From: stuart@Sunburn.Stanford.EDU (Stuart Reges) Newsgroups: talk.politics.drugs Subject: text of my grievance Date: 14 Jun 91 23:37:34 GMT Organization: Computer Science Department, Stanford University. Originator: stuart@Sunburn.Stanford.EDU GRIEVANCE FROM STUART REGES --------------------------- In this grievance I outline the reasons why I believe that the University should reassess its decision in my case and consider taking the following steps: - The University should clarify a number of questions raised by my case. The issues that I raise need to be addressed, if for no other reason than to clarify the policy for other University employees. - The University should make available to me the $4,360 in unrestricted funds that have been frozen since I was suspended and should make available to me as unrestricted funds at least half of the $806 that would have been paid to my account for teaching CS109B this quarter. - The University should reinstate me as a Senior Lecturer. - Barring my reinstatement, the University should pay me an additional year's salary as severance pay to fulfill its contractual obligations to me. Handling of my case ------------------- The University has handled my case badly, frequently violating its own written operating procedures. In particular: - Stanford adopted a new policy on controlled substances in March of 1989, but this policy was never communicated to me or my fellow staff members (I didn't even become aware of it until December of 1990), even though it included sanctions up to and including termination. - The Stanford Daily reported in late September of 1990 that a new policy on alcohol and controlled substances was to take effect October 1st. The Daily article identified the author as Susan Hoerger. I called Ms. Hoerger's office to obtain a copy of the policy, but her secretary told me that she wasn't willing to send it out to "everyone at the University," and that I would be able to get a copy from my department chairman. My department chairman was not given a copy of the policy either. Despite my repeated attempts to see the exact wording of the policy, I was not able to do so until November 14th when it was published in The Stanford Daily. It is interesting to note that I had already published my Stanford Daily articles with my backpack claims by then and, as far as anyone knows, I have not carried illegal drugs in my backpack since November 14th. - Susan Hoerger has been quoted as saying that my original Daily articles in which I claimed that I had carried and would continue to carry illegal drugs in my backpack while on campus prompted discussion but no action in November because these claims appeared "rhetorical." In terms of procedure, it is reprehensible that University officials would discuss my case and not contact me to inform me of their concern, especially if they had any doubt as to whether my claims were to be taken seriously or rhetorically. I find it incomprehensible that no University official took the time to make a phone call or write a memo to me back in November if identical claims brought to the attention of administrators five months later could generate such alarm that the University would bypass its own procedures and eventually fire me for the claims. - On 4/19/91 Ken Down informed me that I had been placed on paid administrative leave pending an investigation. According to Guide Memo 22.8, subsection 5c, "Supervisors should use an investigatory suspension only in a situation in which the investigation cannot be conducted reasonably while the employee remains on the job." There is no reason that I couldn't have gone on teaching my classes and advising students while the investigation was conducted. Ken was quoted in the press as saying that the investigation took up too much of my time, but that is not true. My meetings with Ken took no more than 4 hours total over a period of five days, and would not have interfered with my teaching duties. I spent some time seeking advice from lawyers, but this was a matter of waiting for a response which took several days to obtain, not a matter of actively talking to lawyers for many hours. I repeatedly made my immediate supervisors aware that I was able to perform my duties and that I wanted to perform my duties, but their numerous requests to the office of Dean Gibbons that I be reinstated pending a decision were uniformly denied. - On 4/19/91 the University News Service issued a press release announcing my suspension and the charges against me to the entire world. I am not familiar with standard procedure relative to such suspensions, but I find it hard to believe that it is usual to proactively announce them. I had answered questions from a Washington Post reporter earlier that day, but I had not actively sought out the media as Stanford did later that day. This press release also mentioned specifics of an alcohol incident that was not known to anyone outside Stanford (I had mentioned it only to Susan Schaffer in a private memo). - On 4/24/91 I asked our secretary to prepare a bookstore requisition so that I could purchase some books at the Stanford Bookstore using my unrestricted funds. I was informed that Ken Down had "frozen" my funds. This was an entirely inappropriate action on Ken's part. After my meeting with Ken and Dean Gibbons on 5/10/91 I again tried to access my funds while I was still an official employee of the University, but I was given the same reply. Now Ken Down claims that I no longer have access to those funds because I am no longer an employee of the University. This is in direct violation of a departmental policy which grants individuals access for up to a year after they leave the University, and is particularly ludicrous given that Ken denied me access to the funds while I was still an employee. - On 4/26/91 I had a phone conversation with Ken Down in which he informed me that his investigation was complete and that he had submitted a copy of the report to Dean Gibbons. Even on that day Ken could not tell me who would be deciding my case, which was another clear indication that it was being handled in a nonstandard manner. Once the investigation was complete, there was absolutely no excuse for keeping me on suspension. Guide Memo 22.8 provides for an investigatory suspension "prior to a decision," but has no provision for suspension while the decision is being made. Yet I was kept on suspension for two more weeks while the University decided my case. My drug "advocacy" ------------------ Although Dean Gibbons said that this is not the reason for my dismissal, I feel it is important to set the record straight on this issue, especially given President Kennedy's repeated assertion that such advocacy constitutes punishable conduct and not protected speech. I find it almost ludicrous that Dean Gibbons quotes a part of the investigation where I specifically told Ken Down that he was not fairly representing my statements. I was making something of a joke with Ken, but he obviously did not understand what I was saying. I believe that any advice I give to a student is a matter of free speech and is not covered by any University policy, no matter what that advice might be. I tried to explain this to Ken, but he seems to have misunderstood. If Ken had asked me, "You will not agree to refrain from encouraging students to slit the throats of newborn babies?" I would have given the exact response that I gave at the time. I consider all advice, even advice to slit the throats of newborn babies, in the domain of free speech, and I would therefore not agree to refrain from giving such advice. I would have said what I said on that day, "That's an accurate statement. That's not quite what I said, but it's an accurate statement." I repeatedly told Ken that it is not an accurate representation of my actions to say that I encouraged students to violate the policy (even with the student that I encouraged to experiment with MDA, for example, I did not say where he should use MDA, and it would not be a violation for him to do so at his parent's home). He apparently misrepresented my comments in his report to Dean Gibbons (I don't know for sure because Ken refuses to show me a copy of his report). I do not agree with Dean Gibbons' characterization of my advice as "irresponsible," nor do I accept President Kennedy's suggestion that it constitutes conduct. This is most easily pointed out by the fact that the University has provided no objective criterion whereby the speech/conduct distinction can be made. Legality cannot be the criterion, because nobody complains about my advice to students that they ignore the various antisodomy laws in this country. Disobeying University policy cannot be the criterion, because faculty and staff encourage others to disobey policies all the time. I gave Dean Gibbons an example of this in our 5/10/91 meeting when I mentioned the odious University policy that prohibits the giving of early finals, even alternate finals. I and all of my fellow lecturers in Computer Science disobey this policy and actively encourage others to do so. Dean Gibbons made it clear that the drug and alcohol policy is of a different magnitude. Ostensibly my speech is not a factor in the decision to terminate my employment. If, however, this issue is reopened as a reason for termination, I reserve the right to present more complete arguments as to why I consider such advice to be protected free speech. The alcohol incident -------------------- After consultation with several lawyers and careful consideration of the particulars, I no longer believe that the McArthur Park dinner that I described to Susan Schaffer did in fact constitute a violation of Stanford policy on my part. First, I do not believe that the dinner, which took place off-campus, was a "University activity." If every gathering of students and faculty is to be considered a University activity, then the phrase is meaningless. This activity was initiated by me, not by the University, and was not in any way authorized or promoted by my department, my school, or the University. The strongest evidence that it was a University activity is the fact that I intended to be reimbursed from my unrestricted funds for the event (a University account). In point of fact, I was not reimbursed for the event, but I don't believe that it would qualify as a University activity even if I had been reimbursed for it. I use the funds in that account for professional expenses, which at most would make the dinner qualify as an activity of "Stuart Reges as a professional." For example, I use the same funds to pay for my attendance at conferences and for lunches with my publisher, but those events are certainly not "University activities." Second, even in the event that the dinner qualifies as a University activity, it is not clear that my behavior constituted a violation of policy. The policy prohibits "the unlawful possession, use, or distribution of alcohol." If underage students consumed alcohol at the dinner, they were guilty of illegal use and the restaurant was guilty of illegal distribution, but I am guilty of neither. The fact that I paid for the meal might make me partially liable for any harm that ensued, but does not make me party to the illegal distribution of alcohol because it was the restaurant's responsibility to verify the ages of the students. To imply that I was responsible not only for avoiding violations myself, but also for actively preventing violations by others, is to add a proactive aspect to the policy that is in no way stated in or implied by its current wording. In fact, the one significant Stanford precedent relative to the question of proactively enforcing the policy states exactly the opposite. The Office of Residential Education in forming its response to the new alcohol and drug policy has stated in its formal policy that, "Resident Assistants and Resident Fellows are not expected to police or monitor the conduct of students, or to receive or act upon reports of violations." Third, I do not know for certain whether any underage drinking did occur. I did not ask the students for proof of age, so I have no way of knowing for sure whether minors consumed alcohol. I had reason to believe that underage drinking was taking place based on comments made by the students, but it is not clear whether such a belief obligated me to intercede. Finally, I repeatedly informed Ken Down during the investigation that if my job were dependent on it, I would be willing to promise not to violate the alcohol aspect of the new policy. I repeated the same offer to Dean Gibbons when I met with him on 5/10/91. I said that I disagreed with the policy and that in the absence of any action by the University, I would behave in a similar manner in the future, but that I was willing to voluntarily change my behavior if Stanford threatened to censure me otherwise. I made such a promise, including promises that go beyond the scope of the policy, in a memo to Dean Gibbons on 5/14/91 (my last day as a University employee) and Dean Gibbons responded later that afternoon that the wording of my promise was a sufficient assurance of my commitment to alter my behavior relative to the alcohol aspect of the policy. The backpack claims ------------------- Dean Gibbons wrote to me on 5/10/91 that he was dismissing me because "you carried illegal drugs while on the Stanford campus." I do not question whether such a claim, if substantiated, constitutes a violation of the 10/1/90 policy on controlled substances and alcohol. What I do question is whether Dean Gibbons knows that such a violation occurred, especially when even I am not sure such a violation occurred. What exactly is the evidence that a violation took place? In an article printed in the Stanford Daily I claimed to have carried illegal drugs in my backpack while on campus. In various letters to government officials I claimed to have carried illegal drugs in my backpack while on campus. And in a meeting with Ken Down, under the threat of losing my job for "not cooperating with the investigation," I claimed to have carried illegal drugs in my backpack while on campus. In other words, I have consistently and repeatedly been claiming for over six months to have carried illegal drugs in my backpack while on campus. Dean Gibbons knows that I claim to have carried drugs in my backpack, but he does not know whether or not my claim is true. He has no way of knowing whether or not I'm telling the truth because he has no independent evidence or additional witnesses to the alleged violations. He does not even know when the violation is supposed to have occurred, nor how frequently it is supposed to have occurred, nor what substance(s) I was supposed to have carried, nor what quantity of the substance(s) I was supposed to have carried. Susan Hoerger has said publicly that an investigation was instigated in response to specific claims made in April that were not made previously in November. The alcohol incident qualifies as such a claim, but I believe I have sufficiently shown that it has nothing to do with my termination. The claims that I made to the government and in my meeting with Ken Down were no more specific than the claims I made last November. If they were sufficiently vague to be dismissed as "rhetorical" in November, how have they come to take on such weight that they now are sufficient grounds for my termination? How can Dean Gibbons be sure that I carried illegal drugs in my backpack while on campus when even I am not sure that I carried illegal drugs in my backpack? I am not suggesting that I have been insincere in my statements, I am merely pointing out the obvious fact that a statement of belief does not constitute proof. For example, the substance that I carried in my backpack was of a sufficiently small quantity that it is quite possible that I was not carrying a measurable quantity of illegal drugs. It is also the case that I was carrying something that an individual told me was a certain controlled substance, although I have no independent evidence to verify his claim. Thus, while I believe that I carried illegal drugs in my backpack while on campus, I do not know for sure. How, then, can Dean Gibbons know that I carried illegal drugs in my backpack while on campus when his only witness is not even sure? Underage drinking at Stanford ----------------------------- An important aspect of my defense is the fact that underage drinking is prevalent at Stanford, is well known to members of the community including members of the administration, and goes largely unpunished. A study conducted by University officials this year indicated that 83% of Stanford undergraduates regularly consume alcohol. The percent of students who can legally consume alcohol is obviously much lower. Nevertheless, the response of the administration to these flagrant violations of policy has been largely to ignore them. President Kennedy himself in addressing the ASSU Senate after the new policy was adopted said that very little would change vis a vis drinking at Stanford. And the undergraduates do not seem inclined to change their behavior, despite the new policy. A recent survey of undergraduates indicated that over 70% will not change their behavior as a result of the new policy. Thus, underage drinking is very much a part of Stanford undergraduate life, and there is every indication that it will continue to be. Even when faced with overwhelming evidence that individuals have violated the policy, the University has chosen not to take action. The Office of Residential Education issues warning letters to students who have been accused of underage drinking, but this is obviously a feeble attempt at best and has resulted in no actual punishment. Approximately fifteen students have received such letters this year, even though there are obviously thousands of students who are guilty of underage drinking. With just two hours of investigation on my part I was able to verify the names of 23 underage students who had been identified by the Stanford Police as being under the influence of alcohol on campus and 3 students who were under the influence of illegal drugs on campus, and if I had been more thorough in my investigation or if I had access to university records indicating dates of birth, I'm sure that I could have identified many more. The University is so reluctant to act that it takes no action even when the underage drinking leads to highly irresponsible behavior. In late October, for example, a 19-year-old Stanford freshman was charged with prowling and possession of false identification when he was arrested by the Stanford Police trying to break into a house in the faculty ghetto, yet the University took no action against him. On October 13th an underage student was cited by the Stanford Police for driving under the influence of alcohol, yet the University did nothing to punish that student. No action was taken against the obviously underage Delta Delta Delta sorority pledge who was taken to the hospital when she passed out from alcohol consumption on April 17th, nor against the many other underage students who have ended up at the emergency room from abuse of alcohol (I found the names of at least four others in the Stanford Police records). And the examples go on and on. The only serious action Stanford has taken with regard to drinking in general is to suspend privileges for certain houses and social fraternities. Even then the suspension has been based not on charges of underage drinking violations, but on charges of irresponsible behavior generated by drinking. The members of the Theta Xi house, for example, were required to perform community service as punishment for their violations of the alcohol policy after a fight broke out at one of their parties causing a Stanford junior to be admitted to Stanford Hospital with a fractured skull. Thus, individuals are not charged, only organizations, and violations of policy are ignored until they generate irresponsible behavior. Even so, many examples of irresponsible behavior are completely ignored; only outrageously irresponsible behavior (and that doesn't seem to include driving under the influence or breaking into a house at 4AM) is considered worthy of response from the University. Thus far I have discussed violations of policy by students. It can easily be shown, however, that even violations by faculty and staff are routinely ignored. The faculty and staff are generally old enough that they are not guilty of underage drinking, but they can certainly be guilty of illegal distribution of alcohol, and Dean Gibbons seems to think that they are guilty of violating the policy even if they indirectly purchase alcohol for minors. The illegal distribution of alcohol by faculty and staff is so well known at Stanford that I could fill volumes with examples, but I will again restrict myself to a few representative ones: - The Geology Department hosts a weekly event called "Friday beer." The event is mostly attended by faculty and graduate students, but undergraduates are also invited. Beer is sold at this event to all who want it, with no checking of IDs and not even a sign encouraging those under 21 to refrain from this obviously illegal activity. This is a regular departmental event which is at least encouraged if not actually sponsored by the faculty of the department. - An underage student has given me a detailed account of how he was served alcohol at a dinner at Norm Robinson's house this year honoring recipients of the Dean's Service Awards, an event also attended by President Kennedy and Judicial Affairs Officer Sally Cole. The student received mixed signals from his hosts about whether or not he could drink. To quote him directly: Anyway, when we entered his house, there was a big punch bowl filled with ice and bottles of Corona and a few bottles of wine. When I eyed the booze (eagerly), I was told by Norm that we had to be 21 to drink, and that we were under the honor code. He mentioned it in kind of a joking way, because there had been much recent debate about it. He was like, "ho ho ho, don't touch that unless you're twenty-one, you know, ho ho ho, honor code." The student ended up drinking several beers. Perhaps Norm was misunderstood by the student, but I don't believe so. I think this points out the tremendous ambiguity surrounding this issue on campus. In any event, it at least provides an excellent example of a "University activity" occurring with the full knowledge of President Kennedy at which lax monitoring of alcohol distribution has led to underage drinking. - Probably the most clear example of faculty and staff violating the new policy relative to underage drinking, however, comes from the freshman dorms. It is well known that alcohol continues to be served at parties in these dormitories even though the residents are obviously underage. In my own investigation I have yet to find a single freshman dorm that hasn't served alcohol at its parties this year, despite the new policy, and I have checked on over half of the all-freshman houses. I have had the opportunity in the past month to converse with many Resident Fellows in freshman dorms, and it is clear that these University staff members, many of whom are on the faculty, are fully aware of the underage drinking facilitated by their residence staffs. In case the administration tries to feign ignorance on this issue, let me point out that one need only read the pages of The Stanford Daily to find ample proof of this point. On May 16th, for example, The Stanford Daily ran an article explaining how the Alpha Sigma house had been cleared of charges partly because a freshman and the prospective freshman he was host to both got drunk not at Alpha Sig, but rather at a party in the host's all-freshman dorm (the article names the dorm, but I don't think it is necessary for my defense to do so). Needless to say, no charges have been filed against the residence staff of that dorm, nor have charges been filed against the residence staff of any of the freshman dorms even though those staff members are obviously unlawfully distributing alcohol to the underage residents of their dorms. - The all-freshman houses, however, are by no means the only offenders of policy. I have yet to find a four-class or three-class dorm that checks IDs of residents when they have a closed party or event. For example, more underage drinking took place at a wine-and-cheese in a three-class house where I was invited to discuss my suspension than at the McArthur Park dinner that prompted the suspension. It is obvious that my case is being handled differently than cases of underage drinking. There is nothing in the policy to imply that the carrying of illegal drugs in my backpack is somehow "worse" than underage drinking on the part of students or the unlawful distribution of alcohol to minors on the part of faculty and staff. In fact, the apparent policy of the University is to take action only when individuals' violations are accompanied by seriously irresponsible behavior, and by that criterion I should not even be charged. Thus, the University is being entirely inconsistent in its vigorous enforcement of the policy in my case when it rarely if ever takes action against underage drinking. My contract with the University ------------------------------- Provost Rosse in his memo of 5/7/91 incorrectly implies that the University has no commitment to pay me salary beyond 6/30/91 when he states that "Mr. Reges' appointment expires in June." While my most recent appointment papers were due to expire on that date, the University is committed to pay me salary well beyond that date. The CS department has a policy of paying its senior lecturers half-time salary in the summer, even if they have no specific teaching duties. Eric Roberts, the Assistant Chairman for Education in CS, verified that this policy would apply to me even in my last year of employment at Stanford. Additionally, Guide Memo 22.8 states in subsection 2b2 that "Senior lecturers and lecturers holding salaried appointments for a term of one year shall be notified not later than March 15 if the appointment is not to be renewed." Thus, I could expect full-time employment at least through 6/30/92, and by the departmental policy I could expect at least half-time employment for the two successive months. This issue is particularly relevant to the question of severance pay, because I believe that the University is in breach-of-contract. The only way that it can avoid paying me the additional year of salary is to claim that my actions constitute "professional misconduct." That is a matter of opinion at best and is in my case certainly far from being convincingly proved. The University's own policies make it clear that senior lecturers are to be given fair warning that they might not be employed for another year so that they will have the opportunity to seek other employment opportunities and make appropriate financial plans. I have not had the benefit of such advance warning. The University knew full well of my claims about my backpack long before the March 15th deadline. If such claims could disqualify me from employment at Stanford, the University was bound by its own policies to contact me prior to 3/15/91. Given that I was not contacted until 4/19/91, I believe that the University owes me at least an additional year's salary. My unrestricted funds --------------------- Prior to my suspension I had available a total of $4,360.09 in my unrestricted account (the actual balance was $1,500 lower, but only because the Computer Science Department had not yet transferred that amount of money into my account). Most of this money was paid to my account as an incentive for teaching nonlocal students through the Stanford Instructional Television Network (SITN). The additional $1,500 was promised to me by the department as an incentive for agreeing to teach this year. I had considered not teaching at Stanford this academic year until the department made an offer that was satisfactory to me, and part of that offer was that I would be given an additional $1,500 for my unrestricted funds to spend on professional activities and expenses. It is the policy of the Computer Science Department to make these funds available to former employees for up to a year after their departure from Stanford. The previous policy was even more lax (I myself helped to arrange the purchase of a Macintosh computer for Bob Tarjan using his unrestricted funds years after he had left the University). It is not practical for the department to expect individuals to use all of their funds before they leave. SITN has traditionally not transferred funds until well after the quarter is over, which would make it impossible for instructors to access the money earned in their last quarter of teaching unless some grace period is allowed. Also, it would put an undue burden on the administrative staff if they had to cope with having to quickly fill out paperwork to utilize funds before the deadline expires. That is why the department settled on the one-year grace period. Now Ken Down has informed the department that I am to be given no grace period whatsoever. He claims that because I am no longer an employee, I should no longer have access to the account. But as I have described previously, even while I was still a staff member Ken blocked my usage of the funds. He has denied me access to my account ever since my suspension. I believe this constitutes another breach-of-contract. Although unrestricted funds are not paid as salary, they do constitute a formal negotiated benefit. I was promised a certain amount of unrestricted funds in exchange for services rendered in the case of SITN and in exchange for returning to Stanford for another year of teaching in the case of the CS Department. I rendered the services to SITN and returned for another year of teaching, yet now the University proposes to deny me access to the funds they previously promised. To make matters even more absurd, most of the money in that account was either earned or promised to me before the new policy was adopted on 10/1/90. In addition, I was to have earned $806 in incentive money for the TV students in my CS109B course this quarter. I taught half of the course and would have taught more if the University had not violated its own policies and placed me on suspension. Therefore, I demand not only that I be given access to my unrestricted funds for some reasonable grace period, but also that the University pay me at least half of the $806 that SITN would normally pay to the instructor of CS109B. Promising to abide by the policy in the future ---------------------------------------------- In Dean Gibbons' letter of 5/10/91 he says that a prerequisite for being reemployed is that I promise to "abide by the University's Policy on Controlled Substances and Alcohol at all times in the future." I consider this an unreasonable request given that no other employee of Stanford has been requested to make such a promise. In addition, it is impossible for me to make such a vague promise. I can express my intent relative to specific actions, but not something as ambiguous as "policy." Am I promising to abide by the policy as I understand it or as Dean Gibbons understands it or as the courts understand it or what? What happens if the policy changes? How can I promise to abide by all possible future limitations (e.g., mandatory drug testing) when I don't know in advance what those will be? Termination as punishment in my case ------------------------------------ Even if one accepts the idea that there is ample evidence to indicate that I have violated University policy, the particular form of punishment chosen in my case is entirely inappropriate. The wording of the policy itself implies a spectrum of possible responses when it states that, "Violations of this policy may result in disciplinary sanctions up to and including termination." Everything I have heard from the University would imply that only repeat offenders would be subject to significant sanctions. For example, here is an excerpt from an article that appeared in the 11/28/90 issue of The Stanford Daily: University officials will send all Stanford employees a letter next month warning that they could face disciplinary action ranging from a warning to dismissal if they violate Stanford's new drug and alcohol policy. Although the new policy prohibits the unlawful use and possession of both drugs and alcohol in the workplace, administrators said they are most concerned about faculty and staff providing alcohol to underage students. Manager of Employee Relations Keith Smith said the main thrust of the explanatory letter is "the need to insure that alcohol is not provided to persons under 21." ... "People need to know that if they have a party celebrating a birthday or an end of term project and alcohol is served to a minor, they're subject to University discipline," said Doug Dupen, deputy manager of Employee Relations. He gave the example of a supervisor giving beer to an 18-year-old at a lab gathering. After the first offense, a warning letter will appear on the supervisor's file, Dupen said. The next time the University will "get tougher," he added. According to this article, if I carried drugs in my backpack, that is of less concern to the University than providing alcohol to minors, and even the more serious offense of providing alcohol to minors would be punished by a letter of reprimand on the first offense. I realize that The Stanford Daily is not an official spokesman of University policy, but if this article seriously misrepresented what Mr. Smith and Mr. Dupen intended, I find it surprising that they did not mention it to the Daily staff nor to University staff members in the letter sent to them in December. Mr. Dupen informed me that he himself drafted the cover letter sent a month later under Susan Schaffer's letterhead to the staff informing them of the new policy, so I find it odd that he wouldn't take the opportunity to clear up any misrepresentation of the University's intentions, especially given that most Stanford community members look to the Stanford Daily as their source of campus information. Similarly, the policy itself states that first-time offenders should be warned rather than punished. The policy states, "If the employee demonstrating poor performance or unacceptable conduct claims causes other than substance abuse are causing the problem, or does not elect to seek help for whatever is the cause of the problem, the supervisor first should counsel the employee in the ways his or her actions on the job need improvement or are unacceptable." Thus, the policy states that the appropriate first step is to counsel me. Instead, the first step taken has been to fire me. Even the second step indicated by the policy is supposed to be a warning, not an actual punishment: "If improvement does not take place, the employee should be warned that the poor performance can result in discipline, including termination of employment." This issue is specifically addressed in the policy statements sent out to students. The following statements appear in a section entitled "Consequences of Violation": Educational and rehabilitative measures will be the preferred response to infractions unaccompanied by more egregious conduct. However, behavior could run the gamut from a simple Minor in Possession (of alcohol) with no prior disciplinary history to drunken behavior resulting in loss of life. Outside of the alcohol incident, for which Dean Gibbons agrees I am sufficiently rehabilitated, I am at most guilty of unlawful possession of a controlled substance. I have no prior disciplinary history and my action was unaccompanied by more egregious conduct. Thus, by the University's own written policies there is every reason to believe that the violation for which I was fired is the most minor of offenses along the spectrum of possible violations. Instead of counseling me on ways to improve my behavior or warning me about possible future actions, the University has fired me outright. The excuse given is that "you will not agree not to violate the Policy in the future." You don't have to be a linguist or a logician to realize that there is no indication of future behavior in that double-negative. I have never indicated that I will violate the policy in the future, I have merely refused to promise not to violate the policy (mostly because I find such a promise insulting and vague and, as noted earlier, because no other staff member has been asked to make a similar promise). In fact, the one question asked during the investigation pertaining to this issue indicated that I had reformed my behavior. Ken Down wanted to know whether I was carrying illegal drugs on campus "today" (i.e., the day of my interview with him). My answer was "no." Dean Gibbons has decided that my attitude is not appropriate, and therefore he can predict my future behavior (or misbehavior, as the case may be). Again I have to ask how Dean Gibbons can know for sure what my future behavior will be when even I don't know? It is absurd to suggest that the Dean is a better prognosticator than I am, especially given that neither he nor Ken Down ever even asked me why I refused to make the promise they asked of me. The appropriate response to satisfy both common sense and the policy would have been to give me the usual punishment for first-time offenders and threaten me with more stringent punishment for future violations. I am not only a first-time offender, I am also the first first-time offender to be punished as an individual under this new policy. Thus, there is no precedent. But as noted earlier, the policy itself and the comments made about it by members of the Office of Employee Relations imply that a reasonable punishment would be a letter of reprimand. The fact that I am the first individual to be punished would imply, if anything, a greater responsibility on the part of the University to warn and rehabilitate rather than to severely punish. As noted earlier, the only action taken against individual students has been to write them warning letters that are kept on file until the students graduate, and even that practice has generated at most fifteen letters. The only real punishment that has been meted out to students for violation of this policy is that members of the Theta Xi house were collectively required to perform community service because their violation of the policy was accompanied by the egregious outcome that a student suffered a fractured skull after a fight broke out between underage students who had gotten drunk at Theta Xi. In the domain of faculty and staff I have yet to find evidence of anyone who has been warned or punished under this policy. In numerous calls that I have made to Employee Relations, Residential Education, SLAC, the Provost's Office, the Medical School, and various individual departments, I can find no evidence of action taken against a faculty or staff member under this policy. Thus, I am the first and only individual from the Stanford community who has been truly punished under this policy, and the University has elected the most severe possible penalty in my case, even though my offense is, according to University policy, the most minor offense possible. The only possible conclusions are that I am a devil among angels or that the University has decided to make an example of me in a highly capricious manner. Given the obvious violations of the policy on the part of others at Stanford that I have documented, I believe that the latter conclusion is the only reasonable one. Warning ------- As noted in the previous section, the policy indicates that I should first be warned rather than punished, particularly if there is no accompanying egregious act. I have received no such warning. As mentioned earlier, I received no comments on my November article from any University officials. As I have pointed out, Susan Hoerger mentioned that my articles were discussed, but that no action was taken. It is also worth noting that I later found out, quite by accident, that copies of my November articles were placed in my personnel file, even though none of my many other Daily articles have been put into my file. Thus, it is obvious that my articles were noticed and that someone contemplated possible future action, although that someone did not consider it worth mentioning anything to me. My letter to Susan Schaffer has been used against me, when in fact it clearly points out the fact that the University was not interested in providing me any kind of warning about my behavior. The "evidence" that has been gleaned from my memo to Susan Schaffer was not difficult to obtain. The entire point of the memo was to describe everything I was doing, including the fact that I was writing to the government, and to query whether or not the University cared about my actions. I wasn't sure whom to write to, but I chose Ms. Schaffer because the policy had been sent to me with a cover letter signed by her, so she seemed like the logical University administrator to contact if I wanted to find out how the University would respond to possible violations. As I said in the memo: I wanted to inform you of all these facts in case Stanford actually does want to do something about it. Feel free to show this memo and my article to anyone else in the University who you think should know about my activities. It is interesting to note that I wrote to Ms. Schaffer a week before the McArthur Park dinner took place. I sincerely believe that if she or any other University official had responded to my memo by telling me that my actions were placing me in serious jeopardy of losing my job, I would have taken steps to ensure that underage drinking would not have taken place at the McArthur Park dinner. But Ms. Schaffer gave me no such warning. In fact, I had to fight to get even an acknowledgement. I first wrote to her on 3/26/91. When I received no reply, I sent her an email message on 4/8/91 requesting a verification that she received my earlier memo. When she still hadn't responded by 4/10/91 I sent yet another message asking her to please acknowledge receipt of my memo. She finally sent back a note on 4/11/91 saying: I have received your memo and forwarded it to the Provost..Su Schaffer This is hardly an expression of concern, especially given the casual signature of "Su" rather than "Susan." Thus, no warning was issued even on 4/11/91 by the University staff member I had sought out for a clarification of how the University would respond to my actions. Of course 4/11/91 was also the day that Bob Martinez wrote a letter to Donald Kennedy and that, more than my actions, seems to have dictated the course of future events. If later actions were not based on the Martinez letter, why didn't "Su" take an extra minute to add, "You need to stop carrying illegal drugs in your backpack or you might be punished"? No such warning was ever given to me by any University official, not even when I was placed on suspension. Government intervention ----------------------- Susan Hoerger and President Kennedy have tried to claim that the investigation into my behavior and my termination were not prompted by government pressure but rather by new "specific" claims that were not known earlier. While the alcohol incident does fit into this category, I have clearly shown that it cannot be the basis of my dismissal, especially since I have more than satisfied the intent of the "rehabilitation" aspect of the policy by promising not to repeat the behavior in the future, whether employed at Stanford or not. Officially, I have been fired for my backpack claims and only for my backpack claims. How then can the University pretend that government pressure has nothing to do with my being fired? I made identical claims back in November and the University took no action. The five-month delay can only be explained by the sudden appearance of a letter from Bob Martinez demanding that I be fired. It is immoral for the university to allow the federal government to dictate its hiring and firing decisions. This question is of particular importance to the question of severance pay, because I had fully informed the University of my backpack claims back in November, yet it took no action until well after its own March 15th deadline after which my contract was to be automatically renewed. If the University is going to take the cowardly position of caving in to government pressure five months after my backpack claims became public, they might at least fulfill their contractual obligations to me regarding salary. The question of just cause -------------------------- I have asked to be shown all written statements pertaining to the University's definition of "discharge for just cause" and have been told that Guide Memo 22.8 is the relevant document. It contains no unambiguous definition of "just cause," but does in subsection 3b3b list a series of questions that one should be able to answer affirmatively "when applying the concept of just cause." I believe that many, if not all, of these questions cannot be answered affirmatively in my case. - Did the employee have forewarning or could the employee have been reasonably expected to know that the conduct of performance was of a serious enough nature to cause discharge? I knew all along that repeatedly carrying illegal drugs in my backpack was of a serious enough nature that it could eventually cause discharge. I stated as much in my Daily article last November. But that was under the assumption that I would be caught. Quite honestly, I did not believe that claiming to have violated the policy could have been used, in and of itself, as the reason for terminating my employment. I thought that perhaps a letter of concern or reprimand might be generated by such claims, but not outright termination. The University's silence after my November article only reinforced my belief that such claims would not be the basis for punishment. As I have demonstrated in previous sections of this document, my backpack claims are the only reason for my recent discharge. How, then, can the University feel that they have fulfilled their obligation to give me forewarning when I made such claims publicly in November and the University decided at that time not to even contact me about them? The University's negligence is further proved by the fact that when I contacted a University administrator directly to find out whether or not my actions were of concern to the University, she said nothing to warn me to change my behavior. As I have also demonstrated, the wording of the policy itself and statements made about the policy by University administrators indicate that carrying drugs in my backpack is a minor offense and that education and rehabilitation would be stressed as first steps. Thus, the University gave me every indication that as a first-offense, carrying drugs in my backpack was not of a serious enough nature to cause discharge. - Am I applying a standard of conduct or performance which is reasonably related to the orderly, effective, efficient, and safe conduct of the University's operations? I chose the backpack specifically because it is not related to the orderly, effective, efficient, and safe conduct of the University's operations. If I were under the influence of illegal drugs while on campus, or if I were selling drugs on campus, or even if I were showing such drugs to people on campus, one could claim that I was interfering with the University's operations. If the University were concerned about any legal obligation, they could have absolved themselves by turning over their information to the Stanford Police. While it is true that current federal law allows the government to seize property where drug dealing takes place, the mere presence of drugs hidden in my backpack does not pose any legal threat to the University. The fact that it is now prohibited indicates how much the new policy clashes with Stanford's other policies and procedures (as Dean Wasow noted, the old policy "was an extremely intelligent and enlightened one, and the federal government forced us to change it"). And as I have pointed out elsewhere, the only conduct the University is sure of is that I have claimed to have carried illegal drugs, and such claims are even less of a threat to University operations than the corresponding behavior would be. - Have I made an effort to discover whether in fact the employee did violate a standard of conduct or performance? The answer again seems to be "no." As I have pointed out, it is unreasonable to claim that the McArthur Park dinner constituted a violation of policy, yet there is no indication that the questions I raised were considered by the University, even though it was their responsibility to determine whether in fact a violation had occurred. Similarly, the question of what standard of proof should be used in determining whether the backpack claims indicate a violation of policy should have been raised by the University, not by me. - Have I attempted to obtain all the relevant facts regarding the problem including any facts and perspectives from the employee? I cannot comment on how vigorously the University has explored the gathering of evidence relative to the backpack claims and the alcohol incident, but I do know that the University did not adequately explore the advocacy issue. Dean Gibbons has said that this is not his reason for terminating me, but I can't quite believe that it didn't factor into his thinking. The student who asked me for advice about whether or not to try MDA has a very important point of view that the University failed to investigate. I informed Ken Down that the student was willing to talk to him if he could guarantee him anonymity. Ken couldn't make such a guarantee at our first meeting, and at our second meeting he said that he no longer wanted to interview the student. - Is discharge in this case reasonably related to the seriousness of the employee's misconduct or unsatisfactory performance? Absolutely not. As I have pointed out previously, the University's own statements about this policy indicate that there is a spectrum of offenses and that my offense was the most minor because I have no prior disciplinary history and because my action was unaccompanied by more egregious conduct. - Has consideration been given to the employee's total record with the University? The policy clearly indicates that violators can be discharged, no matter what their total record is with the University. I do, however, think this question is relevant to the issue of severance pay. Stanford's decision to ignore its contractual obligations to employ me for another year and to grant me access to my unrestricted funds is even more reprehensible given that my contributions to the Stanford community have been so universally praised by my department, by my students, and by the University itself in awarding me the Dinkelspiel Award for Outstanding Service to Undergraduate Education in 1985 and the School of Engineering Outstanding Advisor Award in 1986. - Is this action consistent with the handling of similar situations at the University? The answer is clearly "no." As noted earlier, Stanford Police reports indicate the names of at least three students who have been found this year in possession of controlled substances, yet the University has taken no action against them. Similarly, underage drinking happens at Stanford all the time and is almost universally tolerated, even when University staff members are the hosts of the events where underage drinking is taking place. One could argue that controlled substances are a greater danger to Stanford than is underage drinking, but this is in no way stated in or implied by the policy. In fact, it seems to me that when RFs of dorms host events where they know that alcohol is going to be served in the lounge to the underage residents of the dorm, they are committing a greater violation of the policy, because they are not only personally violating the policy, but also facilitating the violation of the policy by others. Additionally, as I have noted earlier, violations that lead to disturbances that draw the attention of the Stanford Police are ignored at Stanford, even though the offenses I am accused of have not even generated a search warrant from the Stanford Police, let alone a citation and conviction in court. The only other instance of punishment was for an entire residence and not for an individual and was a lesser penalty (community service) for an offense that by the University's own stated standards was more severe because it was accompanied by egregious conduct (a fight that led a Stanford undergraduate to be hospitalized). Finally, I have been told that I might get my job back if I promise to abide by the policy at all future times, yet no other members of the Stanford community, not even the members of the residence that were required to do community service, have been asked to make such a promise. I am the one individual who has been required to make such a promise, and I have been told that I am ineligible for employment until I make it. Points to be addressed ---------------------- To clarify the different questions and concerns raised in this grievance, let me summarize with a list of points that the University needs to address: - Why have I not been allowed to read and respond to Ken Down's report to Dean Gibbons? - Did the McArthur Park dinner constitute a "University activity?" If so, what about it defines it as such? - Is unlawful purchase of alcohol prohibited by University policy when there is a third party (in my case, the restaurant) responsible for distribution? - If a staff member hosting a University event suspects that underage students might be intending to drink alcohol, are they required to check IDs or otherwise intercede? - How does the University decide when remarks are "rhetorical" versus serious? How is this communicated to the faculty and staff? - Does the University have any evidence beyond my claims to prove that I carried illegal drugs in my backpack on campus? If my claims are the only evidence, and such claims are sufficient, why was no action taken against me in November when I first made the claims? - Was it negligent of the University to delay making the new policy available to me? If so, how can the University justify imposing such a severe penalty for actions that might have all occurred before the policy was made available to the public on 11/14/90? - Why has the University taken no action against students who are obviously guilty of underage drinking and possession of controlled substances? Why are Resident Fellows allowed to host events where alcohol is served in freshman houses where everyone is underage and in other houses where many are underage and IDs are not checked? Why is the Geology Department allowed to sell beer to underage students on a weekly basis? What significant steps are being taken to punish the thousands of violators of this policy at Stanford University? - Was the University contractually obligated to employ me at least through 6/30/92? If so, how can it justify refusing me severance pay through that period? - Why was I not allowed to spend my unrestricted funds while I was still a staff member? Are departments allowed to give former staff members some grace period in which to spend their unrestricted funds? If they are, why am I being treated differently, given that the CS department gives a one-year grace period? - Why was it necessary to suspend me while the University investigated and decided my case? - Will other members of the Stanford community be asked to promise to abide by the policy at all future times? If not, why was I treated differently? - Why didn't Susan Schaffer warn me that my actions were of concern to the University, given that I had written her specifically to get an answer to that question? - Was my suspension and termination influenced by the letter from Bob Martinez? If not, how does the University explain its sudden whirlwind of response after months of inaction? - Is it the intent of the University's Policy on Controlled Substances and Alcohol to have a spectrum of punishments, termination being the extreme endpoint of that spectrum? If so, what defines this spectrum (i.e., how are offenders placed along the spectrum)? - University policy statements indicate that employees are to be warned before a harsh penalty like termination is imposed, unless the conduct is particularly egregious. What is true in my case? If the University feels that I have been warned, what constituted the warning? If the University feels that my conduct was deserving of termination without warning, what about it was so egregious? - University policy also stresses rehabilitation over punishment. What evidence is there to suggest that I have not fully rehabilitated and discontinued my previous behavior? Summary ------- My case has been mishandled and the ultimate decision was flawed. The case raises significant questions about both the interpretation of the policy and its application. It is essential that the ambiguities raised by it be addressed by the University. The most appropriate response to my grievance would be to reinstate me (perhaps with a letter of reprimand added to my personnel file), but at a minimum the University should meet its contractual obligations by providing me with another year's salary as severance pay and allowing me a reasonable grace period in which to spend my unrestricted funds.