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So Sue Me

July 6, 2009

Contracts be damned. Kenneth A. Yowell, president of Edison Community College, in Ohio, believes he need not follow a union contract in deciding whose jobs to eliminate. Now, amid protest from faculty who already disapprove of his leadership, he is picking a fight with the local union to try to prove that he is well within his rights.

Last month, Yowell, who has been at Edison’s helm for 22 years, ignited a firestorm among faculty when he laid off Stephen D. Marlowe, a well-liked, full-time English professor in his first year of a four-year rollover contract. Though more than 60 faculty members and administrators were informed, prior to approval of Edison’s budget last month, that they could possibly lose their jobs because of the institution’s financial standing, Marlowe was the only employee left on the chopping block once the numbers were finally crunched.

Yowell’s rationale for laying off Marlowe seemed legitimate enough: he alleged that, as the English department was “well-staffed” and the math department was “understaffed,” it made more sense to eliminate Marlowe’s full-time English position and create another full-time mathematics position to correct the staffing imbalance. Marlowe, in Yowell’s argument, was only singled out for layoff because he was the “least-senior faculty member” in his department.

There is one big problem with that logic: it has no relation to Edison's faculty contract. Though Edison does not have a tenure system, a large number of its full-time faculty members are on union-negotiated continuing contracts that afford them tenure-like protections. Marlowe’s contract, per the most recent collective bargaining agreement, stipulates that he can only be laid off under three specific circumstances: financial exigency, retrenchment or program elimination.

None of these reasons were cited for Marlowe’s layoff, and Yowell is one of the first to admit it. Prior to the layoff, Yowell even spoke to Larry Dragosavac, president of the Edison State Education Association, the local Ohio Education Association-affiliated union, to tell him that he planned to go ahead with the layoff despite the obvious contract violation.

“The language of the contract doesn’t cover this,” said Yowell, of his layoff of Marlowe in an interview. “If those reasons [stipulated on the contract for layoff] existed, then I would do it for those reasons. But, my hands are not tied in moving that budget slot and rendering Mr. Marlowe’s spot obsolete. I am free to do that. I am doing this for the health of the institution. You don’t just do this whimsically. You have to have a reason.”

Stunned by Yowell’s decision to inform the union – not ask for its permission – of this move, Dragosavac has filed a formal grievance on behalf of Marlowe, calling the layoff, “undeniably, a contract violation.”

On the academic side, Cathy Essinger, English department chair, and Nathan Adkins, math department chair, both complained that they were not consulted about the shuffle. Though both say that their departments are already understaffed – particularly troublesome at a time when Edison’s summer enrollment is 30 percent greater than last year's – they argue that the “obvious solution” is to hire more full-time math faculty instead of shortchanging both high-demand general education programs with a decision that they believe will inevitably lead to the hiring of more adjuncts.

“We weren’t given a rationale for this move, and the budget wasn’t talked about,” Adkins said, noting even the math department’s puzzled reaction. “So many things are said and taken back, you have no idea what holds water around here anymore.”

Yowell, however, remains unrepentant about his lack of transparency.

“I don’t have to contact them” when making personnel decisions, said Yowell of his department chairs . “I do the staffing. I make the administrative decisions.”

To union leadership, the department chairs and Marlowe himself, the only thing worse than Yowell’s admittance of contract violation is their belief that the layoff was retaliatory in nature.

Marlowe, a self-professed stern critic of Yowell, was especially vocal following Yowell’s decision to inform a number of faculty members and administrators, many not contract-protected as he was, that they might lose their jobs. The notices provoked an overwhelming vote of no confidence in Yowell's leadership by faculty, and stirred Marlowe, editor of the union news blog, to write many editorial posts slamming Yowell. In one entry, Marlowe writes, "Our movement is about saving the college from a maniacal cadre who will destroy it rather than realize their time at its helm is long past." Though Marlowe believes he was doing a service to his colleagues through his writing, he also believes his critical stance cost him his job.

“Those of us who have job protection felt we had the responsibility to speak out for those who didn’t,” Marlowe said. “This was a last-ditch power play. Everyone at the college has been gritting their teeth waiting for this fellow to retire, just wondering how much damage he could do with those years left. And, if anything speaks to managerial dysfunction, it’s firing everybody and then hiring them all back. Yowell took our union newspaper’s tongue-in-cheek style personally, and he used it as the pretext to fire me. When I got my notice, I thought, ‘This is crazy.’ It’s hard to look at this and not see it as a personal attack. It’s pretty serious and pretty damn vindictive.“

But this is not just the frustration of a single employee who feels that he has been wronged. Yet another recent personnel issue has galvanized criticism of Yowell -- from professors like Marlowe and department heads like Adkins as well as union leaders like Dragosavac and at least one recently retired, highly placed administrator.

Further Suppressing Dissent

Yowell vehemently denies that his layoff of Marlowe was retaliatory, but he has no problem admitting his personal reasons for refusing to rehire Quincy Essinger, an adjunct humanities professor and son of the English department chair.

Like Marlowe, Essinger was an outspoken critic of Yowell’s leadership, especially the mass non-renewal notice sent to a number of employees prior to the finalization of Edison’s budget. Still, though Yowell openly admits that he does not like Essinger’s “attitude,” he cited one specific action in his rationale for not bringing back Essinger, an adjunct in his first year who has earned excellent student evaluations and the respect of his supervisors.

Essinger videotaped a contentious Edison board meeting in April, following the faculty’s no-confidence vote in Yowell, so that the many interested faculty members who could not attend the meeting could see the proceedings and hear Yowell's and the board’s reactions. At the start of the meeting, he was asked by the board chair to shut off the camera, although there are no statutes in Ohio that block the videotaping of public meetings, and many are routinely videotaped by news organizations and other parties. When Essinger declined to shut off the camera, he thought he was doing his colleagues a service, but it may have been his undoing at Edison.

“Mr. Essinger disrespected the board chair in the process,” said Yowell of Essinger’s refusal to shut off the video camera. “He shouldn’t have done that. His bad behavior is being punished. I told [his supervisors] that I did not what him reappointed for that reason. He expressed a bad attitude, and I’m not going to put up with that. “

Yowell said this was only one of the reasons that he had for refusing to rehire Essinger, but he would not mention any of the others. Yowell’s frankness stands in stark contrast to the official “no reason” that Essinger received from his supervisors.

“I made an inquiry about it,” said Essinger of his employment status, who was unaware of Yowell’s comments citing his videotaping of the board meeting as a reason. “I have a positive dean review, a positive student evaluation, and I’ve even been working with my staffing coordinators to set up fall courses to teach. Still, I’ve been told by my supervisors, ‘I’ve been told that I’m not allowed to staff you.’ I thought, ‘That’s a bit odd’ and approached my dean, but she only told me again, ‘I’ve been told I’m not allowed to staff you.’ ”

Michael Fleishman, Essinger’s staffing coordinator and graphic design professor, said he was not given any reason why he was not to rehire Essinger and could understand his frustration about the lack of transparency in the process.

“My dealings with him have been nothing but excellent,” Fleishman said. “I’d rehire him in a minute. Actually, I’d already made the call asking him if he’d be interested in coming back. There’s no evidence that there were any performance issues with him. If you suspect that he was let go because of he happened to be behind that camera, then are all of our jobs suspect because we were at that meeting?”

Adjunct professors in Ohio are considered “at-will” employees. As such, institutions do not have to offer any formal reasons for not rehiring them.

“As an at-will employee, I can be given a good reason, a bad reason or no reason but not an illegal reason,” Essinger countered. “And, that seems like the case here.”

Yowell, however, defends his rationale.

“I’m perfectly within my rights not to appoint him,” Yowell said. “It’s a simple reason, and that’s just not the attitude I want. This isn’t just the case of one adjunct. If they demonstrate offensive behavior, they likely won’t be hired either.”

One of Yowell’s own senior administrators, however, disagrees with his logic even though she helped enforce his decision.

Mindy McNutt, former Edison vice president for education, was charged with informing Essinger through his supervisors that he was not to be rehired. Though McNutt argued that she was just following orders from Yowell, she has since expressed regret for the move and even retired because of her discomfort with the situation.

“[Yowell] told me that [Essinger] had been disrespectful,” McNutt said. “At the point he asked me to do it, I did not have a lot of information about [Essinger] as an instructor. Still, I questioned [Yowell] about this kind of decision and his rationale for not rehiring. “

McNutt’s questioning, however, did not stop her from carrying out Yowell’s orders.

“I don’t think it’s right,” McNutt said of the decision. “I mean, he’s got First Amendment rights. I was requested to do something by my president, which I carried out, that I didn’t agree with. That was not my decision. I was the voice of [Yowell] carrying out what he asked.”

Looking back, McNutt considers the decision not to rehire Essinger the proverbial “last straw” in her time at Edison. She would not, however, explain what other events moved her to retire only two years into her administrative role.

“I was in an environment where I had to make decisions I was not comfortable with,” McNutt said. “I feel very bad about it. But, people don’t understand what I have in my head and what I’m not willing to do. There were so many lines which were crossed. And the seriousness of those things is such that I don’t feel comfortable talking about them.”

Moving Forward

According to the formal grievance process, Yowell has until Wednesday to agree to a meeting with Marlowe and the union to explain his position. The union wants Marlowe reinstated. If this does not happen, or the two sides do not agree to another solution, the case will go to the arbitration stage, and an outside arbitrator will be brought in to rule on the decision.

Essinger is waiting for Edison’s human resources officer to give a formal reason for his not being rehired. In the event that he believes the reason is illegal, Essinger said he is considering various legal options.

Brad Reed, chair of Edison’s Academic Senate, said he is unsure how these conflicts will resolve during the summer, while most faculty and administrators are away, or if the senate will get involved at all. Still, he said these two personnel fights are characteristic of a larger problem at Edison.

“To essentially blackball Quincy Essinger because he was at a board meeting with a camera flies in the face of open meetings and is just poor management,” Reed said. “Still, to focus on these situations ignores 90 percent of the iceberg. It’s been a challenge.”

 

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