UA Codes and Judicial Committee

Current practice under the present code

The present code covers the conduct of everyone in the campus community. Complaints about faculty or staff involving work related misconduct may be made to the appropriate department head, dean, or administrator. Misconduct of staff or faculty not related to their job may be handled by the Judicial Administration. Student misconduct may also be handled by the Judicial Administrator. Presently the code pertains to actions that occur on the Cornell University campus. “Exceptionally grave misconduct” provision may be invoked by President to cover off-campus activities.

Proposed practice described in Krause Report

Code sets forth standards of behavior that apply to all members of the Cornell community. Student matters handled in the “Student Disciplinary System”. Faculty referred to department head or dean; employees referred to supervisor or HR representative. Office of Student Conduct has discretion to consider off campus allegations if misconduct poses a direct and substantial threat to University’s educational mission or to the health, safety, or property of the University or its members.

The wording “direct and substantial threat to University’s educational mission…” is way too loose and open for interpertation. Pretty much any miscoduct could be put under that description. This provides almost absolute power over the off-campus activities to the Office of Student Conduct, which should not be the case, considering that there are already other law-enforcing agencies in place to deal with such circumstances. The university need not get involved unless the action is deemed extreme by a highly ranked university official such as the president. It is true that the university must react to extreme cases of misconduct, but this power should NOT be left to the Office of Student Conduct. If the conduct is in fact exterme, the presindent will be involved anyway, so why not leave this power to him/her? For that reason the “off-campus” power should be limited to the original “Exceptionally grave misconduct” clause. Only the person in highest authority, such as the president should be invoked for the university to act on something that happend off-campus.

The “direct and substantial threat” clause also greatly concerns me: I agree that the point at which the University considers off campus allegations needs to be more unambiguously defined.

While much attention is given in this report to changes in the handling of student violations of the Campus Code of Conduct, my greatest concern is in regard to a proposed change in handling of violations by employees. I strongly agree that the same Code of Conduct should apply to all persons affiliated with the University. I also feel that standards of compliance and consequences for non-compliance should be at least as strict for employees as for students. After all, we are not only presumably fully responsible and self determining, we are also expected on many levels to model appropriate behavior.

I am involved in referring violations of the Campus Code of Conduct as part of my work for Transportation & Mail Services. Our cases are generally more along the lines of “theft of services” than behavioral misconduct. Very occasionally, we have a case of an employee charged with harassment, but this is generally addressed through the supervisor or other department personnel, as appropriate. Nearly all of our employee cases are related to parking permits, bus passes or parking tickets, and involve charges of forgery of University documents, misuse of University property, failure to comply with a University official, and/or providing false information with intent to deceive. Virtually all of these cases are in the non-work category. In fact, we are very careful to keep each case confidential and to ensure that personal actions related to a violation do not affect the employee’s work records or status.

While faculty & staff cases may be only 1% and 2% percent of the total Code of Conduct caseload, they represent a greater portion of the cases I refer. Of the nearly 500 cases we have referred over the past fifteen years, our records have shown that almost 25% are cases in which the accused is a University employee, averaging 7.8 cases and varying from three to fifteen cases per year. In the past couple years, employee cases have reached 33% of our total. These cases have spanned the spectrum of the employee population from temporary or casual laborers to tenured faculty to administrators. We have had cases where the actual value of services fraudulently obtained has exceeded $1000.

While I understand that the volume of such referrals has been relatively small, some of the cases we refer are not trivial. The existing system allows referral to a Judicial Administrator who can pursue each case in a manner consistent with comparable cases, and in balance with resolution of the range of cases which occur.

The Krause Report recommends that “faculty be referred to department head or dean; employees referred to supervisor or HR representative”. I believe such a change would undermine our chances of consistent, fair and equitable discipline for employee violations. While compliance with the Code of Conduct is a condition of employment with the University, I believe that a violation which involves a personal choice of action unrelated to job functions, or to behavioral expectations for an agent of the University, should be kept confidential and should not affect the employee’s relationship with the supervisor.

When I refer a case to the Judicial Administrator, I do so because I believe that a violation of the Code has occurred. However, I have neither the responsibility nor the authority to determine whether a violation has actually occurred or what the consequences should be. I simply provide all of the relevant facts I can gather, and the Judicial Administrator’s investigation follows.

How many people in supervisory or human resource positions across the University must be trained to deal with an accusation of a violation on the part of an employee: to judge whether a violation has actually occurred and what the appropriate level of discipline should be, and to understand the confidentiality issues involved. Would the responsible department personnel in the proposed system have the knowledge or authority necessary to hold the violator responsible for restitution to the University? How would handling of Code of Conduct violations be handled equitably for an employee in a bargaining unit versus an endowed academic position or an extension associate?

As a referrer, how am I to be certain who the appropriate department personnel would be? With sensitivity to confidentiality concerns, and with respect for those whom I must accuse, but who are not yet “convicted”, I would find it entirely inappropriate to phone an administrative assistant to ask, “To whom should I address a possible violation of the Campus Code of Conduct by S________?”

For illustration, I would like to describe a very different but parallel problem which T&MS attempted to address in a similar manner. A few years ago, in an effort to seek payment from employees who had long standing debts to the University of many hundreds of dollars in the form of outstanding fines, our department explored the possibility of contacting the employee’s supervisor or department head, to address the issue. It was quickly found that this was not a desirable route to resolving the problem, in light of both confidentiality issues and of extreme variation in the supervisor’s response to the situation. I am concerned that attempts to resolve an accusation of non-work-related violations of the Code of Conduct by similar means would be at least as problematic.

While we have rarely dealt with cases involving violence, we do refer cases that are not trivial, as I noted above. If the volume of employee Code violations does not justify a separate system from the proposed process for student violations, are there other options besides referral to supervisory personnel? Perhaps it would be more appropriate to pursue our “theft of services” type of cases through civil courts. I do not have the ability to judge whether that is a feasible route.

I will not go into the factors that, I believe, may be driving a possible increase in the proportion of employees choosing non-work related actions that are not consistent with the Code of Conduct, but these are likely to be exacerbated rather than mitigated in the foreseeable future. Therefore, I am dubious about a change that I feel would be likely to decrease our ability to respond effectively.

Ac tions by faculty and staff off-campus, unrelated to work and outside of working hours, should be dealt with only by the appropriate civil authority. These are adults, and this is the sphere of private life. Staff in particular can’t have tenure and are rarely in positions where a good argument can be made that they’re seen as representing the University.

The campus code and judicial process should be different for faculty/staff and students. Students should be treated with more deference because by and large they are young, and the young tend to make more errors in judgement and therefore should be treated with more leniency. However, in the case of any serious crime, i.e., harming others physically or mentally abusing them or theft, all should be dealt with equally.

Off-campus misconduct should be dealt with off-campus unless it is to such a severity that it jeopardizes the welfare of others on campus or denigrates the image of Cornell iteself.

The Campus Code of Conduct should set a standard for the campus community and provide guidance for behaviors expected of Cornell’s faculty, students, and staff. Conduct by faculty and staff in a non-work context may be quite different and have different expectations depending on the position, environment, or situation and should not be dictated by the University. That being said, we should not be shielded by not being at work. A reasonable person will know that egregious behavior will impact their work and home environment. Because of the entirely different affialiations that faculty, staff, and students have to the University it is crucial that the judicial system be separately maintained. A system that would base disciplinary actions on ‘preponderance’ rather than ‘clear and convincing’ evidence without sufficient guidance on what to weight and how to weight decisions does not seem to provide a clear, fair, and consistent evaluation.

A few people have already commented on this, but bears repetition: “direct and substantial threat” is ambiguous. In general, I don’t like this particular change because it is too open for loose interpretation, and as far as I can tell, the current system already has something in place for extraordinarily serious off-campus actions to be dealt with. At the bare minimum, the new guidelines (if the changes are implemented) should clearly define what constitutes a “direct and substantial threat”, or at least give some examples to reduce ambiguity in that term. This will help later readers so that this rule will only be invoked under circumstances that it was originally intended for, and not for less serious breaches. Preferably, this definition should be given BEFORE this change is decided on, because it will likely affect whether people’s decisions on whether to make the change or not.

What are the responsibilities of a Cornell department to the University to report a violation of a section of campus conduct? I imagine that there may be cases when a department would want to handle discipline itself rather than referring the matter up the line to the JA. If the University is given the authority to report off-campus violations of conduct to a department, then does this also imply an obligation for a department or, other University entity, to notify the University of this as well?

How many crimes involving Cornellians take place off campus—but near the campus? If a “crime” takes place off campus, but near the campus, I wonder if it is possible for the Ithaca police, the Sheriff’s Dept, the Cornell Police, the JA and the Cornellians involved (and/or his/her attorney) to negotiate who has jurisdiction of a case by case basis?

I agree with Kate Mink’s comments above regarding off-campus conduct. Leave it to the off-campus civil authorities to deal with as appropriate. I fear the potential injustice to an employee, especially a staff member without tenure or a golden parachute, should “direct and substantial threat” be too loosely interpreted.

The report recommends that the code apply to all members of the community including faculty and staff, but that “all cases of faculty or staff misconduct (whether work related or not) be referred to the department head, dean, supervisor, or other human resources representative as appropriate”. I do agree with this concept.

The concept of a ‘direct and substantial threat to University’s educational mission’ is far too vague, and could potentially be dangerously over-reaching. I don’t think it’s too much to ask for the school do delineate specifically the contexts in which it is going to hold students responsible for conduct outside of the university.

Not that I’d favor a total ban on extending jurisdiction to cover events that take place off campus. I would suggest that the code be specifically written to allow for jurisdiction over:

1. Conduct that takes place within the greater Cornell community. (E.g., a party in Collegetown with many Cornell students.)

2. Conduct that takes place at university-sanctioned events. (An away sporting event.)

3. Conduct that is done when an individual is overtly acting as a representative of the school.

4. Criminal conduct of such a nature that it creates a threatening environment for other students at school. (Violent offenses, sex offenses, hate crimes)

5. Conduct which, although done off campus, is done with the intent or substantial likelihood of intimidating or threatening students on campus. (E.g., a web page with threatening comments towards a minority group.)

Wait, do alumni count as members of the Cornell community? Does this mean I can get JA’d all the way out in Boston if I were to give alcohol to a 20 year old currently attending Cornell? And here I thought I had finally gotten away from the facists in the administration. Whatever, just another thing to chalk up on my list of reasons why I am never donating to Cornell.

To whom and where are two separate issues. The fundamental issue underlying the present Code is that all of us are part of a community subject to the same expectations of behavior and judged in the same way. The administration’s proposal is to create multiple different communities. If the process of judgment and punishment is different for students, employees, faculty and central administration and is in the hands of countless numbers of deans and supervisors, we simply do not have a community with a common set of expectations. I vote to retain a common process for everyone, which is the basis of the current system.

The “where” issue is more difficult for me. There are events that are off-campus that are connected to the educational and research activities of the university that should be covered. Also, misbehavior can start off-campus and be brought to campus, or the reverse. These are the kinds of issues that the current process, through CJC oversight, can deal with. That is, we do not need to adopt an entirely new process that removes community oversight and involvement in order to address issues such as this one.

I would like to add my second to Kate Mink’s comment: while I work off campus in a situation where the argument can be readily made that I am representing the University (Alumni Affairs and Development on the West Coast) in most situations staff are not in these positions.

As noted by Jesse Gillespie and many others above, “the concept of a ‘direct and substantial threat to University’s educational mission’ is far too vague, and could potentially be dangerously over-reaching.” Unfortunately, the experience of such administrative “overreaching” is not without precedent at other institutions. As such, the present code seems far more preferable.

Status of Graduate and Professional Students under the Code:

In keeping with the Krause Report’s emphasis on the educational mission of the Code, graduate and professional students—who are supposedly being “educated” to become faculty members one day—should have the same status of faculty under any revisions made to the current Code.

Beyond that, however, the Krause Report is not too specific about who counts as “Faculty”: does “faculty” include non-tenure track faculty such as adjuncts, postdocs, temporary lecturers, visiting scholars, etc.? Wouldn’t it make the most sense to drop the vague and/or exclusive “faculty” and replace it with “anyone who currently holds, or has held, a teaching position (of any rank).”

That said, I’m quite sympathetic with the practical problems expressed in other comments (maybe in the “community” section): how many department heads will need to be trained and trusted to adjudicate, ad hoc, violations of the Code that fall under their jurisdiction? What protections would be put in place to ensure the fairness of those processes. Maybe, then, the code should apply equally to everyone, in order to have as “above-ground” a disciplinary process as possible.

This is an issue of which I can see both sides.

On the one hand, we don’t want the long arm of Cornell reaching out into all sorts of Cornellians’ business out in the world. (And I highly doubt it could possibly be enforced against alumni off-campus.)

On the other hand, M. Williams and Jesse Gillespie have listed some circumstances under which we would especially welcome Cornell’s involvement in certain off-campus matters. Where someone is explicitly (or clearly though implicily) representing Cornell, among other possibilities, Cornell and Cornellians in general have a stake in what’s going on, and I am sure people would look to Cornell to redress the situation.

I might add that I think Cornellians - especially students - may welcome Cornell’s intervention, if it would replace possible criminal proceedings. Keep in mind that unlike a university disciplinary record, a criminal record is (1) public information, (2) permanent and (3) a frequent focus of employment and school applications and background checks.

Students (for the most part) are legally adults, but their being students (especially full-time students) implies that they are still learning and growing. They would probably make out much better in the long run with an educational sanction from Cornell than a fine or even a few nights or more in jail.

Needless to say, in such situations the issues of deferring disciplinary hearings until criminal or civil charges are resolved, together with the right to remain silent and attorneys as advisors, would come into play. So, whether or not, and if so how, Cornell intervenes off-campus when civil or criminal charges are possible depends on how we resolve the above issues, just as much as with on-campus incidents.

With regard to faculty and staff, the principle should still hold for them but more weakly. Cornell may also have an interest in their off-campus behavior, but in cases where criminal charges may be brought Cornell *may* in some cases prefer to drop disciplinary charges if the faculty or staff member agrees to submit to the outside charges. Again, this depends on how we have resolved the other issues I named above.

I think that whatever is done regarding the Code of Conduct, a faculty or staff member could legitimately be subject both to the Code of Conduct and to rules regarding his/her own workplace. The latter would be handled much as workplace accusations are handled pretty much everywhere else, by the accused’s superiors and perhaps other people, such as HR and any appropriate union people.

Indeed, even if faculty and staff were to continue to be subject to university proceedings for violations of the Code of Conduct, I see no reason why their superiors should not be kept apprised of the process, let alone the results.

Finally, in my opinion various superiors’ adjudicating individual violations of the Code of Conduct is no more inconsistent than particular hearing board panels doing so.