at what stage in existing local procedures the pause occurs and that identify the offices that have responsibility for providing written confirmation of the pause to the respondent, giving a respondent periodic updates on the status of the investigation, and for notifying relevant administrators of the beginning and end of the pause.
- Conclusion of the pause: The pause will end when the investigative and disciplinary processes are concluded. In the event of a disciplinary process following a formal investigation, the pause will end when a final decision is made whether to impose disciplinary sanctions. The academic personnel process may then proceed according to campus procedures.
- Assistant Professors in Year 8: If the investigative and disciplinary processes are not concluded by the beginning of the faculty member’s eighth year of service at the rank of Assistant Professor (or a combination of equivalent titles), the Chancellor is authorized to recommend to the President that the appointment be extended beyond the eighth year, in accordance with Regents Bylaw 40.3(c).
I have helped UC faculty in situations where rogue EVCs have tried to implement the proposed Pause on Academic Personnel Review Actions without the benefit of that provision actually being part of APM-016 Section II.
If the proposed amendment of APM-016 Section II goes through, I will have so many UC faculty arranging for me to represent them while their merit/promotion cases go into suspended animation that The Regents should call that amendment “The Full Employment for Michael J. DeNiro Act of 2024.”
Results Obtained for UC Faculty Clients
I have represented UC faculty at all ten campuses in the system, including University of California Berkeley (UCB), University of California Davis (UCD), University of California Irvine (UCI), University of California Los Angeles (UCLA), University of California Merced (UCM), University of California Riverside (UCR), University of California San Diego (UCSD), University of California San Francisco (UCSF), University of California Santa Barbara (UCSB), and University of California Santa Cruz (UCSC). I have represented UC faculty on a number of issues, successfully, including:
- Professors placed on involuntary leave with pay pending resolution of disciplinary charges pursuant to APM-016 Section II. If you receive a notice from the Executive Vice Chancellor or the Provost with a subject header “NOTICE OF INVOLUNTARY LEAVE,” please contact me to discuss your options, which include grieving the terms of the leave with the Committee on Privilege and Tenure (P&T), which must hear your grievance on an expedited basis. I was able to get the onerous terms of a UC Faculty-client's leave modified after P&T heard the grievance, which enabled him to conduct his research until his disciplinary case was heard, which, incidentally, I won on his behalf when the Hearing Committee found he did not violate the Faculty Code of Conduct.
- Professors facing disciplinary charges [Referral of Complaint to Committee on Privilege and Tenure], pursuant to Bylaw 336 of the University of California Academic Senate, or early termination, pursuant to Bylaw 337 of the University of California Academic Senate. If you receive a notice from the Executive Vice Chancellor or the Provost with a subject header “Formal Complaint Alleging Violations of the Faculty Conduct of Conduct” or referencing the “Procedures for the Implementation of University Policy on Faculty Conduct and the Administration of Discipline,” please contact me to discuss your response, which is generally due within 21 days of receipt of the notice. A strong response can convince the Executive Vice Chancellor or the Provost to dismiss the charges, rather than forward them to the Committee on Privilege and Tenure for a hearing, after which you may be sanctioned if P&T so recommends. I have been able to get disciplinary charges against several of my UC faculty clients dropped before the process reached a hearing in front of the Committee on Privilege and Tenure, allowing them to return to their positions with no public record of the terms of the settlements, or of the allegations of misconduct against them.
- Professors found to have violated the Faculty Code of Conduct by P&T In April 2018, I persuaded a judge in the Superior Court for the County of Santa Cruz that there was no substantial evidence to support a UCSC hearing panel’s decision that my client had violated the Faculty Code of Conduct. The judge ordered the University of California to set aside that decision, and to undo the sanctions that had been imposed on my client by the Chancellor as a result of that decision. Unfortunately, the Sixth Appellate District Court of Appeal reversed the Superior Court decision on February 16, 2021.
- Professors facing allegations of research misconduct in violation of the University Policy on Integrity in Research. I have been able to get allegations of research misconduct against one of my UC faculty clients settled in a manner that allowed him to move to a new position doing research outside the University, with no public record of the allegations of misconduct against him, or of the terms of the settlement.
- Professors facing allegations of sexual harassment and/or retaliation against the person who filed a sexual harassment complaint with the Office of Title IX and Sexual Harassment Policy Compliance (TIX/SHPC). You are entitled to have a lawyer present with you if you consent to be interviewed by an investigator from your campus’s Title IX and Sexual Harassment Policy Compliance Office. The record compiled by TIX/SHPC during its investigation can and will be used against you if the campus executive vice chancellor or provost recommends that P&T hold a disciplinary hearing for violation of the Faculty Code of Conduct (APM-015), so it is important to engage counsel to ensure that the TIX/SHPC record is accurate and that your defense is strong and accurately reported in the investigator's reports as to dissuade campus administrators from seeking to have you disciplined. I have been able to settle Title IX complaints against my UC faculty clients facing termination or lesser sanctions for alleged violations of Title IX in a manner that allowed them to return to their faculty positions with no public record of the terms of the settlement, or of the allegations of misconduct against them.
- Professors facing allegations of engaging in improper governmental activities and/or retaliation against the person who filed a whistle blower complaint with the Locally Designated Official at your campus. You are entitled to have a lawyer present with you if you consent to be interviewed by an investigator from your campus’s Office of Ethics, Risk, and Compliance Services. The record compiled by the Office of Ethics, Risk, and Compliance Services during its investigation can and will be used against you if the campus executive vice chancellor or provost recommends that P&T hold a disciplinary hearing if you are determined to have engaged in improper governmental activities, so it is important to engage counsel to ensure that the record compiled by the Office of Ethics, Risk, and Compliance Services during its investigation is accurate and that your defense is strong and accurately reported in the investigator's report so as to dissuade campus administrators from seeking to have you disciplined. I have successfully represented UC faculty clients during investigations of allegations of engaging in improper governmental activities with the investigations ending with findings of no misconduct by my clients.
- Professors facing allegations of discrimination on the basis of race, color, national origin, religion, sex, gender identity, pregnancy, physical or mental disability, medical condition (cancer related or genetic characteristics), ancestry, marital status, age, sexual orientation, citizenship, or service in the uniformed services and/or retaliation against the person who filed a discrimination complaint with the Office of Equal Opportunity and Discrimination Prevention (EO/DP), Discrimination Prevention Office or the Office for the Prevention of Harassment and Discrimination. You are entitled to have a lawyer present with you if you consent to be interviewed by an investigator from your campus’s Office of Equal Opportunity and Discrimination Prevention (EO/DP), Discrimination Prevention Office or Office for the Prevention of Harassment and Discrimination. The record compiled by during the investigation can and will be used against you if the campus executive vice chancellor or provost recommends that P&T hold a disciplinary hearing for violation of the Faculty Code of Conduct (APM-015), so it is important to engage counsel to ensure that the record is accurate and that your defense is strong and accurately reported in the investigator's report so as to dissuade campus administrators from seeking to have you disciplined. I have successfully represented a UC faculty client during investigations of allegations of discrimination brought by a graduate student, with the investigations ending with findings of no misconduct by my client.
- Professors with issues concerning APM-015 (The Faculty Code of Conduct), APM-016 (University Policy on Faculty Conduct and the Administration of Discipline), APM-025 (Conflict of Commitment and Outside Activities of Faculty Members), APM-028 (Disclosure of Financial Interest in Private Sponsors of Research), or APM-075 (Termination for Incompetent Performance). I have been able to get a threatened APM-075 (Termination for Incompetent Performance) action against one of my clients dismissed, and negotiated a golden parachute for him as part of the settlement of the matter.
- Professors found to have violated the Faculty Code of Conduct who were sanctioned by the campus Chancellor based on that finding. I persuaded a judge in the Superior Court for the County of Santa Cruz that there was no substantial evidence to support a UCSC hearing panel’s decision that my client had violated the Faculty Code of Conduct. The judge ordered the University of California to set aside that decision, and to undo the sanctions that had been imposed on my client by the Chancellor as a result of that decision. [The Sixth Appellate District Court of Appeal reversed the Superior Court decision on February 16, 2021.]
- Professors wanting to negotiate a separation agreement or settlement agreement. I have negotiated golden parachutes for two of my clients as part of the settlement of the outstanding matters between them and the University.
- Professors seeking advice on which retirement options to choose from the University of California Retirement System (UCRS). I have advised one of my clients to take certain actions years before she will have to choose among the retirement packages offered by the UCRS system, so as to maximize her retirement package.
- Professors wanting to bring a grievance to the Divisional Privilege and Tenure (P&T) Committee, pursuant to Bylaws of the Academic Senate University of California, Bylaw 335 Committee on Privilege and Tenure – Grievance Cases. I have represented a number of UC professors who brought grievances against UC administrators and faculty for violations of their rights and privileges. In those cases, I wrote the grievance, then interacted with the Committee on Privilege and Tenure until the Committee decided to hold a hearing on the grievance. In one of those cases, I represented the client at a hearing before a Hearing Committee, at which my client prevailed on all but one issue. The Chancellor eventually accepted the recommendations of the Hearing Committee, although had he not done so, I was prepared to seek a writ of administrative mandamus in Superior Court to compel the University to abide by the recommendations of the Hearing Committee.
- Professors seeking to have faculty members or administrators who also have faculty appointments disciplined for conduct violative of the Faculty Code of Conduct. I have prepared formal complaints for professors seeking disciplinary action under Academic Senate Bylaw 336 against members of the Academic Senate (all faculty with tenure or tenure-track appointments). The clarity and focused presentation in the formal complaints I prepared for UC faculty clients compared with those I have seen prepared by professors themselves may account for the likelihood that a formal complaint goes forward to a disciplinary hearing before a panel assembled by the Committee on Privilege and Tenure.
- Adjunct professors wanting to bring a grievance pursuant to APM-150 Campus Procedures for Non-Senate Academic Grievances. I have represented a number of UC adjunct professors who brought grievances against UC administrators and faculty for violations of their rights and privileges. In those cases, I wrote the grievance, and provided counsel to the clients while they dealt with the Grievance Liaison officer. In both cases the matters were resolved without having to go to hearing.
Contact Me
To schedule a free initial consultation, call me at (805) 845-8223, or email me at mjdeniro7cox.net (please replace the "7" with the "at symbol"), or Click to send me an e-mail.
During the initial consultation, I will gather the relevant facts from you to determine if I can offer legal services that might help you, and then, if you want me to, I will send you a fee agreement showing how much those services would cost you.
I will not offer affirmative advice - do this, don't do that - during the initial consultation. I only do that once you become my client. I don't review documents prior to the initial consultation, I only do that once you become my client. And finally, if your matter does not involve the application of California law or of Federal law to a matter that arose in California, I will inform you during the initial consultation that I cannot provide any advice because by doing so I would be engaging in the unauthorized practice of law, which is forbidden by the Rules of Professional Conduct of the California State Bar.
The use of the Internet for communications with me will not establish an attorney-client relationship. Please note that messages containing confidential or time-sensitive information should not be sent. Pursuant to Rules of Professional Conduct Rule 1-400, the matter herein must be labeled as a newsletter.
