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August 31, 1999

U.S. Justice Department Is Satisfied with Trustees' Action in Appointing USA President, but Someone Can Still Sue for Employment Discrimination

by Edmund Tsang

The U.S. Department of Justice is satisfied with the explanation offered by the attorney representing the University of South Alabama (USA) regarding the action of its Board of Trustees last December, when it dissolved the search committee and appointed Gordon Moulton president. While indicating that the actions taken by USA since last December have clarified its commitment to the objectives of equal employment opportunity that are embodied in a 1985 consent decree involving USA and that "no further action is warranted," a senior Justice Department official also says "This does not foreclose any individual who feels they have been discriminated against from seeking relief under Title VII of the Civil Rights from the Equal Employment Opportunity Commission."

Section 16-55-3. Board of trustees -- Powers as to organization and administration.

    The board of trustees shall have the power to organize the institution by appointment of instructors and faculty members and such executive and administrative officers and employees as may be necessary to operate the university...

Source: Act No. 157, passed by Joint Resolutions of the Alabama Legislature on May 7, 1963.

Article V. PRESIDENT AND DUTIES

    Appointment of Chief Executive Officer of the Institution, the President. The President shall be elected by the Board of Trustees, and shall serve at the pleasure of the Board, but may be removed only by a vote of eight members of the Board.

Source: Bylaws of the Board of Trustees of the University of South Alabama.

III. EQUAL EMPLOYMENT OPPORTUNITY

       The defendant (University of South Alabama) is committed to the objective of an increased presence of qualified black faculty and administrative staff at the institution and is committed to taking all reasonable steps under law to employ, train and promote qualified black faculty, administrative, and professional staff members, as vacancies occur and new positions are created, on a nondiscriminatory basis... To achieve this objective the defendant shall take the steps described in Sections A, B, C, D and E of this Part III.

A. INFORMATIONAL AND RECRUITING ACTIVITIES

       In addition to its other recruiting activities, the defendant shall take the following actions:
(1) Advertise each faculty and administrative staff vacancy which occurs during the term of this decree in the Chronicle of Higher Education and the Affirmative Action Register.
(2) Submit a written request to the Southern Regional Education Board Data Bank for the names of black persons who meet the requisite qualifications for each faculty or administrative staff vacancy which occurs during the term of this decree....

Source: Consent Decree signed by the University of South Alabama in 1985 as a result of a federal lawsuit regarding racial discrimination against Alabama's high education system filed by John F. Knight.

PROFESSIONAL BIOGRAPHICAL SUMMARY
V. GORDON MOULTON

    V. Gordon Moulton is a native of Donalsonville, Georgia and is married to the former Geri Shelley.

  • Holds a B.S. Degree from the Georgia Institute of Technology, industrial management (1964) and an M.B.A. from Emory University (1966).
  • Joined the College of Business at the University of South Alabama in 1966 as Instructor.
  • Named Director of University Computer Service in 1968, while continuing appointment in the College of Business as Instructor.
  • Promoted to Dean of Administrative Services in 1977.
  • Promoted to Vice President for Services and Planning in 1983.
  • Appointed as President of the University of South Alabama on July 29, 1998.

ACADEMIC INVOLVEMENT

  • Member of the faculty since 1966
  • Established the Department of Computer and Information Sciences in 1980 and served as Dean
    • Established the Graduate Program in Computer Science in 1983
    • Program in CIS accredited in 1988
    • School of Computer and Information Sciences created in 1990 and continued to serve as Dean of the School until his appointment as President at the University of South Alabama
  • Served as primary liaison administrator with Alabama Commission on Higher Education since 1978

OTHER PROFESSIONAL INTERESTS

  • Founding member of the Alabama SuperComputer Authority and currently Chair of the Board of Directors
  • Member of Task Force for Envision Mobile
  • Member of Governorís Commission on Technology in Education

Source: Provided by the Presidentís Office, University of South Alabama


When Dr. Frederick Whiddon was forced by the Board of Trustees to retire in August 1998, a search committee was appointed by then Governor Fob James, who was the President of the USA Board of Trustees. But before the search committee, which was headed by trustee Larry D. Striplin and had several trustee members serving on it, had met even once, it was dissolved by the Board at a meeting on December 3, 1998.

The USA Faculty Senate condemned the trustees' action by passing a resolution of "No Confidence," which was carried by a vote of 32-to-8. The resolution stated that the Faculty Senate had made several attempts to move the search process forward, including passing a resolution stressing the importance of an "open and wide-ranging search" and forwarding it to the Board of Trustees. The resolution also stated that had the trustees followed the "proper and accepted way" for universities to choose their presidents, such an action would conform to the USA Affirmative Action Plan as well as the consent decree that USA signed in 1985 regarding fair employment practices.

Because the action of the USA trustees had the de factor consequence of denying qualified minority and female candidates from applying for the position, I wrote a letter to the Civil Rights Division of the U.S. Department of Justice requesting a legal opinion. While the legislation creating USA as well as the Board of Trustees by-laws indicate that the Board has the authority to appoint "the chief executive officer of the institution, the president," I asked the Justice Department in a letter sent on December 10, 1998 whether the Board of Trustees "can do it while denying qualified ethnic minorities and females a chance to compete for the job." (See sidebar on legislation creating USA and Bylaws of the USA Board of Trustees)

In a letter dated February 11, 1999, Pauline A. Miller, a senior trial attorney of the Justice Department, wrote: "The United States is one of the plaintiff parties in the above- entitled school desegregation involving the public institutions of higher education in the State of Alabama (Knight and United States v. State of Alabama). The issues you raise regarding the appointment of Gordon Moulton as President of the University of South Alabama may be covered by the orders in that case." (See sidebar on consent decree)

In a telephone call in mid February, Ms. Miller asked me if I know of anyone who planned to apply. I informed her that while the potential pool of qualified candidates is large -- the job pays $240,000 a year and the eventual appointee does not have a terminal degree, i.e., a Ph.D. (see sidebar on Mr. Moultonís professional resume) -- no one could make a plan to apply because they would not know there was such an opportunity, because there was no announcement regarding the position opening.

Meanwhile, I also asked the Attorney of USA, Jean W. Tucker, if the university would provide me with counsel, as a faculty of USA, to test the legality of the Board's action in court. Ms. Tucker wrote back in late January 1999 that the university would not provide legal counsel for such a challenge in court.

In a later telephone call in July, Ms. Miller informed me that Ms. Tucker, in responding to the Justice Department concerning whether the Board of Trustees has complied with the terms of the 1985 Consent Decree, asked Ms. Miller for the name of the person who initiated the inquiry.


Ken Kvalheim, the USA trustee who sponsored the motion last December to dissolve the search committee, told me in a telephone interview in early August that the reason why some trustees were unaware of his plan last December is because he decided to introduce such a motion "almost on the day of the meeting." Trustee Kvalheim then added that ending the search process was his idea alone ("I'm often known as the renegade on the board.") but he might have talked to other trustee members in "passing conversation." The daily newspaper reported on December 4, 1998 that trustees Dr. Steve Stokes and Circuit Judge Charles Wood said they learned of the plan to dissolve the search committee just one day prior to the trustee meeting, when contacted by a Mobile Register reporter on December 2.

Mr. Kvalheim explained that the trustees "were not ready to go for a search" because the board "never decided on what to look for" regarding the next president for USA, and consequently "had no job description for the president and didn't give a charge to the search committee."

"We needed a president right away," Mr. Kvalheim added. "There were too many vacancies among the top administrative and academic positions, and you can't begin to fill those positions unless you have a president of the university."

Among the trustee members, Mr. Kvalheim said he is the most involved in the university community and the most in tune with its constituents. So when he heard rumors of intrigue regarding the presidency of USA, Trustee Kvalheim decided it was time to act to prevent that from happening. Aside from the well-publicized attempt by trustee Striplin to name Jimmy Baker, the outgoing state Finance Director, to the new position of chancellor of USA, Mr. Kvalheim said he had also heard many stories of "various people lobbying for someone to be the USA president even before the search committee had a chance to meet."

Before the trustees can begin a search for the next president of USA, Mr. Kvalheim said they need to know what direction the university should be heading. "We will involve the faculty and the community to examine the mission of the university to find out what kind of university USA should be, research versus teaching, and the role of service to the community since USA also has three hospitals."

When asked whether the issue of the 1985 consent decree on providing equal employment opportunity ever came up in discussions on terminating the search process before it had actually started, Trustee Kvalheim said "under the Alabama codes creating USA, the Board of Trustees appoints the president."

Jack Brunson, the chairman of the USA Board of Trustees, said in a telephone interview in mid August that he recalls discussions with some trustee members about ending the search prior to the meeting last December but doesn't remember if the discussions involved Trustee Kvalheim or not. Furthermore, he does not remember if the consent decree about fair employment practices ever came up during discussions on abandoning the search process, but he is certain that it was brought up afterwards.

"Carrying out national searches applies only to the faculty," Mr. Brunson added. "I'm still not sure if it is required for the USA president."


In a letter dated April 23, 1999 to Pauline A. Miller of the Justice Department, the USA Attorney wrote that "the Consent Decree does not specifically reference the office of the president.... [and] because of the unique nature and responsibilities of the office, it is reasonable to conclude that the presidency is not among those categories of employees, i.e., 'faculty and administrative staff,' covered by the advertising and search requirements of the decree."

Citing many of the same arguments given by Trustee Kvalheim, Ms. Tucker, Attorney of USA, explained in a letter to the Justice Department the justification for the action taken by the Board of Trustees last December. "The necessity for the Board to act decisively and expeditiously is underscored by the extraordinary circumstances that led to Mr. Moulton's appointment," Ms. Tucker wrote.

Ms. Tucker also cited the resolution passed by the USA Board of Trustees in March 1999 to appoint a committee to develop plans and guidelines for the process to select the next president as evidence of the "University's commitment to conducting presidential searches via an open, comprehensive, and orderly process." At the time, the Board of Trustees also passed another resolution to create a committee "to institute a university-wide planning process with the goal of developing a collective long-term vision for the University."

Dr. Calvin Jones, president of the USA Faculty Senate during the 1998-1999 academic year, said in a telephone interview last week that he agrees with trustee Kvalheim that developing a long-term vision for the university goes hand-in-hand with establishing a formal procedure for future presidential searches. In fact, Professor Jones added, the Executive Committee of the Faculty Senate passed two resolutions on these issues last year that were forwarded to the Board of Trustees, asking the board to form committees that include faculty participation to carry out these tasks. While the trustees established a committee in March 1999 looking at the long-term goals for athletics and the potential of a football program for USA, Dr. Jones said, it has yet to form the committees to develop a long-term vision for the university and on presidential searches during the time he was president of the Faculty Senate.

The current president of the USA Faculty Senate, Dr. Elise Labbe, said she received a letter dated August 3, 1999 from chairman pro tempore of the USA Board of Trustees, Jack Brunson, requesting her participation on a seven-member committee to develop plans and guidelines for conducting future presidential searches. Labbe said the letter also stated that "a meeting will be scheduled in the near future for the purpose of discussing the committee's charge and how it should be carried out." Dr. Labbe also said she received a letter on August 25 from Trustee Herman Thomas requesting her to serve on a committee to develop a long-term vision for the university. Dr. Labbe said the letter from Trustee Thomas is similar to the one from Trustee Brunson in that committee members are named but no meeting has been scheduled.


In a letter dated August 18 to Ms. Tucker of USA, Ms. Miller said that the Justice Department is satisfied of USA's commitment to the objectives of equal employment opportunity. "Accordingly, we have determined that no further action is warranted," Ms. Miller stated.

In another letter also dated August 18, Ms. Miller informs me "The University has assured us that it is developing a process for selecting future Presidents, and has appointed a team representing the various groups of the University Community to develop procedures and guidelines. Based on our review, the United States has determined that no further action is warranted. This does not foreclose any individual who feels they have been discriminated against from seeking relief under Title VII of the Civil Rights from the Equal Employment Opportunity Commission."

Last week, in response to the question concerning why she is interested in who contacted the Justice Department rather than the validity of the issue, Ms. Tucker said it was out of "curiosity" and "my own inexperience" in handling such matters, and there was no "nefarious" reason why she asked Pauline Miller for the name of the individual who contacted the Justice Department.


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