Colleagues, here are even more reasons for concern about the Reporting Arrests policy. The letter below is from our colleague Daniel Hall, a former dean on the Hamilton campus and a professor of political science specializing in law. Read on and be at Faculty Assembly Tuesday at 4:15 in Shriver Auditorium!
Spyami?
On April 22, 2019 the Miami University Senate approved a proposed policy entitled Reporting Arrests. Subsequently, a faculty referendum process was used to stay the Senate’s approval, pending Faculty Assembly review. Miami University’s American Association of University Professors Advocacy Chapter has expressed several concerns about the Reporting Arrests Policy. If you have not received these messages, I urge you to go to the AAUP’s website. In addition to what the AAUP has penned, I present the following for your consideration.
The Reporting Arrests Policy is Over-broad
The Reporting Arrests Policy requires YOU to
[R]eport any formal police report, arrest, charge or indictment for alleged criminal conduct (as defined below) to the Office of General Counsel, within 3 working days of the police report, their arrest, charge or indictment. Employees are also required to report when they have knowledge of a formal police report, arrest, charge or indictment of a faculty or staff member for alleged criminal conduct.
This Policy is stunningly broad. First, it includes all felony drug, fraud, theft, and crimes of violence. No connection between the alleged crime and the University is required for the reporting requirement to activate. Consequently, you are commanded to report your colleague to the University, even if the criminal conduct occurs off-campus and doesn’t harm the University, its personnel, or its students. Although the Reporting Arrests Policy mentions consideration of whether the alleged conduct is work-related in the “evaluation process,” it doesn’t require that the offense be work-related to fall under the scope of the Policy.
Second, the Policy imposes the reporting requirement for convictions, arrests, and formal police reports. The phrase “police reports” is ambiguous. It is unclear whether this refers to reports made to police by the public or to reports prepared by law enforcement following an investigation. Either way, only a small percentage of police reports result in criminal charges; a smaller fraction result in convictions. Many reports are not pursued because they are not credible or because there is little evidence to support them. Requiring an employee to report in these circumstances is tantamount to compelling defamation.
Third, the discretion of those charged with implementing the Reporting Arrests Policy is almost unbounded. For example, any failure to report can lead to termination for the first offense. The absence of proportional and progressive discipline is unsettling.
Fourth, faculty and staff are not involved in fact finding or the disciplinary recommendation that is made to the president, or appropriate vice president. Instead, these authorities fall to University Counsel. The Policy also provides that “[a]ny suspension or ensuing disciplinary action must be taken in accordance with University policy.” If this means that faculty have the option of mediation or a hearing with the Faculty Rights and Responsibilities Committee, be aware that R&R does not have the authority to change outcomes for faculty. Its recommendations to administration, when they contradict its decisions, have tended to be ignored.
The Reporting Arrests Policy is Unnecessary
Miami already has other reporting policies and tools in place. Although the Policy Library is difficult to navigate, I was able to identify the following policies. This list may not be exhaustive.
- Workplace Violence: Violent behavior, intimidation, stalking, threats, domestic violence, and causing property damage at Miami are prohibited under this policy and reporters who act in good faith are protected from retaliation.
- Mandatory Bias Incident Reporting: MU is one of over 200 colleges and universities to employ a mandatory bias reporting system. You may recall undergoing the mandatory training. The Foundation for Individual Rights in Education (FIRE) has referred to these processes as a dangerous constitutional game that extends beyond bad conduct into free speech and often subjects faculty and students to intrusive and humiliating investigative and secretive processes (2017 Report on Bias Reporting Systems). Miami’s bias incident reporting system and its harassment policies have earned it a Yellow rating (of Green, Yellow, and Red) from FIRE.
- Self-Disclosure of Criminal Convictions: Under this rule an individual must self-report criminal convictions, with the exception of minor misdemeanor traffic offenses.
- Self-Disclosure of DL Suspension: Similar to the rule above, an employee has an obligation to notify the University of a suspension or revocation of their driver’s license if they drive a university vehicle.
- EthicsPoint: This online tool is a vehicle for anonymous reporting of ethics violations. While the anonymity feature of this tool is well-intentioned, it enables vindictive, slanderous accusations with impunity. Interestingly, the EthicsPoint website reads, in part, “Employees and students are expected to report good faith concerns about illegal, unethical, or otherwise inappropriate behavior in violation of Miami policies.” If “expected” is interpreted as required, this represents a further broadening of existing policies to include ethical violations and students.
- Reporting and Addressing Illegal Activity and Misconduct: In what appears to be an earlier version of the Reporting Arrests Policy, this rule “expects all faculty and staff to report any suspected criminal activity to law enforcement.” Varying from its earlier “expectation” language, the policy subsequently “encourages” faculty to report. The enforceability and scope of the policy is unclear. But this ambiguity hasn’t prevented its use. Professors Dan Gladish and John Cinnamon, and staff member Brian Grubb, were charged last year with violating this policy (as well as other policies) in connection with the situation I refer to as IbogaGate. If you are unfamiliar with this case, which is pending, and you want to know more, go to the AAUP website or write to me. Because the sequence of events, I am left wondering if IbogaGate brought the enforceability problem of the old policy into focus, resulting in the proposal for a new, harsher Reporting Arrests Policy. If this is true, then serious discipline, including termination of faculty, for failing to report is a genuine concern.
- External Service and Ethics Reporting: Annual mandatory external services and ethics compliance reporting collect a significant amount of data about its employees.
The Reporting Arrests Policy Threatens Academic Freedom, Undermines Relationships, and Creates an Oppressive Workplace
The confluence of the Reporting Arrests Policy, EthicsPoint, mandatory bias incident reporting, and the other policies discussed above create an environment of suspicion and distrust in a workplace that should be characterized by collegiality and humanity. Remember, all Miami employees must report all employees. Family members, friends, and long-term colleagues must inform on one another. Additionally, as voiced by the AAUP, engaging the University can have the effect of retraumatizing crime victims. I see this happening in two ways: (1) requiring victims to report the crime that was committed against them in order to avoid punishment for not reporting; and (2) involuntarily involving victims in a University process when a third party is forced to report the crime that was committed against the victim.
Because the University can identify a rationale for imposing an information and reporting requirement doesn’t make it the right thing to do. The benefit to the University must be weighed against the privacy and collegial, reputational, and academic interests of employees and students. I question whether the benefits to the University come close to the costs associated with the Reporting Arrests Policy, especially given the size of reporting scheme that is already in place.
A majority vote at Faculty Assembly is needed to return this policy to the Senate for further discussion, and 25% of all tenure-line and TCPL faculty are needed at the meeting for a quorum. If quorum is not reached, the Reporting Arrests Policy will stand. I believe this policy needs a more critical review and I encourage you, regardless of your position, to attend and to take part in this important discussion.
Where: Shriver Admissions Auditorium
When: Tuesday, September 10, 2019 at 4:15 p.m.
Daniel E. Hall
Professor
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