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Report on Rep. Fischer’s Contingent Faculty Bill (HB 12-1144)

February 19, 2012

by Ray Hogler, Colorado AAUP Vice-President for Legislative Matters

On February 16, 2012, the Colorado House Committee on State, Veterans, and Military Affairs voted favorably on Rep. Randy Fischer’s bill to make contracts between contingent faculty and higher education institutions legally enforceable agreements. Because of the peculiar nature of Colorado statutes, such contracts were considered to be “employment at will,” regardless of whether they were for a fixed period of time. Rep. Fischer’s bill, HB 12-1144, simply provided that institutions could enter into contracts that would be binding according to their terms.

By way of background, the Colorado General Assembly a number of years ago tried to prevent colleges and universities from paying unearned compensation to a public employee who was fired before his contract expired. The lawmakers bowed to the reality of athletic programs and exempted a specific number of contracts from the statute. As a result, for example, when Colorado State recently fired its football coach and the athletic director, it became liable for $1.2 million in unpaid wages to these two individuals (the claims were satisfied with “private” money).

The situation for contingents is much different than the scenario envisioned by lawmakers. Such teachers are typically hired for a semester or a year of work, and they are different than at will employees entering into an indefinite employment relationship. The contingents expect to work for the designated period, and the administration expects them to fulfill their promises. In such cases, the “employment at will” rule makes no sense whatsoever. Randy Fischer’s bill merely restored some measure of rationality to the occupation of non-tenure track teaching.

At the committee hearing on Feb. 15, faculty from CSU, CU-Boulder, and CU-Colorado Springs supported the bill. Ray Hogler of CSU testified on behalf of the state AAUP about why the bill was necessary to provide a degree of security for contingents and to eliminate the contradictory legal elements in their contracts. Suzanne Hudson, Mary Long, Doug Duncan, and Don Eron of CU-Boulder all talked about their experiences as contingents. All are long-term teachers who play an essential role in carrying out the educational mission at CU, yet they said they have no assurances they would be hired in the future. Suzanne Cook of CU-CS is a contingent who is active in faculty affairs. She said she had spoken with various administrators at the institution and believed that they supported the bill. Rep. Mark Waller (R-El Paso) questioned whether Dr. Cook spoke for the institution, and she said she did not but that she had been informed by email that top administrators were in favor of the bill.

After the faculty witnesses spoke, Dr. Vicki Golich, Provost at Metro State, testified that she and the institution wanted HB 12-1144 to be enacted. She explained that binding contracts were important to her and the large number of non-tenure track faculty at Metro. A representative of the CU system then testified about the school’s official position, which was “monitoring with concerns,” which is apparently political-speak for “we won’t publicly oppose it.”

Rep. Fischer accepted several friendly amendments. One was a concession to CU and provided that nothing in the bill required an institution to include any specific terms in an agreement with a contingent. Rep. Waller offered an amendment deleting certain language about contracts being terminable on condition of financial exigency. His point was that if the parties were at liberty to write the contracts they wanted, they could include a clause on inability to pay. Rep. Fischer agreed to the amendment.

The final vote was 5-4 to send to the House with a favorable recommendation. All the Democrats voted in favor, and Rep. Waller provided the one vote needed from the Republicans. He may have decided based on information that CU-CS, his constituent, indeed wanted the legislation, or he may have come to realize that freedom of contract is the bedrock principle of free markets in the panoply of conservative thought. In any case, his support tipped the balance.

The next step is a vote by the full House. If you want to help the cause, contact your representative and any administrator you think might be friendly to the legislation. The more public support we can generate, including that of higher education officials, the better our chances of victory.

Contact information for your representative and others may be found at the Colorado General Assembly homepage:

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