Chair Sohmer called the session to order at 6:35 p.m. in Room 9205/6/7 of the City University of New York Graduate School and University Center. Present were Senators from the following campuses:

Baruch: Hill and McCall; BMCC: Aymer, Friedman, Herz, Price, and Vozick; Bronx CC: Gonsher, and Alternate Brennan; Brooklyn: Antoniello, Bell, Jacobson, London, Shapiro, Sheridan, Tobey, and Uctum; CCNY: Connorton, Crain, Manassah, and Sohmer; CSI: Cooper, Foleno, and Levine; CUNY Law School: none; Graduate School: Baumrin, and King; Hostos CC: Canate; Hunter: Doss, and Steinberg; John Jay: Bohigian, Davenport, Kaplowitz, and Lanzone; Kingsborough CC: Farrell, Galvin, O’Malley, and Alternate Barnhart; LaGuardia CC: Beaky, Gallagher, Lerman, Mettler, and Reitano; Lehman: Avani, Jervis, and Philipp; Medgar Evers: Harris-Hastick; NYC Technical: Cermele, Horelick, Hounion, and Walter; Queens: Frisz, Moore, Savage, and Speidel; Queensborough CC: Barbanel, and Tully; York: Cooper. Governance Leaders present: Baumrin (GSUC), Friedheim (BMCC), Kaplowitz (John Jay), Levine (CSI), Lynch (LaG), Manassah (CCNY), Mettler (LaG), O’Malley (KCC), Rodriguez (Hunter), and Tobey (Brooklyn). Excused was Senator Sank (CCNY). Guests included Professors Barler (ME), Dahbany-Miraglia (QCC), Leight (Brooklyn), Lefkoe (Queens), Otte (Central Office), and Richter (KCC). Professor Picciano (Hunter) was a panelist. Executive Vice Chancellor Mirrer and Director of Development Vercesi attended. Executive Director Phipps, Administrative Assistant Pasela, and Secretary Blanchard were present. 

I. Approval of the Agenda: The agenda was adopted as proposed.

II. Approval of the Minutes of September 25, 2001: The Minutes were approved with the following amendments: Professor Rodriguez (Hunter) noted the question she asked the Chancellor was attributed to Professor Neville.

Inserted under New Business: Professor Crain presented the following resolution, which was seconded:

Whereas, the vicious bombings on September 11 have produced tremendous loss of life and suffering, and

Whereas, because our pain is so intense, the natural impulse is to lash back, but massive retaliation risks the loss of more innocent lives and increasing the cycles of violence,

Therefore be it Resolved, that the CUNY University Faculty Senate believes our country should resist a rash impulse to meet violence with violence; instead, our actions should be guided by reason, ethical considerations, and the search for a lasting peace.

Chair Sohmer made a ruling the resolution was not in order since it fell outside of Senate jurisdiction. The chair's ruling was challenged but was upheld narrowly by a hand vote.

III. Reports: [a. and c. are recorded in Reports & Deliberations].

a. The Chancellor (oral).

b. Budget Developments (oral). Professor Levine withdrew his report since the Chancellor’s Report and questions addressed the budget issues at length.

c. Chair (written).

d. Representatives of the Board Committees (written).

IV. Old Business: Resolution on Faculty Development: Professor Hounion, Chair of the Status of the Faculty Committee, presented a resolution which, after several suggestions for revision were made, was referred back to committee.

V. New Business:

a. Panel on CUNY’s Proposed New Policy on Intellectual Property: (Professors Baumrin, Philipp, and Picciano) [recorded in Reports & Deliberations].

b. Resolution on Academic Freedom: the resolution, presented by the Executive Committee, was referred back to committee after several suggestions for revision were made.

A resolution from Professor Crain on Increasing Tuition for Undocumented Immigrants was not taken up due to the late hour.

The meeting was adjourned at 8:55 P.M.

Respectfully submitted,

Bill Phipps, Executive Director

MINUTES OF THE TWO HUNDRED AND EIGHTY-FIRST PLENARY SESSION

November 20, 2001

The chair called the meeting to order.

Chair Sohmer: The agenda, which has not been approved, is before you. All in favor say Aye.

Body: Aye

Chair Sohmer: The minutes of September 25th were disseminated with the call for this meeting. We have one correction in writing. Professor Rodriguez of Hunter College avers that she is not the same as Professor Neville, which was listed in the minutes as the person making a certain statement which actually Professor Rodriguez had made, so we’d like to alter the minutes to attribute the statement to Professor Rodriguez.

Unidentified: At the September meeting a resolution was proposed calling for something like ethics and good sense during this period after the World Trade Center attack, and you said that that was not part of the CUNY Senate area. And a vote was taken and you were upheld. And this does not appear in the minutes, and I wondered why not.

Chair Sohmer: It’s not at the beginning--I didn’t look through the entire minutes. I’m sorry. If it’s missing, we’ll put it back in. Any other comments on the minutes? The minutes as amended, and we will correct them relative to that. [See the minute.]

Any other comments? Professor Levine, we have you scheduled on budget developments.

Professor Levine: I think the chancellor did a very good job [this section actually followed the Chancellor’s report].

Chancellor Goldstein: I will attempt to be brief. Let me bring you up to date on the things I briefed the board on last night, in part in executive session and in the open session. I think most of my remarks this evening will be about where we are in our budget negotiations, with both the city and the state, and then I will entertain your questions.

Let me just review first, on the state side, what we’ve been able to accomplish in the last ten days. When the legislature affirmed the so-called bare-bones budget, we started the fiscal year in a deficit position, which to me means that we had more obligations than we had dollars to cover, and depending upon how you count, on the senior college side, the deficit position hovered around $17 million. I did not believe, quite frankly, that we would get a supplemental budget of any great consequence, so we then went into action about discussing options with the presidents, and independent of that came up with an idea of integrating our capital budget with our expense budget. This is something that the Division of the Budget in the State of New York has been loath to accommodate for reasons I don’t quite understand, but this is something that is very fundamental as an accounting practice in just about any other university system that I am aware of. At the end of this process of discussing options with people in the governor’s office--who I must say were helpful--and with the Division of the Budget, we got agreement to do two things. One, to fully capitalize project staff in the university, and what all that means is that our people who work on projects in the central administration have their salaries covered by the operating budget of the university, when in my mind, the costs of their salaries should be borne by the projects that are bonded. Just about any university system that I’m aware of would do that. We convinced, finally, the Division of the Budget to permit the university, now and in the future, to capitalize project staff, and that enabled us to bring this $17 million problem down to about a $13 million problem, because this saved a little under $4 million off of the operating side.

We also made a pitch for doing something even more bold than that, and that is the CUNY Construction Fund, which is a repository for tuition dollars and a repository for dollars that support the debt service on bonds that the Dormitory Authority sells to institutions and the public to get monies to build the buildings on the CUNY campuses. When you deposit tuition dollars and you deposit dollars to support debt service, there’s a lot of money that goes into this account, but it stays for a very short period of time because it’s obligated. But if you have a lot of money and you keep it for two or three days, over time it generates a positive cash flow, and that positive cash flow generates an income stream, through investments; it’s that income stream that we were trying to petition the Division of the Budget and the Governor’s Office to permit us to capture, saying that this is really "our money." In addition, that fund had a balance because those dollars were not touched, and it grew over time, although the Division of the Budget would use those dollars for various purposes, but certainly not for our operating budget. So at the end of the day, we got permission to do two things, and those two areas enabled us to generate at least $10 million that we can now deploy into our operating budget to reduce that deficit position down to something that we think is much more manageable.

The other area that was a concern in the budget was that the Division of the Budget, with the concurrence of the Governor, required all agencies to "eat" the cost of energy. The incremental cost of energy was not built into our operating budget, and if you have high energy prices and a very cold winter, you find yourself spending an awful lot of money on heating oil and for electricity. Fortunately, as many of you who may be home owners here know, fuel oil has plummeted in price. Gasoline and electric utility prices have also come down. So the problem that we thought we would have at the beginning of the fiscal year has been somewhat muted. With some savings, some efficiency, and some reserves, I think we have the framework for keeping the senior colleges out of harm’s way this fiscal year.

Now, we are facing very difficult times. I want to be very straight and direct and not pull any punches here. We are facing very difficult times both in the city and the state. You know it as well as I do. And while I say I think we have patched together, with the various things I’ve just said, a way to handle the senior college problem this year, there is no certainty at all that at some point soon, we may get a budget modification to say that revenues are being depleted so fast relative to expenditures that there may be a mid-year budget cut that we haven’t even heard about yet. I haven’t heard it, but I just want to put out there that there is that likelihood, that we may have to confront something before the end of the fiscal year, which is June 30th of 2002.

Last night, about five or ten minutes before the Board meeting, I made a decision to pull the operating budget and the capital budget from consideration for the Board. There’s nothing nefarious; there’s nothing deep here. It is really a result of very intense discussions, in the hours preceding the Board meeting, that I was having with the Governor’s Office and the Division of the Budget, that made me believe that it would be better for us to pause and continue to have discussions with the Division of the Budget before we bring the budget message, to see if we can get certain kinds of considerations that we were not being able to get before. I don’t anticipate that the budget that we will bring, probably in the next couple of weeks formally to the Board (it will be preceded again by a public hearing) will look different than the budget that I intended to recommend to the Board last night, but I want to have some additional discussions, which I initiated after the Board meeting last night and will continue to have. Probably it won’t continue until after the Thanksgiving break, but I anticipate within the next two weeks going back and getting the budget approved. It’s going to be a tough time at the state, and the Governor, I think, is concerned, as he should be, that revenues are just not going to be there to support all of the needs that agencies in the state of New York require. This is still an open question, and we’ll see where we go. So that’s where we are on the state side.

Now let me get to the community college budgets, which were much more complicated, and in a sense, much more problematic for the university, but I think we are near--I briefed the Board last night on this in detail, and I will do the same for you in an abbreviated fashion, but you’ll get the same kind of information. We had two PEG reductions. PEG is an acronym for Program to Eliminate a Gap in your budget. The first one, the first really serious one--the first one we were able to dispose of pretty quickly--but the first serious one occurred several months ago, and that was about a $10.4 million PEG, which I believe I had discussed at one the plenaries earlier this year. That was our share of essentially a one half billion dollar reserve that the city administration had imposed on all city agencies and the Board of Education and CUNY and some other organizations that are not directly city agencies. After September 11th, all of you remember that the Giuliani administration said that we are going to create a reserve of $1 billion. Now it wasn’t a billion on top of the half a billion. It was another half a billion dollar reserve. So we were faced with our share of a billion dollar reserve. Now this was done in a way that the City Council could not get their hands on, because if you create a reserve in your own account, it is not technically a budget modification. If it were a budget modification, then the City Council would have to, statutorially, vote on whether this budget modification is allowed. But what we were faced with was a forced reserve, an encumbrance on our operating budgets across all of our community colleges, not allowing us to use that money on operations.

But it came at a point in the fiscal year where if you annualize that 15%, that number really rose to about $25 million. On top of that, it was my view, and the view of the community college presidents, who I asked to give me impact statements about what such a reserve would result in, it was our collective view that this would change the very basic mission of the community colleges. There would be no way with a cut of that magnitude, annualized--and I’ll describe other contaminants on this--that we would be able to accept for study all students that wish to study at our community colleges. We would clearly have to shut the pipeline down, and students would no longer be able to attend our community colleges in the numbers that we would want them to, because the teaching power would have to be reduced. There would be no way that the community colleges could deal with a cut of that magnitude without reducing teaching power of full-time and part-time staff. If that would be the case, we would lose tuition revenue, because for every FTE student that was denied admission, tuition revenue and state aid would be lost. If you factor in those two components, that number of $25 million would very quickly rise to close to $40 million. We’re talking real money here.

On top of that, the City of New York said that they would not fund their obligation on the DC-37 contract that we signed, and that was about $5 million. So we were talking well in excess of $40 million when you factor in all of these things, and every week that you waited, the curse of annualization came and continued to bite you. We’ve, I think, solved the problem in the short run. Two things happened here simultaneously. We believed that this violated maintenance of effort. It clearly violated maintenance of effort. It was affirmed by a lawsuit that was filed where we were named as defendants, but we were supporting the plaintiffs in this lawsuit. I believe that what I’m going to describe to you now--and the process is not yet completed, but we’re fairly there, and I’m fairly confident that we’ll be able to work this out. At the end of this process, I think the city will not have violated maintenance of effort and we will have brought down this problem to very manageable proportions for the community colleges. Let me describe how we were able to work with OMB, with a lot of help from a lot of people. Joe Lhota was very helpful here, in a quiet but yet very forceful way. Peter Vallone was helpful. There were a number of people that we brought in this tent to solve the problem. First there was a flow of dollars that will flow into our community colleges, mainly from two sources. First you may have recalled me talking about the Schinn pension money. There was a $10.5 million fund balance that is a state pension that is allocated for community college personnel. The state said they didn’t really need that money to cover the obligations, and the process that evolved was that that $10.5 million now flows into the community college budgets as real cash, but not as a one-time item, but as a continuing item. It’s actually built into the operating budget. The second thing was that the City of New York assumed the risk on a due bill, if you will, from FEMA relative to the loss that we incurred at BMCC when 7 World Trade Center imploded and took with it the south façade of Fiterman Hall and other collateral damages with respect to the main campus. There was about $14 million in damage outside of the insurance to rebuild Fiterman Hall. The city said that we will assume that risk, and we will take what we think we will get from FEMA, put the money into your budget, and when FEMA actually allocates the money for this disaster relief, that the city would be compensated. So immediately a rather large infusion of cash came directly into the community colleges, and we would, in order to balance this, get to this level of maintenance of effort, areas in the budgets of the community colleges will have to be reduced, but it doesn’t really matter where you take the dollars. If you have dollars coming in and you have dollars coming out, the only thing that really matters at the end of the day is where you net it out, and where we are netting it out is that we will be at a level, if this process is completed, where the community colleges will have to do some minor cutting, and we will buffer those cuttings through some reserves that we have always set up against these kinds of problems, and there should be absolutely no reason for any community college to reduce their teaching power at all. We want to make sure that the community colleges keep the teachers in front of the classroom because if you don’t have the teachers in front of the classroom, you’re not going to be able to educate the students. So that was a mighty lift, but we got that done, and Allan Dobrin, our new chief operating officer was extraordinarily helpful in his relationships with city government. We all worked hard to get this done, so I think that outside of having a midyear cut that I can’t predict at this point we have more or less solved both the senior college and community college problems in very different ways because the problems were defined in very different ways. So that’s where we are with the budget. I may have gone into a little more detail than you needed to hear, but I wanted to give you a background on the things that we’ve done.

On the 8th and 9th of this month, we took the presidents on a retreat. We spent a day and a half discussing two areas that I think need special mention. We discussed in some depth the whole set of security questions that we have among our campuses, issues of crisis management, obviously derived from what is going on in the world. These are all things that are of great concern to us. And we have enlisted through a competitive bidding process the Kroll Group to assist us in doing the kind of due diligence across all of our campuses--one of the things that I want to make sure is that we have minimal level, independent of what campus that we’re talking about, that there is a minimal sufficient level of coverage that I think is required at all of our campuses for a sense of feeling secure, without compromising the cultures of our campuses. Some campuses are, to use the words of the day, closed campuses versus open campuses. I don’t think they’re very useful words. Most campuses sort of fall between those two extremes, and we want to make sure that there isn’t an assault on the culture of a campus, but we also want to make sure that independent of how a campus has evolved over time in terms of its openness that there is a minimum level of due diligence that occurs among our staff to ensure to the degree that we can that our campuses are secure. So we’re going to go through this process of study and then make the necessary recommendations with respect to how we are coming forward.

The second thing falls into a very different approach that we are taking this year with respect to how we are looking to support and invest in the university. So I’m going to revert back now to the budget by coming around to the second thing that we talked about, and it was fund-raising. You’ve heard me say this over and over again. Every university that I am familiar with--every major university like the City University of New York--assumes as an opening condition in putting together an operating budget that there’s going to be some level of resources that are generated to help support the operating budget. It’s a no-brainer. It’s the way the world operates, and it’s a world that I am very comfortable with. That has not been the culture at the City University of New York, and we have to change that. We cannot only depend on the state and the city to give us the kind of resources--we have to do things, as every other campus in the world is doing, to help to support the resources that we need. Everybody in this room knows that there has been very little investment made in this university for a very long time. Independent of administrations--Republicans, Democrats, City Hall, Albany--there just has not been an investment. It is the great tragedy, I believe, in this state, and it’s true at SUNY; it’s true at CUNY; it’s probably more true of public institutions in the Northeast, but particularly true in this state. We must turn this around. Now I would like to turn it around by saying that the doors will open and dollars will start flowing from Albany and City Hall. Especially now, the likelihood of that happening is rather grim. If anything, we may be going in the other way. So how do you get to invest in the university. And that brings me to the last point, and then I’m going to open up to floor questions.

We have to take a very close look at how we administer this university. We have to look for efficiencies in the way that we operate, and we have to look for revenue enhancements to support the ongoing operations of the university, and they can’t be one-shot deals. They have to be things that will be recurring, so that we can count on these kinds of revenue sources to support the university. And we have to redeploy where we spend money to where we should spend money, and for me that’s in our core business. What is our core business? Our core business is about teaching. It’s about learning. It’s about giving faculty the resources to the degree that we can to allow them to expand the frontiers of knowledge, their research and the necessary support, accouterments to do that research. And it’s about breaking the boundaries that separate the university from the community in which it serves. The university has to be part of the community. That to me is what our core business is about. But when you look at how we spend our money, one would say, what’s our core business? Everybody has a personnel department. Everybody has a facilities group. Everybody has this. Everybody has that. It seems to me that over the long run, we collectively as a university need to find a way to more efficiently support our core business by spending money more judiciously in administrative systems so that we can redeploy those dollars for our teaching efforts here at the university. Unless we do that, there’s no investment in the university. And unless we get investment in this university, this university is not going any place. And we have to all think in different ways than we have before. One part of those revenue enhancements that I talk about has to be fund-raising. The presidents are on record that they all must participate in trying to develop resources for their campuses. Now, some campuses can do it a lot better than other campuses for one obvious reason: They are more mature. They have richer alumni, and they have been in the business longer than others. Other campuses within this university are very new to this kind of shift--almost a paradigm shift in how you think about resources for the university. Part of what we discussed at the retreat was trying to put a minimal level, a critical mass across the university to assist those campuses that really don’t have the experience of our more established campuses.

So, the second function, the second outcome of this retreat was about revenue enhancements through fund-raising and how to give campuses some lift, understanding that we don’t have the cash to put in or build up these offices yet, but part of this notion of the integrated university is to find a way to integrate some of the efforts to raise money by assisting those campuses that don’t have the resources to do it by utilizing some of the campuses that do have the resources and compensate those campuses for that transfer of dollars. That’s the kind of thinking that I’m doing now because we must invest in this university, and right now, even in good times, there has been no investment in this university, and now we’re not in good times. We are in very, very difficult situations. I shudder to think about what we’re going to be facing in the next year or two, so now is the time to aggressively find a way to buttress ourselves in ways we haven’t thought of before, and it’s going to take tremendous cooperation and resolve in order to get some of this done. With that, I’m going to stop and I’ll take whatever questions.

Professor Levine, CSI: I’m very pleased to hear your comments about the importance of putting money into instructional staff, instructional power. Is it possible for you to label the productivity savings of $10 million as transfer from administrative overhead into classroom instruction? Chancellor Goldstein: I think the productivity savings are better stated as efficiencies. In universities, when you hear productivity, you think about people losing jobs. That’s not what the message is about; it’s about creating efficiencies. The efficiencies are going to be very, very different depending upon the institution we’re talking about and the administrative areas we’re talking about. Professor Levine: But it’s a really cruel hoax if by efficiency we mean reducing resources for instruction. Chancellor Goldstein: The whole point when I talk about investing in the university, I’m talking about what I just said, is to put money into our core business. Professor Levine: I completely agree on the need for fundraising. Traditionally, the role of the Board of Trustees is to raise money. At this institution, we don’t seem to have that tradition. How can we help you to educate the members of the Board of Trustees as to their responsibility in this area? Chancellor Goldstein: Well, I think that some members of the Board can be very helpful because of the lives that they’ve led. Benno Schmidt, for example, was probably one of the most successful fund-raisers in the history of Yale University, and knows a fair amount about that and has been very helpful in quiet ways about how to position ourselves. One of the reasons that I’m doing the things that I’m doing with the presidents right now is that at some point I want to announce a campaign for CUNY. It would be a little foolish to do it right at this point, until you get the absolute infrastructure in place. I was quite amazed looking at some of our campuses--the infrastructure just is not there.

Professor Stefan Baumrin, Graduate Center: I tried to check this with Speidel, but my memory is not perfect on it and neither is his--I think six years ago, the university put in at least one development person at every campus. From what it seems to me you’ve said, those positions have disappeared in the interim. You might want to check into that. Someone’s eaten those positions. They were in the budget. I know that budget was allocated. I don’t know what happened to the positions. Secondly, you’ve got 3500 free full-professorships to sell. If you sell them a little high, you can keep the difference. We’d be delighted to take our share. Then you might not have to make a deal with Professor Bowen that would be palatable. We know what the numbers are, and so we’re for sale. Thirdly and lastly, you did use the word "likely" in your analysis of the budget, and "likely" always catches my attention--likely budget cuts for the second semester. I’d like you to say a little bit more about that. Chancellor Goldstein: No, I didn’t say that there are likely budget cuts. I said I wouldn’t be surprised, given the economic environment that we’re in, that we may get a budget modification directive from either the state or the city or both. I don’t think it’s necessarily likely, but I wouldn’t be surprised.

Professor Ruth Frisz, Queens College: This is on a completely different topic, but one that really concerns me. We’ve just recently been told that our undocumented aliens are going to be in a position of having to pay more tuition and if they aren’t able to come up with the funds, then they’re going to have to leave. We’ve already, at least at Queens, seen these students in our counseling office that are under these circumstances, and my concern is two-fold. One, is there anything that we can do to at least grandfather in the current students that are in the middle of their education and will have to leave, and what can we do as some type of policy for the future in terms of the students that have gone to high school and have really been here for many years and are not able or haven’t changed their immigration status? I think we’re doing a tremendous disservice at least to our current students, let alone to our future students. Chancellor Goldstein: It’s something that really deeply troubles me. The problem is that we have an illegal immigration reform act that was passed in 1996--I assume all of you have seen Vice Chancellor Schaffer’s memorandum--which basically says that no public post-secondary institution, public because if you’re a private institution, you can do what you want with private money, but with public money, you can’t give a benefit to illegal aliens, non-documented students, that is not given to other students who are residents of the United States. So we have been out of variance with respect to a federal law since 1996. Now as I understand it, in 1998, the general counsel who was here at the time was made aware of this, but because regulations were not developed, I believe with respect to some outside counsel that he worked with, that we should just sit this out and maybe it would go away. Well, we’re at variance with respect to federal law. We’re violating federal law right now, and we have to change it. What can happen? The university--certainly the Chancellor, and I think most of us in the university--are concerned about what’s going to happen to these students, and we’re doing a few things, probably none sufficient to solve the problem at all. We are providing free legal advice for students so that they understand the processes that they may have to go through to help remedy the situation. There are certain students who I just don’t think that’s going to be possible for, but some it is possible for. Some of our campuses are looking at students who are very near graduation, you know a few credits away, and are doing things to give a financial lift to keep them in place. I think each campus is going to try to do whatever they can. The only way that this can be turned around is through legislation. If state legislation could be enacted by, for example, what California did--they created a new class of students by state law. It was brought to the governor on two separate occasions, vetoed both times, and last time it was, it was approved. That to me is the only way, unless the federal law is going to be changed, and I doubt it, especially in the environment that we’re in now, the only remedy, I think would be legislation at the state level. Professor Frisz: Is that in the works? Chancellor Goldstein: It’s something that we haven’t initiated, but there may be some legislators talking among themselves and seeing if they want to do it. I think it would be very difficult because it’s not clear that this would get the kind of support even in the legislature that one would expect.

Professor Bill Crain, City College: The law actually says that undocumented students shall not be eligible on the basis of residence within a state for any post-secondary benefit that other US citizens don’t get. There are ways to keep these students in college. One way would be to make them eligible on the basis of graduating from a state high school. That would be different from on the basis of residence. That is an approach that Texas is looking into, and it probably would work. Another way would be to charge all students in-state tuition. Then there would no benefit. As it is, there’s only a tiny percentage of students that come to CUNY out-of-state anyway. You’d probably have more students and it may perhaps even increase revenues in the process. This is not something we have to do. My feeling is that we should hold off on this decision. We’re going to force hundreds of students out of college right now. Students are already in a frenzy. You know the situation--they’re very poor students. They can’t get TAP. They can’t get federal aid. This is a very cruel tuition increase on them. We could hold this up and think about these alternatives that would still bring us in compliance with federal law, so I ask you to do that, to hold it up. Chancellor Goldstein: We can talk about some of these ideas. I’d be receptive to hearing some of these ideas. I’m deeply sympathetic with respect to many of these students.

Professor Lenore Beaky, LaGuardia CC: I have a question about the Proficiency Exam. Last semester, you mentioned that you had talked to people from Rand about setting cut points for the CPE. I know also that there has been an RFP for outside companies to perhaps establish procedures for grading, new forms, etc. Could you talk more about your discussions with Rand and perhaps update us on this RFP, whether there’s been any response to it, what the situation is. Chancellor Goldstein: The issue with cut points I don’t think is that difficult a scientific problem. I think we know how to do that. Our discussions with Rand really are well beyond using cut points. It’s really about using electronic versions to grade these tests, to find ways to reduce variability among graders, things of that particular nature. We just had a very extensive meeting with probably their top psychometrician, whose name is Steve Klein. He’s a very bright and very knowledgeable fellow who does this for universities all over the United States, so there is an evolving set of discussions with him. With respect to the RFP--Louise, is there anything to report on that? Vice-Chancellor Mirrer: Nothing new to report. Chancellor Goldstein: But cut-points, we know how to do cut points. Professor Beaky: But it will still be an essay exam? Chancellor Goldstein: Yes, it will still be an essay exam.

Professor Manfred Philipp, Lehman: You can imagine that many faculty members will appreciate your comments on the importance of fund-raising in this environment, and to echo what Stefan said, we not only have professorships to sell, but we have buildings to sell. We have lots of unnamed buildings across CUNY. At Lehman we have something called "the Old Gymnasium"--that’s a great name, but we could change that to some donor’s name. More seriously, the new mayor will at some point be appointing trustees for the university. The mayor himself has a huge amount of experience in fund-raising for Johns Hopkins. He’s the chair of their Board of Trustees and has raised a large amount himself. Are you in a position to perhaps suggest names to him of alumni who might be helpful in raising funds for the university? Chancellor Goldstein: Yes, but I won’t say anything more.

Professor Karen Kaplowitz, John Jay: Thank you for the detailed briefing on the budget. Having been at the Board meeting yesterday and having the operating budget request withdrawn until December raised some questions, so I appreciate your detailed explanation. I have a question about it in terms of the city budget. Will what you’ve been able to achieve mean that the city’s contribution will in effect be less than it would have been? In other words, will the maintenance of effort be affected next year because the city will have contributed less. Chancellor Goldstein: We believe that at the end of this process, this year the city will not have violated maintenance of effort. I can’t tell you what’s going to happen next year because I haven’t seen the budget. Professor Kaplowitz: But my question is, assuming that the city honors maintenance of effort next year, will the dollar amount be necessarily less because of what was done this year to enable the city to ... Chancellor Goldstein: No, I think that if you followed--and I can’t expect you to follow all of the transactions because they are complicated--it would be to the favor of the university. And that’s what the beauty of this is if it finishes.

Professor Anne Friedman, BMCC: My question relates to your comments about teaching power and budget at the community colleges. I wonder if you could comment on the status of searches for new faculty at the community colleges and if you envision that changing in any way in the next couple of months. Chancellor Goldstein: I can’t give you a status on that because honestly I just don’t know. Certainly we will make the commitments whole for those campuses for which dollars were placed in their budgets for searches, and I would say that they should continue. Beyond that, I just don’t know where they are and how many we’re looking to hire and which campuses. I could get that information. I just don’t have it with me.

Professor Cecelia McCall, Baruch: You’re not reporting out the budget to the Board of Trustees yesterday and you’re saying that there’s going to be another budget hearing, so one has to assume that there are going to be some substantial changes? Chancellor Goldstein: No, and I’m just being very straight with you--there’s nothing nefarious or mysterious about the action that I took. I was in very intense discussions over the past couple of days with not only people in the Division of the Budget, but in the Governor’s Office, and I wanted to make sure that we were in an optimal position with respect to what I think we need to present to the Board. And I think that we just need a few more days to continue those discussions. I don’t believe the dollars are going to look at all different than what we have proposed. It’s just the way it’s presented and the language to associate with it. Professor McCall: Then on the community college side, you reported $25 million in cuts, and you’re getting back $24 million. Chancellor Goldstein: No, no. I said if you annualize. It’s the annualization that’s really raised its ugly head, but if you get the cash put in and the reserve is unleashed, then there’s no more annualization problem. I don’t know where the actual number is going to wind up, but at the end of the process, the way this model has established, the city will not violate maintenance of effort. I have said publicly, and let me repeat this, that when the mayor imposed these reserves and the Board of Education received a 2.5% cut and the police and firefighters received a 2.5% cut, I said it would be unreasonable for the university to say "We stand alone and we shouldn’t be touched at all." I believe that we should participate to some degree. I just thought the level of participation was harsh, and it would have a very detrimental effect on the university. The city would still be in conformity with its maintenance of effort provision if we have something on that 2.5% cut. I’m not exactly sure what the target is, but that’s the right order of magnitude.

Professor Bill Friedheim, BMCC: You said that the city of New York is going to assume the risk on a pending payment of $14 million by FEMA and this is money in excess of what the insurance covered for Fiterman, which is one of the buildings at BMCC. Chancellor Goldstein: I’m not sure that this 14 would be covered necessarily by the insurance. I don’t know because we haven’t sat down with the insurance adjusters to come to a conclusion about what it is that they would cover, and the same thing with FEMA. That’s still an open question. One of the things that I didn’t report on because there’s just too much to talk about tonight is that I personally have been spending a lot of time during the last few weeks in Washington with our Congressional delegation, with Congressmen Rangel and Sweeney and Walsh, Crowley, Adler, Hinchey, Lowey. The purpose of all of these meetings has been to really position ourselves to get this disaster relief. And I’ve met with Senators Schumer and Clinton, several meetings with them, to get consideration for the disaster relief money, so I’m fairly confident that if the state of New York gets the full $20 billion, plus some, that we should be in a position to get some back to the university. I don’t know when that money is going to come, and it’s a matter of cash flow. When it comes is very important. We need the money now. What the city is doing is saying that we believe you will get FEMA money. Professor Friedheim: Let me ask a question about the $14 million: Isn’t it spoken for? BMCC, as you well know, took a big hit as a result of September 11th, and lost a building, or it seems we’ll be losing a building whether Fiterman is torn down or renovated or whatever. We’re now in a position where 28 new classrooms have been literally stuffed into the main building. An additional 12 classrooms have been put into trailers. The $14 million I assume is for Fiterman and to relieve BMCC from the burden that it now faces. Chancellor Goldstein: The $14 million had nothing to do with Fiterman Hall. That’s going to be covered by insurance, whether it is to replace Fiterman Hall--and I think the number we have for replacement is about $275 million. So put aside the physical assault to the building. The things that we would need money for immediately is the money that we have expended now. All of the trailers that we have purchased. That in itself is about $12 million. The clean-up. The overtime for people. There’s a whole list, and quite frankly I don’t have the ledger in my mind of what all of that monies were, but it came to about $14 million. That’s what we have actually put on the table. We have taken it out of our coffers and put it on the table and spent that money. We would have expected to get that money back, or a good part of it, and what the city is saying is "we believe you’re entitled to it, so we’re going to advance you the money, and we’re going to take the risk. We’re going to take the risk off of your shoulders and we will deal with FEMA, and we’re going to put the money into your budget now." That was what the transaction was. Professor Friedheim: So we can transfer that money to the operating budget of all the community colleges? Chancellor Goldstein: Absolutely. It’s money. Money is money.

Professor Martha Bell, Brooklyn College: One about the undocumented immigrants. I’d like to remind you that there is New York State legislation that allows those students to be SEEK students and requires them to be given SEEK funds, which requires that they be New York State residents, which is at odds with charging them out of state tuition. Chancellor Goldstein: It’s too late for me to absorb all of this, Martha. If you want to talk to me privately about it, I will. I’ll look into it. You promised to email me on the other thing, so email on that, too. Professor Bell: The next one is on efficiency. One of the things that we did was centralize main-frame computing among the colleges, a good thing except that this fall there was poor planning on someone’s part that didn’t allow all the campuses to be on to do registration at the same time during the week before classes when of course everyone is trying to do registration, and the various colleges had to take turns crashing. Chancellor Goldstein: You mean the capacity was not able to accommodate us? I hadn’t heard that. Professor Bell: To have students wait three or four hours for the computer to come back up to register really hurts registration. It would be a lot better if we could have the capacity during that period.

Professor Sandi Cooper, CSI: At the end of October, the federal government had amended the act which had guaranteed the privacy of student records, the Family Educational Rights and Privacy Act, quite significantly, to eliminate a number of legal protections, mostly for foreign students, enabling federal agents and the Justice Department and even district attorneys to do such things as tap into Internet communications, according to this summary I have of the implication of this act. I’m wondering whether the university has studied this and what policies are going to emerge for our dealing with it. As someone who has a very distinct memory of 1952-3 when the FBI agents prowled the halls of City College with the freedom of anybody to get records as they wish, I remember that it led to a number of disastrous decisions on the part of graduating seniors who were suddenly declared security risks because they’d gone to a political committee meeting. I really would be interested to know whether this is an issue that is going to be examined. This law is extraordinarily sweeping. It has implications for more than foreign students, and it orders university administrators to hand over records without informing anybody, if this breakdown is accurate, so it’s conceivable that the legal affairs office should drop everything and take a look at this. Chancellor Goldstein: We had a very brief discussion that may not be on this particular act, but Rick Schaffer reported on a few phone calls that he has received. ... I honestly don’t know, but I’ll ask Rick about it.

Professor Susan Price, BMCC: I want to ask a question about ESL enrollment, which has been very constant at BMCC over the years, and all of a sudden and very unexpectedly we have dropped almost 400 students. I don’t think this is university-wide and we’re not sure why it is, though we have a couple of ideas. What I wanted to ask you is do you have any indication that perhaps the Regents requirements in high school have had an impact on the number of graduating students that might have come in as ESL students? Chancellor Goldstein: I don’t have the answer to that. Louise, do you have any knowledge of that? Vice-Chancellor Mirrer: We don’t have a sense that that was--I’ve heard about BMCC and I know that we’re doing more research. David Crook has been looking at how enrollment is counted and whether that’s part of it. We are looking into it.

Professor Jamal Manassah, City College: In early September, the chair of the Senate and the governance leaders from John Jay, the Graduate School, and City College met with the Vive-Chancellor for Legal Affairs. The question was--we have governance documenst. Often they are open to disagreement in interpretation between the faculty and the administration. Often they’re not being obeyed. Often they’re forgotten. The question that was asked of the Vice-Chancellor for Legal Affairs, and he was supposed to hopefully discuss it with you and come back to us with an answer: Do we have a system within the university where some adjudication can be followed up on such issues? Chancellor Goldstein: If there’s a violation of the governance structure? Professor Manassah: Right. Chancellor Goldstein: Any action that is taken by the Board and recommended by me, that is one of the first things we always ask about, and if we feel that there was a blatant violation of the very basic foundations of governance at an institution that was bypassed in order to come forward with a recommendation, we will take that very seriously and either stop it or really engage with the president. So I can’t say that there’s a formal process, but I can assure you that we take these things seriously, and sometimes the violation is a minor violation and subject to a lot of interpretation, and I’ve experienced some that were really just blatant violations, and that’s something that we wouldn’t allow to move forward. Professor Manassah: So am I translating you correctly--if there are such cases, the phone number to call is that of your office? Chancellor Goldstein: I wouldn’t call me. I’d call somebody else. I’d call Bernie Sohmer. He likes to get those calls.

Professor Ellen Steinberg, Hunter: Do you have any anticipation of the size of the budget cut, or the budget modification we might call it, that we might get, and where would the adjustments be made. Would it be OTPS, personnel, capital expenditures, or all across the board? Chancellor Goldstein: I don’t have an anticipation that we are going to--all I said was that given the very dire economic environment in which we all are living in this city and this state, I would not be surprised that after the first of the year in the Spring semester we may have some modification of our operating budget. I’m not anticipating it, but I wouldn’t be surprised. I would rather, obviously, that it not happen. I have not heard anything for the city or state government that would point to that eventuality. I’m just looking at the economic climate that we’re living in and it’s not great. With that, I’m going to have to go.

Chancellor Goldstein: Good. Thank you very much.

Chair: There is a conference that we are running on November 30^th. The schedule is in the back, and you all got it in the mail. I wish to remind you that it will be taking place at the Hunter College School of Social Work, which is on 79th Street and Lexington Avenue.

I don’t know how many of you were involved or should have been involved--the Chancellory have sent out to the various presidents two requests on budget. One is a budget request for next year, asking the presidents to come up with one, and another one asking the presidents to remark on how various cuts at various percentage levels would be made on the particular campus. And those letters which went to the presidents included a paragraph saying you must, of course, consult with the appropriate governance leaders on the campus in making these statements to the Chancellory. To the best of our knowledge, most of the statements that were sent in to the Chancellory from the presidents on most campuses involved essentially no faculty input at all. In most of the campuses the largest faculty involved was a receipt from the president of a statement saying "This is what I’m gonna tell ’em" and "If you have any comments, it’s okay, but I already sent it in." If this is an incorrect impression, would you please let us know, but we did have the letters, and we are quite sure that it’s right.

Professor Baumrin: The president of the Graduate Center mailed all elected faculty and requested a response. They did have the opportunity to comment.

Chair: There were a few exceptions, but they are really the minority. The President of the Graduate School did indeed consult. The President at Brooklyn College did indeed consult. The President at Queensboro did indeed consult. We happen to know about those, but we are relatively sure that on most campuses there was essentially no consultation of any sort, not even cursory.

This is the season at which elections for the Faculty Senate are taking place on most campuses. Please, and I implore you--there are many campuses on which there are vacancies. In these troubled times, it really, really is important for you to encourage other members of the faculty to participate as well as yourselves in this Senate.

We have asked and the chancellor mentioned it, but mentioned it in a way that I think did not take care of the problem--there seems to be no serious protocol for handling dangerous things on campuses. On one campus, I believe, the head of security suggested that if you receive an envelope with some white powder in it, smell it and see what it is. He didn’t say taste it--he said smell it. We have requested and I have received no response for a centralized protocol to be created so that all the security on all the campuses are at least aware of the seriousness of the problems and don’t come up with idiot suggestions. On another campus, there was obviously some adventitious white powder in someone’s office. The head of security said "I’ll do something if you really want me to," and left it up to the person whose office it was whether they "really wanted him to." Fortunately, the answer was "Yes," so that office was closed down.

May I make a serious plea? This body is not the body for the resolution of collective bargaining issues or for the support of either local or national political figures. We have lots of responsibilities, but those are two that aren’t in the collection, so I plead with you--the mere fact that you have a microphone in front of you not to enter into these issues. There are other venues for this.

We have initiated a request for Bloomberg, the next mayor, to be the guest of one of our next meetings. We don’t yet have a response, neither no nor yes, and we’re not sure which it’ll be. He seems to be willing to make trips, so he probably will attend one of our next two or three meetings. Are there any questions before we go on to the resolution on faculty development?

Professor Manassah: Is the Executive Committee going to address the question I asked the Chancellor about governance on the campuses, and if so, are you to make a protocol? That would be very helpful.

Chair: We will set up some protocols so that when an issue arises, it will be followed through on automatically, rather than via the accident of who calls whom when.

Professor Speidel: The Queens College administration has sent out a letter to all faculty and staff on how to handle mail, in the full generic sense. Would it be useful for you to have a copy of that disseminated?

Chair: Sure. Until something centrally goes on with all of security, if something sensible has occurred on some campus, we can always transmit it to others. Morris, on faculty development, would you? In your packets was a resolution which was left over from last week.

Professor Morris Hounion, NYCTC: You all have resolution on faculty development that was passed unanimously by the Status of the Faculty Committee and the Executive Committee of this body. Just a little background--we sent out questionnaires to all the liaisons on all the CUNY campuses asking about faculty development programs at the individual campuses, and we got a number of responses. Some CUNY campuses have more, some less. We also invited to one of our meetings the head of the faculty development program at the Graduate Center, and he spoke to us about CUNY-wide faculty development programs, and also I went to a meeting of the English Discipline Council and got some responses from them as to ideas for faculty development, many of which are in the resolution which you have. And many of the Whereases and so on I don’t think are very controversial--that colleges should have money for faculty development, and that there should be time, and all faculty including adjuncts should have opportunity. So the resolution is before you and hopefully you will vote for it.

Chair: The resolution from the committee is before you. It’s on the floor. Any questions, statements? Stefan?

Professor Baumrin: In the third Therefore, it says colleges should make available a certain percentage of reassigned time to faculty involved in blah-blah-blah. Is that a certain amount of the total available reassigned time of the college, or a certain amount per faculty member? I’m not exactly sure how this works, or what this is targeted at.

Professor Hounion: I would assume that the faculty member would be given tasks for reassigned time depending on research.

Professor Baumrin: Oh, then it’s a non-starter. The other way, if you say "Two percent of all FTE at the college should go to faculty development. It’s an outrageous number, but let’s say two percent," they might say, "Alright we’ll give you two percent--we’ll give you half a percent," but if you say a portion of every faculty member’s program should be made up of reassigned time, that’s a non-starter. That’s 12.5% when you take the community colleges and senior colleges together, that’s 12.5% of your total teaching power. So I don’t think this may be saying what you want it to say. I’m not sure what you want it to say.

Professor Speidel: Item number six -- travel funds should be available for research and faculty development--the contract says travel funds must be available for that, so I think that this is really inappropriate here. Five, union initiatives and proposals in regard to faulty development should be supported. I’ve gotten burned an awful lot over the last 35+ years without seeing the specifics of what is being proposed, and I would be very unhappy with the idea of supporting something that says it should be supported regardless of what it is. It doesn’t say regardless of what it is, but that’s the implication of what is there.

Chair: Are there any other comments? I would say from the several comments, which seem to be critical, that this should be returned to committee. I’m not sure that it’s an appropriate thing for a chair to say. There are some modifications that almost certainly should be written into this document.

Professor Frisz: It ’s appropriate for a member to say it. I’m going to move that this be referred back to committee to refine and specify on some of the items that were raised by the members today, so that we may vote with more knowledge and information the next time.

Professor Friedman: Is it appropriate to speak to the motion? I want to make a recommendation. I’m the Executive Committee liaison to that committee, and I have been privy to the work in discussion. I have no objection to it going back to committee, but I think if I can speak for Morris and the committee, we would appreciate concrete specific suggestions and wording as to what we should eliminate, put in, and that would really help us to streamline the process and bring it back.

Chair: I believe the membership understands that. Alan?

Professor Alan Cooper, York: The resolution that we have says, after the Therefore, Be It Resolved, that the following recommendations be approved to expand faculty development. Now that’s a nice subjunctive indicator. And then we have a whole list of "shoulds." And if we are voting for a whole series of actions, even if they’re called recommendations, then I think that the language of every one of them should eliminate the "should" and begin with "that" and replace the "should" with "be" or "have"--that every CUNY college have a budget, that a faculty dominated body at every college make decisions, etc., because to vote on "should" is really to vote on water.

Unidentified: Point of order. This is not on the motion to refer.

Chair: No--it was an amplification. Well, the motion to refer is before you, and a grammatical exegesis was presented. The motion is to refer, and we would hope that it will reappear at the next meeting of the Senate. All in favor of referring? The motion carried by voice vote. We are now at the panel hearing, and everybody is here.

V. New Business

a. Panel/Hearing on CUNY’s Proposed New Policy on Intellectual Property

Professor Philipp: This session is basically meant to give you an opportunity to ask questions about the existing and the proposed intellectual property documents. Some articles appeared on email if you’ve seen them, and this week’s issue of the Senate Digest has an article I wrote describing some of the changes. There is a copy of this document in the back, so my own comments are going to be minimal, since you’ve read my comments. But on the other hand, I’ve asked some well-known and renowned experts in the field of copyright and patents at universities to sit next to me. Tony Picciano served on a PSC-CUNY committee on intellectual aspects of distance learning. Is that a good way to characterize it, Tony?

Professor Picciano: It was a generic educational technology committee, but its main topic was intellectual copyright and distance learning.

Professor Philipp: And this committee was involved, I think, in the moratorium for a while on distance learning at CUNY. And then we all have our friend Stefan Baumrin, whom we already know. So at this point, I would like to summarize what happened. There are existing policies in the university for copyrights and patents, which are available for anybody to read on the website. The policies on patents are a little more restrictive than those on copyrights. Basically those on copyrights belong to the faculty members. Patents are considerably different. They belong to the university and can be extracted with great difficulty. Current procedures are very difficult for patent-holders, of which I am one. It is difficult to get a patent through the university because of lack of funding and lack of any clear organization. So there was a lot of unhappiness about that. The Chancellor convened a committee to review policies about patents and copyrights. This was not the first such committee. Tony, I believe, served on an earlier iteration of such a committee, which collapsed on the issue of whether there should be one policy for both copyrights and patents or two policies. The Chancellor’s committee, which was chaired by Rick Schaffer, who is the attorney to the Board and the Vice-Chancellor, insisted on having one policy. I objected to that, and I think my other objections are listed here, the main one being that I think that any policy for copyrights and patents for the faculty has to be something subject to collective bargaining by the PSC. That was a fundamental thing that I put out at the beginning, the middle, and the end of these committees’ deliberations. You’ll see that in the second sentence of my article I mention that it had only token faculty representation. I’ll say no more. Maybe I should turn it over to Tony.

Professor Picciano: Thank you. I’ll just make a couple of brief comments. It was my sense that the purpose of this evening was really to respond to your questions. I think the area of copyright, intellectual property, and patents is a very complex area, and if you look around the country, you will find documents that are very thick in terms of how universities have dealt with the policies with regard to their faculty. Over the last three, four, or five years, every university, even if they’ve had a long-standing and generally well-respected patent and intellectual property and copyright policy, has probably reviewed that if not changed it, mainly because of all the changes in media and the way faculty are teaching, particularly in terms of using digital resources, the Internet, the World-Wide-Web, etc. I think a critical issue that this body should consider, and Manfred touched on it, is that over the last four years, I would say, the university has visited the issue of intellectual property, patents, and copyright, and each time the process involved, I think, did not allow for as much faculty participation as it could have. The first committee I participated on, which was formed in 1997, with then-acting Chancellor Christoph Kimmich, it was the issue of copyright and patent, although that was a minor issue, and intellectual property was discussed in the framework of Web-based distance learning, and for that committee the Chancellor convened an educational technology committee, which is provided for in the PSC collective bargaining contract, and there were five members chosen by the PSC and five members chosen by CUNY management to develop a policy in this area looking specifically at these issues as applied to distance learning. A memorandum of agreement was eventually signed by both the chancellor and then-president Irwin Polishook, under which we’ve continued to operate, for those of us who are doing World-Wide-Web-based distance learning, which essentially provides that the faculty owns their work unless he or she contracted for this with the university.

On a second committee on which I participated, and I believe Stefan participated with me, the PSC had two representatives, the UFS had two representatives, and management, as I recall, had six representatives. That committee met for all of the Spring and into the Summer of 1998. It was a very heated committee, the result of which was that nothing really was ever resolved, and the committee fell into disuse in the summer of 1998 as I recall. The iteration that Manfred is providing you here in this draft policy called for two representatives named by the Faculty Senate, no representatives from the PSC, and I recall there were seven members from CUNY management, and it seems to me that faculty participation has continually declined, and I would even say that on the present committee that drafted this policy, the faculty participation was really tokenism. And with that, I think I will pass it on to Stefan.

Professor Baumrin: I want to comment a bit about the political situation. I think it’s right that you ask questions, and we’ll fill you in as best we can, rather than us making little speeches. I don’t think the difference between 50-50 and 6 and 4 was critical. I do think the difference between 7 and 2 is critical. But in the case when it was 6 and 4, when we served on the same committee, the swing voice, which was the then-head of the Research Foundation, lost his head because we couldn’t come to any agreement, and the guy who was running it ceased to be with the university as well. So something is motivating the Chancellory in a much stronger way than might be motivating each of you. I didn’t go in there--I in a certain sense didn’t care--I just didn’t want anybody taking money out of your pocket while you weren’t looking and figuring that nobody was, but they actually were. So we got together--we hadn’t really even talked to each other before we came into that meeting, and we got pretty hysterical. That’s why Tony says it was a heated committee. And when we adjourned to meet again another day, the telephone never rang again, and the only draft that we worked with was one prepared by the Chancellory and indeed, the modifications that we argued for strenuously hardly surfaced in the subsequent drafts. The issue that they wanted most seriously to press at that time doesn’t appear in the Schaffer document, which is something called a shop license--I suspect it’s there and not obvious. There was a suggestion--we got an email from a faculty member, Anthony Carpi--I’ll let you read it. This email put its finger on exactly the right spot.

Anthony Carpi, Chair of the Subcommittee on Technology of the John Jay Curriculum Committee:

Dear Bill, Unfortunately, I will not be able to attend tonight’s meeting on intellectual property because of a class commitment. However, as the chair of the Subcommittee on Technology of the John Jay Curriculum Committee, I have a point to raise. The John Jay Curriculum Committee recently unanimously passed an objection to the proposed CUNY intellectual property policy based on the fact that it, either intentionally or inadvertently, seems to lay claim to all the material created on computers. I’ve pasted the text of this objection below. Please let me know if you have any questions. The objection is : The CUNY intellectual property policy states a general rule the creator shall own all rights in copyrightable works....

Subsequent to this there is another feature, and the other feature is computer code. Once you analyze the phrase "computer code," which sounds like "Oh for heaven’s sake, let them have that," it turns out because the range isn’t specified; it means actually anything on a computer. Now if what I just said isn’t perfectly clear, I can explain it, but if you had said the computer code, but not, say, email programs--if you exclude anything, you actually exclude everything; if you exclude nothing, you include everything, because the word "code" has no boundaries to it, and it really is the Boolean algebra underlying the machine.

Unidentified: Then how would you frame it?

Professor Baumrin: We know how to frame it. Whenever Tony and I get on the committee, or Fred gets on the committee, we know how to frame it. We just frame it so that it excludes everything they want to include.

Professor Philipp: I brought this up to Vice-Chancellor Schaffer and he admitted that he doesn’t agree with the wording of the document, either. On the other hand, I think it needs substantial revision. They’re going to yield on this, but I don’t think this policy will see the light of day soon, anyway. If you read the article that I wrote for the newsletter, I addressed it at one point, in fact in the same way. At this point I’d like to mention another letter that comes from Ezra Shahn. Well, I’ll read it. He says that if he had been here, he would have pointed to the different preambles in the current rules and the proposed rules.

First, the current rules suggest that the university has a role or a right in determining how financial interests might accrue from efforts that are supported by the university RF-controlled funds. The proposed rules suggest that the university has an interest in the "work product" of "the universitycommunity." It ignores the fact that the university community as a whole or as an entity has no work product; it is the individuals in this community who do. Their individual creativity on their own in non-sponsored activities should remain theirs to dispose of or to contract for on their own. For the university to insert itself into the ways in which individuals connected with the university dispose of the fruits of their creations is either a theft or is based on the idea that employees of the university are essentially slaves of the university. If you are so moved and/or the occasion presents itself, feel free to insert these thoughts.

So that’s another take. Tony, I think you have something.

Professor Picciano: I think that there are several issues here. Both Stefan and Fred have mentioned that while the first statement looks very positive--the creator shall own all copyrightable works -- the footnote excludes anything in digital format, which to me, given the way the media is going, means if not immediately today then down the road a piece, just about everything is going to be in some kind of computer-readable form, so that that opens up a very, very big loophole for the university to benefit from. I think there’s another issue here. Stefan referred to the shop license. I would also refer to it as work for hire, and the work for hire is a very common stipulation for all kinds of organizations that basically what employees do in that organization is owned by that organization, and the State of New York has such a clause, a work-for-hire clause. Typically, university faculty have been excluded from that. That is not 100% clear and in the committee in which Stefan and I participated two years ago, we had some serious debates with then-Vice-Chancellor Roy Moskowitz on that, and this debate went on at least two or three meetings, whether that work-for-hire clause applied to university faculty within CUNY or SUNY. Work for hire is not mentioned in this document at all, but there is a license to the university, which is like a work for hire, which says that intellectual property owned by a member of the university and created or used by such member of the university in the course of instruction, including distance education materials, shall be subject to royalty-free non-exclusive license to the university to use such intellectual property for internal educational and research purposes. That is like a work for hire. Basically the university is saying whatever you do, it can be used by them for their internal purposes. What is excluded there is that they cannot go and sell it to some commercial firm, but they have complete use of it as they wish. I think that’s a critical element here that needs to reworked. There’s a couple of other items that are minor, but we have a couple of speakers and I believe that our purpose was to respond to questions.

Professor Speidel: Apropos what was just said, it certainly seems that work for hire supports Manfred’s premise that this is a PSC matter. A comment and then a question: In 1970, the federal government insisted that they no longer wanted to deal with the individual colleges and forced the university to set up the City University Research Foundation. In 1971, as part of an earlier version of the integrated university, the Research Foundation was looking around for things to do. They thought, hey, wouldn’t it be neat to do something and incorporate all of the policies on patents, because some colleges had it, and some didn’t, and they thought everybody should have one. There was, I would say, maybe 15 months of rather brutal back and forth, and everywhere along the line, it was agreed that patents and copyrights are two totally different things. That was the policy that was finally approved, and it lasted with some minor modifications for almost 30 years. My question: Why and from where is the pressure coming to change the policy that now exists. Is it that they feel that there are certain things, such as artistic work that have not been covered, computer code, whatever that may mean, as you’ve just said, that are not covered, where federally, it seems that the courts have come down on which ones are patentable and which ones are copyrightable? Do you know where the pressure is coming from? Is there a specific reason? If there is a specific reason, and can we counter that in some way to make certain that the same policy does not cover copyrights and patents? Professor Philipp: Maybe I should cover that. There is outside pressure from the Bayh-Dole Act, which asks that the universities change their policies in a way that is in some ways covered by this. However, the pressure to unify the documents was stated fairly clearly in the last committee. They want to capture the revenue stream from copyrights on computer-related software. Professor Speidel: If it is strictly that, and the language that they are using covers this,--Professor Philipp: It covers more.-- it would seem that novelists, textbook writers, anything that is basically done would be covered in this way. Professor Philipp: Yes. Is it then reasonable to ask that if this is the case and we do this on Saturday and Sunday, we ask that they immediately raise our salary by 2/7ths, and that since we do this in the summer, that there’s a 25% bonus, and it’s understood that we have to be creative? Professor Philipp: I think that you should ask the person right behind you [the next speaker].

Professor Cooper, CSI: Part of my question dealt with the Research Foundation, because I also remember that moment, but slightly differently. Is it possible that they could create two policies, one for the Research Foundation and one for everyone else, and then capture this work under the Research Foundation policy, which obviously we’re going to have much less to say about--or maybe it’s not obvious. I have a second thought, but would you do that first? Professor Picciano: I think that’s a very good suggestion, and historically, as was just presented, the original CUNY policies on patents were something separate and apart, and they only covered sponsored research that was administered through the Research Foundation, and that existed for a good 30 years, I would say. I don’t understand the rationale why there was the attempt to integrate sponsored research--a la department NSF grant, or any kind of federal grant--with the day-to-day instructional work that we might do in a classroom, where we produce materials for our students--why the integration is there to me does not make sense, and I think that we have made that point many times in forums. There was a definite attitude, and I’ll use that word very carefully--on the part of the Vice-Chancellor at the time, Roy Moskowitz--that the university management wanted to merge these two areas together, and I think the idea was not necessarily the textbooks, but I think there was something about the computer code, that maybe there was something very valuable there. I might disagree with the value of some of it, but there was definitely a sense that faculty were engaging in another element of productivity or saleable items that might have value that the university wanted. We should know that CUNY is not unique in this. The universities throughout the country are looking at this, and a lot of the changes are being made because of the digitizing of our work, which makes it a lot easier. Just think about it--when we’re in front of a traditional class with students and we’re using our best Socratic method and whatever to teach, it’s very difficult to duplicate that. But we take that and somehow become very creative and put it on a computer and make it available on the Worldwide Web, and this looks very attractive, and there’s a sense that, "Hey, maybe we can sell this," and maybe the university can sell it. And that’s going on throughout our profession, so I think it’s the Worldwide Web, the Internet, the way faculty throughout the country are embracing this in many ways, not just for distance learning, but just for doing our face-to-face and traditional courses that has moved a lot of the university administrators to relook at this and to try and basically adopt a patent policy and apply it to instructional activities. Professor Baumrin: The revision of the original policy occurred just before I became chair of the Faculty Advisory Committee to the Research Foundation--this is this ’85-86 revision--and all I remember about that right now is saying, "No, no, no, no" to the question of modifying the copyright exclusion. The policy itself need not have existed because everything under it was basically excluded. Now in the argument--this is the only important thing I have to say, I think--in the argument about the shop license, I got the distinct impression, feeling just about as naive as I felt when I was a 28-year-old faculty member and I didn’t know what the subjects were, much less what was going to happen--it appears as if it was all linked to distance learning, that they believed that the faculty would enthusiastically set up distance learning materials, which then they would get control of; presumably the faculty members would then disappear, or they would get checks in the mail, and they would sell them over and over and over again. It seemed so laughable, it was hard to take seriously, so it was much better to fight about the principle rather than what was in their heads. I can’t think of any more deeply nefarious reason for them to make such a big deal out of what seemed such a small matter, but they did, and they held on tenaciously, the ones who were holding on. They had the vision of 12 faculty members mastering the distance learning techniques and substituting for a whole university, the City University of Phoenix.

Professor Cooper: They asked one of our colleagues if she’d take $30,000 to have her lectures taped and broadcast. She said no, and I don’t know what committee that went through. I just had a call about that. I had a second part to this--somewhere in the last few weeks, in the deluge of papers that arrives came this--I think it’s off the Internet--from the SUNY system, from Bill Scheuerman, the head of the UUP, and a Q & A on their intellectual property policies, which apparently the faculty have signed off on if I’m reading this correctly. I just glanced through it. Have we looked at this and proposed that this has got shortcomings that we don’t want? Is it something we can use as a battering ram if it’s desirable to try to break through this? I don’t know really whether anybody has studied this. I could study it from now ’til doomsday and not be able to answer the question. Professor Picciano: I haven’t seen the new draft of the SUNY, but I did speak with someone who was involved with drafting that, and he basically said to me that the faculty still essentially own their materials, and that was his statement and I asked him about it, but I haven’t looked at it. Unidentified: That’s not the document. It’s Q & A. Professor Picciano: But I did speak to Eric Frederickson, who actually is involved with the entire SUNY learning network, and his response was that essentially the faculty own all the work that they develop. So if the faculty signed off on it, that would be-- Professor Cooper: It means Ryan, the Chancellor, signed off on it.

Professor London, Brooklyn College: I’d like to thank the three panelists for the leadership you’ve shown over the years in dealing with intellectual property, and I think it’s leadership that’s going to be needed in the immediate future to have a policy that is both acceptable to the faculty and enforceable, in the interests of the faculty. I’d like to take just a moment to explain where we stand in collective bargaining with CUNY management on intellectual policy. They issued a draft document that we all know about last Spring. Upon receiving that, we wrote to the chancellery, to the Vice-Chancellor for Legal Affairs, and informed him that it was our opinion that they could not simply issue this policy, but rather that they had a duty to bargain with us on it. That continues to be our policy. Over the summer, we got a response, and in their opinion, they believe that they do not have a duty to bargain, that it’s their policy; it’s the Board of Trustees’ policy; and they do not need to consult--I’m sorry, they do not need to negotiate with the PSC over the impact of the terms and conditions of that policy. We then filed an improper practice with PERB, and that’s where things stand today. Of course, that’s in our original demands and it’s something that we continue to press. Certainly it’s something that as we all understand is a very important issue. So we continue to press. Now, that’s where things stand. CUNY management says they don’t have to talk with the PSC about this--it’s their policy. Of course, as we all know, whatever policy they may put into effect today, even if they do make certain changes, is a policy that they can change tomorrow. As we know from our former Chair of the Board, any by-law or policy that they make today can change at will, so certainly I think it’s in the faculty’s interest that the impact of the terms and conditions of this policy be negotiated with the PSC. I think that it’s also very important for the Senate body and members of the faculty and professional staff at large to put whatever pressure they can to both change the policy substantively as well as to have management negotiate the subsequent policy with the PSC. In your introductory remarks, you mentioned the moratorium. It was clear that the moratorium was a very effective measure in catching the attention of CUNY management early on, and I think that at this point, we’re going to have at least think about such measures again. We hope that that’s not necessary. We think that the law’s on our side, precedent’s on our side, but it’s something that we all should really think about seriously. Professor Philipp: Thank you, Steve. I should mention that during the meetings of this committee, I consulted with Steve at periodic intervals, because what the committee was doing was clearly of great relevance and interest to the PSC.

Professor Levine, CSI: The exclusion to the policy on copyright, of intellectual-property-generated grant support--does this mean that if I accept a PSC-CUNY grant, I am signing away my intellectual property rights? Professor Picciano: I’ll start it, but I don’t know if I have the reference--if it’s sponsored research, Al, the basic stipulation is "ownership of intellectual property resulting from sponsored research shall be determined pursuant to the terms of the agreement between the university or the Research Foundation, as the case may be, and the sponsor, as otherwise required by law. If ownership is not defined in the agreement, intellectual property shall be owned pursuant to the general rule," which puts you back to "The creator shall own all rights," but then you get into the exceptions, such as computer programs and computer codes. Professor Baumrin: What was your question again? Professor Levine: If I accept a PSC-CUNY grant, have I signed away my rights? Professor Picciano: I don’t think you’ve signed away your rights. It is not considered sponsored research--I will accept that--but if you’re doing anything that involves computer code, then you--that’s the loophole through the whole document. And the university always owns it, or the university can always use it for internal purposes.

Professor Vozick, BMCC/York: I have two comments, one substantive, and one perhaps comic relief. The substantive comment has got to do with the dispute resolution procedure. It seems to be perhaps imbalanced. There seems to be no independent faculty voice representing the Faculty Senate or any faculty body at large, or any faculty representation from the college, so I just envision the representative of the person who did the work as standing against the university outvoted and ridiculous--he has no say. Professor Picciano: Absolutely. Professor Vozick: The second thing is the use of the term "The Creator" to characterize the person who produced the work, given the other uses of that word, seems a little bit problematic--perhaps composer or author? Professor Philipp: The term "Creator" was taken from their documents to make it consistent, but I understand the hesitation. Your comments are well taken.

Professor Manassah, CCNY: Fred, I want to ask you, has there been any known case where there has been an abuse of the faculty. Let me just give you a scenario where there has been such a case, where somebody would be having let’s say outside research, say, sponsored research, and where everything that they do--you know they follow the rules--and then it collapses because for two or three months and all of a sudden there is a discovery with some student involvement, these kinds of things. I would follow up the question if the answer is yes--has there been such an abuse? Professor Philipp: There have been various similar problems. For instance, a faculty member could make an invention, report it to the university patent committee, and a patent deadline expires while inconclusive deliberations take place. The university committee, being made aware of this then refused to make a decision whether to pursue it or give it back to the faculty member for that person to pursue, and therefore it lapsed. That kind of thing has happened. Another situation has happened where a patent was granted, but you have to pay fees from time to time to maintain the patent, and the university did not do its due diligence to make sure that those fees were paid. That has also happened--to me, by the way. So does that answer your question? I looked this up with respect to the budget. You know they have such an office, and there they have enough money to pursue maybe two or three patents a year. It’s a serious problem. They cannot make those rules when they’re not even protecting the patent. Professor Baumrin: May I say that they never fully funded the patent office. The question came up about faculty on the so-called OTL (Office of Technology Licensing). They call here, on page three of the policy, for a nine-person committee, seven of which would be appointed by the Faculty Advisory Council to the Research Foundation. Now clearly they don’t think that’s a very important committee. If we’re in majority on a committee, you can be sure that it’s not an important committee. But in the scope of what they want for membership on the committee, out of the faculty they want people conversant with textbooks, biotechnology, software, etc. That indicates the kind of sweep. If textbooks are there, that’s half the output of this faculty. If biotech is there, that takes care of the three most productive departments in the faculty, and software is everybody else. So once the policy is instituted, we’re all of us swept up in it. It doesn’t matter whether you’re doing something sponsored by the Research Foundation in any way at all. I think what Professor London said was really quite remarkable. You would have thought that they would have given up and decided to work with the faculty, but if they insist that they don’t even have to negotiate with us, they’ve gone two steps beyond where we were when Tony and I served on the committee. Professor Picciano: Can I just follow up on something that Stefan said in terms of the strategy that Steven presented in terms of a moratorium. Well, when the moratorium was called, I think it was June of 1997, there was a very specific issue that had to with distance learning, which was very heated, very new, and people were concerned about it. This policy covers almost everything we’re doing one way or the other, which is what Stefan was just saying. I’m not sure what that moratorium would consist of, because it’s not just distance learning; it’s using a computer in any way, shape, or form. It’s writing of books, textbooks; it’s all the research in the sciences. I don’t know what we would declare a moratorium on because this policy is not just looking at one specific activity. It’s looking at the whole gamut of what we do.

Professor Speidel: Isn’t this in conflict, or couldn’t it be construed to be in conflict with multiple- position policy that already exists? Professor Philipp: It’ll be a document of the Board. It will be the Board’s own policy if this were adopted. By the way, that was one of the basic objections that I tried to get the union and successfully, to follow also, is that in fact this could be changed by the Board without consultation. Once it’s in, they have complete control of this document and they can change it in any way, regardless of multiple-position policies or not. It’s theirs. Professor Baumrin: That follows from the fact, as you will recall, from calling it a policy. Once we permit a policy to be instituted, unless there are very definite requirements for negotiation, then it’s subject to the Board’s rules, and the Board of Trustees’ rules permit policies to be changed by the Board with a single reading, and in a single month cycle. We can’t do anything. Once it becomes university policy, it’s out of our control. Unidentified: There must be some way to challenge it. Professor Baumrin: I’m sorry. You’ve been had for three decades, and you’ll be had for three more. We have not had control of any feature of our life--real control--since 1970, because we permitted the change of the governance of the individual units. When the faculty councils had curriculum power, they also had admissions power and standards power, and that was recognized. Somehow or other, by changing the nature of the governance at that point, in whatever the document was that in the heat of the day was passed, we effectively gave up control, and no court has taken that seriously since. As far as the policy on by-law change, the policy on by-law change is absolutely clear. Their own rules say for a by-law change, it must take two months. So all they do is call it a policy, and then it takes one month, and the policies are as sweeping as the by-laws, and not a single one, when Sandi had the court case, not a single one has been upheld by a court as binding on the university, that the Board is entitled to adopt whatever policy they want and to change whatever policy they want. If it’s not in a statute, they don’t have to pay any attention. Professor Philipp: If I could, I would like to add one thing. There was one question that asked what is the driving force behind this, and it’s not only institutional; it’s also personal. There was one person on the panel who really was very interested in having the university capture copyrights to software, and that person was Barbara Savitsky, who was the director of tech transfer in the university. It was her job to sell the university’s rights to intellectual property to other people outside the university, which she had done successfully at SUNY-Stonybrook. And she was on this panel and was pushing for this. After the panel ceased deliberation and the draft document came out, she left the university. Now this is a repeat of history. Nina Peyser, who was also on the panel, who was the executive director of the Research Foundation, also left the university shortly after, so it’s a reprise. Unless there are other questions, we probably have a limited amount of time. We probably have overstayed it.

Unidentified: Is it possible to modify the Board of Trustees so that they would reverse their own policy? Professor Philipp: If I could, I would.

b. Resolution on Academic Freedom

Professor Crain, City College: We have new business. Under new business, there is a resolution affirming academic freedom, and then I submitted a resolution on behalf of the Student Affairs Committee on undocumented immigrants. Could I comment on the resolution on academic freedom? I think that given the context that we’re working in, the 1940 AAUP statement is too weak to stand by itself. It is primarily a series of qualifying statements and advisories to faculty to be careful as to what they say. If we want to amend this one, I would propose to amend this one rather than to accept my more hard-hitting and specific resolution. If we would put the third "whereas" as a "resolved," emphasizing the university’s pledge to safeguard Constitutional rights and then make the AAUP the second resolved, then we could bring up as a "whereas" the clause, "In this time of national distress, when threats to academic freedom are becoming more prevalent"--that could be a "whereas." It would open it up. Those would be my amendments, to move the third "whereas" to the first "resolved" clause, because it’s a much more forceful statement than the AAUP statement.

Chair: I’m sorry. You want the third whereas to become a resolved?

Professor Crain: It would be the first resolved clause. It’s the most forceful statement in the whole resolution. The other statements are in my opinion very weak, and I would hate for these to go out as a series of warnings to faculty at this time of crisis. It seems like a beginning of McCarthyism. We don’t want to stand by a statement that warns faculty to be careful as to what they’re saying.

Chair: We have before us a resolution from the Executive Committee, and there’s a suggestion for altering it. Is there a second for the alteration?

Professor Crain: The wording could be worked out by the Executive Committee. You can move a few words around. "We reaffirm the Board of Trustees 1981 resolution, in which the university pledges diligently...." That would be the wording. The wording is not hard. Then it would be further resolved about the AAUP, if you want to keep it in.

Chair: Let us remain sort of orderly. We have a second for Bill’s alteration, which I believe is reasonably clear.

Professor Cooper, CSI: The AAUP document that’s reprinted here has been modified several times, and what I was going to suggest is that--I didn’t have the language with me, but it’s in that Red Book. I was going to suggest that a good deal of revision be undertaken and that it be pulled off the floor now and that it be redone, because the AAUP 1940 statement was modified by a 1967 Supreme Court ruling, and I quoted that 1967 ruling in my testimony to the Board, and that ruling sustains the right of any faculty member to complete free speech, particularly as a citizen, which is much more important than all the other issues. Then there was another revision. There’s a Red Book that the AAUP has published. I sent a copy of it to the office, and it has the various emendations in it. The 1940 statement was, believe it or not, in its time, a great leap, and 187 organizations signed in on it. Most of them who have not signed in are still in the South, and there are plenty that haven’t. I would be very reluctant to reject an AAUP statement--it’s one of our last hopes in this country--and particularly since the president of the organization is going to be our speaker. But the presentation of it could be revised to include 1940 and subsequent additions and changes to it. But I don’t think that frankly we can do this from the floor. It strikes me that this is not an opportune moment, and it is awfully late.

Professor Gallagher, LaGuardia: Just this small point because it appears this is going back to committee. I was disturbed in the original "therefore, be it resolved" by this very wishy-washy phrasing. "The UFS, along with the Council of Faculty Governance Leaders wishes to remind the entire university." I think we need to be more forceful. Just a hint in terms of revising--avoid mealy-mouthed phrasing like that. Let’s just say it very strongly.

Chair: There is a motion on the floor. The motion is to amend.

Unidentified: And then there’s a motion to resubmit to committee--does that supersede? Chair: It does supersede. I don’t think he quite made that motion. Are you making that motion?

Prof. Gallagher: I would recommend sending it back to committee, backing up Bill’s revision.

Chair: The motion is to resubmit to committee. Is there a second to this?

The resolution was resubmitted to committee. Cecelia McCall then called quorum and the meeting was adjourned.