Letter to Peter Likins, Ph.D., President of the University of Arizona
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ROBERT K. WREDE
CLAUDE I. PARKER (1871-1952) May 29, 1998
Peter Likins, Ph.D., President Re: Notice of Appeal from July 15, 1998, Termination of Regents Professor Marguerite M.B. Kay, M.D. Dear President Likins: This written Notice of Appeal from your July 15, 1998, letter purporting to terminate Dr. Marguerite Kay's employment as a Regents Professor is submitted pursuant to 6-201 of the Arizona Board of Regents Policy Manual in the event the on-going efforts to amicably resolve the dispute between Dr. Kay and the University do not bear fruit. This notice is not intended to reflect any diminution in Dr. Kay's desire to resolve the dispute amicably and in a fashion which best serves the interests of the University, Dr. Kay, and the scientific community. This Notice of Appeal is provided in addition to a notice sent by Dr. Kay to the Arizona Board of Regents ("ABOR") on July 21, 1998, in an effort to preserve all her appellate rights, of which I believe you already have a copy. This Notice is intended to assert Dr. Kay's rights both to conciliation/ mediation of her dismissal and to a formal hearing before a CAFT constituted panel including one or more members of the public or alumni. As I believe you know, sub-section J.1.a of ABOR Policy 6-201 expressly provides that: "Tenured faculty members shall not be dismissed or suspended without pay except for just cause. Such dismissal or suspension may take effect only following an opportunity for the faculty member to utilize the conciliation/mediation and hearing procedures as [sic] prescribed in sections K.3 and K.4 below." ABOR Policy Manual 6-201.J.1.a. (Rev. 10/97, emphasis added). Unfortunately, the reference in sub-section J.1.a to sections K.3 and K.4 does not seem to make sense, since sections K.3 and K.4 relate only to job losses resulting from ABOR-approved reorganizations for budgetary reasons, which is clearly not the case here. Despite this apparent drafting error, a sensible reading of sections K.3 and K.4, L.3 and L.4 of 6-201, makes clear that the conciliation/mediation and hearing procedures referred to in subsection J.1.a., and applicable to discharge for cause, are those set forth in sections L.3 and L.4, not K.3 and K.4. As we read subsection J.1.a. and L.3 and L.4, in pari materia, before your July 15 termination of Dr. Kay "may take effect," she has a right to avail herself of both the conciliation/mediation procedures prescribed in L.3 and the hearing procedures prescribed in L.4, which expressly provide for a hearing before a committee including "one or more community representatives or alumni." Consequently, this Notice of Appeal expressly requests that a conciliation committee comprised of one or more full-time faculty members elected for the purpose by the academic senate or faculty, as a whole, be constituted to mediate Dr. Kay's dismissal, as required by L.3. In the alternative, Dr. Kay would be amenable to the appointment of a mutually acceptable, competent, neutral outsider to mediate the matter pursuant to L.3.c. For this purpose, we propose Bruce E. Meyerson, of Steptoe & Johnson in Phoenix, or Lawrence H. Fleishman, of Fleischman, Minkes & Lopez, in Tucson, both of whom we believe to be highly experienced in the mediation/conciliation process and both of whom are, in our view, both well-qualified and totally neutral. This Notice also requests commencement of the hearing process provided for in L.4, to include constitution by CAFT chairman of an appropriate hearing panel comprised, in part, of "one or more community representatives or alumni." The "written detailed statement" of Dr. Kay's position required by L.4.a. is enclosed in the form of the following documents, which I have carefully selected from the voluminous materials we prepared for and utilized both in the course of the CAFT hearing and our subsequent discussions and correspondence respecting this unfortunate dispute: 1. Closing Memorandum of Marguerite M.B. Kay, M.D., In the Matter of the Hearing Before the University of Arizona Committee on Academic Freedom and Tenure, April 10, 1998 (Enclosed at Tab A); 2. Appendix of Selected Exhibits in Support of Closing Memorandum of Marguerite M.B. Kay, M.D., In the Matter of the Hearing Before the University of Arizona Committee on Academic Freedom and Tenure, April 10, 1998 (Enclosed at Tab B); 3. Reply Memorandum of Marguerite M.B. Kay, M.D., In the Matter of the Hearing Before the University of Arizona Committee on Academic Freedom and Tenure, April 10, 1998, dated April 17, 1998 (Enclosed at Tab C); 4. Letter from Robert K. Wrede to President Peter Likins, May 29, 1998, (Enclosed at Tab D); and, 5. Letter from Robert K. Wrede to President Peter Likins, July 9, 1998, plus enclosures (Enclosed at Tab E). Please note that, by reason of their considerable volume, the materials listed above will not be sent by facsimile. Rather, they will be sent by Certified Mail. In very summary form, it is our contention that: 1. The procedures followed in the course of the UCEC and CAFT inquiries and hearings respecting the allegations against Dr. Kay so deviated from applicable regulatory, statutory and Constitutional requirements, to include application of an improperly lenient burden of proof, as to deny Dr. Kay administrative due process (See, specifically, the materials at Tab D, hereto, and Tabs 2, 3, and 4 of the Appendix listed in [paragraph] 2, above (Tab B hereto)); and 2. No credible evidence has been adduced in the lengthy course of the UCEC and CAFT proceedings, or thereafter, that Dr. Kay ever engaged in "scientific" or any other kind of "misconduct," no matter what definition is used. In fact, all competent, credible evidence is to the contrary. We respectfully request your prompt acknowledgment that the conciliation/mediation and hearing processes to which Dr. Kay is entitled have been initiated and that, contrary to the statement in your July 15 letter that Dr. Kay's employment was terminated effective Friday, July 17, her dismissal will not take effect until those procedures have been fully and finally concluded, pursuant to ABOR Policy Manual 6-201 J.1.a. We also solicit your comments respecting our suggestion that a mutually acceptable outsider be appointed to mediate this matter pursuant to L.3.c. of the ABOR Policy Manual. By copy of this letter, as required by L.4.c. of the Policy Manual, we are providing the Chairman of CAFT with a copy of your July 15 letter terminating Dr. Kay's employment and the documents comprising our position statement. Very truly yours,
Robert K. Wrede, of |
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