Report of the Faculty Advisory Board in the matter of Professor Adolf Pfefferbaum
The Advisory Board of Stanford University, a seven-person panel elected by the entire faculty, recommends that Dr. Adolf Pfefferbaum, Professor of Psychiatry and Behavioral Sciences, be suspended without salary for three years, and fined $20,000. Stanford's president Gerhard Casper had asked for Professor Pfefferbaum's dismissal from the faculty on the grounds of neglect of duty. This followed Professor Pfefferbaum's self-imposed retirement from his long-term post at the Palo Alto Veterans Administration Hospital, and his demands for a position on the main campus. The VA had guaranteed Professor Pfefferbaum's salary, and was where he was expected to carry out his teaching and research. Professor Pfefferbaum blamed his retirement on administrative interference with his research program at the VA, amounting to abuse of his academic freedom, but extensive hearings did not support these claims.
The Board agrees that Professor Pfefferbaum's actions were a serious breach of academic duty, incompatible with reasonable administrative efforts to staff and fund the Medical School, and that these actions warrant a severe penalty. However, it has decided against the ultimate penalty of dismissal because of mitigating factors that include Professor Pfefferbaum's distinguished career and his record of service to the Stanford Psychiatry community.
On May 2, 1997, President Casper charged Dr. Adolf Pfefferbaum, Professor of Psychiatry and Behavioral Sciences in the Stanford School of Medicine, with "neglecting the academic duties that he has undertaken to perform within the University" in violation of Section I, Paragraph 2 of the Statement on Faculty Discipline. According to the President, Professor Pfefferbaum abandoned his Stanford Medical School academic assignment at the Palo Alto Veterans Administration Medical Center (PAVAMC) when on July 1, 1996, he retired as a Veterans Administration (VA) physician, thereby making impossible the discharge of his academic assignment. President Casper proposed that the sanction should be dismissal from the Stanford faculty. Professor Pfefferbaum requested a hearing before the Faculty Advisory Board, which under the Statement on Faculty Discipline has jurisdiction to decide whether the charge should be sustained and, if so, what sanction is appropriate.
The Board received written statements from and conferred with both parties, referred disputed factual questions to a Hearing Officer for resolution, and has heard final written and oral arguments from President Casper and Professor Pfefferbaum. We now issue our conclusions and decision.
Our report is divided into three parts. In Part I, we sketch the background of the case, state the facts directly bearing on the President's charge against Professor Pfefferbaum, and describe the course of our own proceedings, including our own early resolution of certain issues in the case, the resolution of contested factual questions by the Hearing Officer, and the final hearing before the Board. In Part II, we discuss the considerations that led us to our central conclusions. In Part III, we state our resolution of the case.
PART I: BACKGROUND, FACTS, AND PROCEEDINGS
Under the arrangement between Stanford Medical School and the PAVAMC, Stanford medical faculty serve as attending and consulting physicians at the PAVAMC and train Stanford medical students and residents there, while serving as VA employees and being paid for their services by the VA. These Stanford/VA faculty members have been appointed to the Stanford faculty on the assumption that most of their salary will be paid by the VA, and Stanford has not made separate budgetary provision for supporting them. Approximately one hundred Stanford Medical School faculty presently hold appointments under this arrangement, including about ten in the Department of Psychiatry.
Professor Pfefferbaum was appointed to the Medical School faculty in 1974 as an assistant professor in the Department of Psychiatry. He was promoted to associate professor with tenure in 1980, and to professor in 1986. The advertisement for the position to which he was hired in 1974 specified that he would work as a faculty member supervising students and residents and conducting research at the PAVAMC. With minor exceptions, he has served at the PAVAMC for his whole time on the Stanford faculty, between 1974 and 1996. During this time he has been a VA employee, and all or most of his salary has been paid by the VA, while since 1980 he has also been a tenured member of the Stanford faculty.
Over the course of his career, Professor Pfefferbaum's work has mostly come to involve medical research and teaching rather than direct psychiatric care of patients. In the last few years, as with other parts of the American health care system, including the health system at Stanford Medical Center on the main campus, the VA system has come under increasing pressure to increase efficiency and productivity. The VA has accordingly re-evaluated the scope of its commitment to the financing of medical education and research, and has increasingly insisted that staff physicians at all university-affiliated VA hospitals increase their time commitment to direct patient care. In addition, in light of uncertainties about the long-term commitment of the VA system to medical education and research, Stanford Medical School has, since about 1994, appointed new Stanford/VA joint faculty on a coterminous basis, meaning that their Stanford appointments are contingent on continued VA employment and financial support. These events provide the background for the dispute that led Professor Pfefferbaum to leave the VA in July of 1996.
Starting in late 1994, Professor Pfefferbaum and some of the other members of the Psychiatry faculty at the VA increasingly came into conflict with the PAVAMC administration. This conflict came to a head in February 1995 when Professor Pfefferbaum, along with two other Stanford/VA faculty members, met with the Dean of the Medical School to complain about the conduct of Dr. Richard Mazze, Associate Dean of the Medical School and Chief of Staff of the PAVAMC, toward the Stanford/VA Psychiatry faculty. After hearing the complaint and consulting Dr. Mazze and others, the Dean supported Dr. Mazze. Thereafter Dr. Mazze dismissed Professor Pfefferbaum from his VA administrative post as Deputy Chief of Staff (DCOS) for Psychiatry at the PAVAMC. Professor Pfefferbaum made this action the primary target of his first Stanford grievance, but he has since agreed that it was taken under VA authority, and did not by itself interfere with Professor Pfefferbaum's performance of his Stanford academic duties.
However, Professor Pfefferbaum claimed that Dr. Mazze took other actions which did make it unreasonable to expect him to carry out his academic duties while remaining a VA employee. Professor Pfefferbaum brought a number of Stanford grievances challenging his treatment at the PAVAMC,1 which are summed up in the grievance he brought to the Provost on December 11, 1995.2
The essence of the grievance was that Stanford had been insufficiently responsive to complaints by Stanford/VA faculty of their treatment at PAVAMC. In addition, Professor Pfefferbaum alleged a number of particular actions against him that, he said, impeded his ability to carry on his academic duties, and yet had not been remedied by Stanford when he had complained of them. The actions in question included removing him as DCOS and Assistant Dean, circulating negative VA personnel evaluations of his work beyond the VA, the allegedly false content of these negative evaluations, depriving him of research space, withdrawing support for his research associates, assigning him excessive patient care responsibilities,3 and improperly delaying necessary approval for his outside consulting activities.
In her letter denying the grievance, the Provost found that the particular actions complained of had been taken by VA administrators, were grievable within the VA, and as such fell outside the scope of Stanford's grievance policy. She concluded that the complaints "relating generally to the relationship between the VA and the School of Medicine," and "the role the School should properly play . . . in the supervision of activities within the VA" were not properly addressed through a procedure that was designed for "the grievances of individual faculty members, as opposed to broader policy or institutional concerns." She noted that general concerns about the Stanford/VA relationship, including those raised by Professor Pfefferbaum, would be addressed by a commission which the new Dean of the Medical School was establishing for that purpose.
In response to what he perceived as the inhospitable environment for him at PAVAMC, Professor Pfefferbaum requested reassignment to the main Stanford University Medical Center (SUMC) during 1995-96, but this was denied on the ground that the Psychiatry Department's programmatic need for his services continued to be at the PAVAMC. Consequently, after being told through his attorney that leaving the VA would be treated as resignation of his Stanford faculty position, and after a subsequent failed attempt at mediation of the dispute, Professor Pfefferbaum retired as a VA employee effective July 1, 1996.
The Provost then informed Professor Pfefferbaum that unless he either sought reinstatement at the VA or took emeritus status at Stanford, he would be regarded as having resigned his Stanford faculty position. Professor Pfefferbaum responded that he had not intended to resign his Stanford position; that he was willing to continue in his academic work, chiefly research, and could do so physically at the PAVAMC if necessary; but that he would not continue as a VA employee. He also requested payment of his full salary by the Medical School. By letter of August 31, 1996, the President informed Professor Pfefferbaum that, since he had not returned to the VA, his Stanford appointment was terminated.
Professor Pfefferbaum then brought suit in California Superior Court claiming that his retirement from the VA did not by itself constitute resignation of his Stanford faculty position, as the University Administration had contended. The court agreed that he had not resigned from Stanford, but rather had been dismissed, and ordered his reinstatement to the Stanford faculty, pending a hearing before the Advisory Board on charges brought by the President under the Policy on Faculty Discipline. After further attempts to negotiate or mediate the dispute, all unavailing, President Casper, by letter dated May 2, 1997, brought the charges against Professor Pfefferbaum that are the subject of these proceedings.
1. From the Charge to the Evidentiary Hearing
Professor Pfefferbaum requested a public hearing before the Advisory Board on the charges brought by the President, as is his right under the Statement on Faculty Discipline. He filed his statement of defenses on May 16, and the University filed a response on May 23. The Board and its counsel met privately with Professor Pfefferbaum, his counsel, and counsel for the President on May 19 and May 28,4 and we received written submissions and heard oral argument. The main purpose of these meetings was to clarify the issues in dispute, and to decide if there were any contested material questions of historical fact that needed to be resolved at an evidentiary hearing.5
After hearing from the parties and considering the charge, defenses, and response, we made a number of preliminary determinations which we stated in our letter to the parties of July 11, 1997. First, we decided that Professor Pfefferbaum's situation was to be distinguished from that of Stanford/VA faculty hired in recent years on a coterminous basis. Stanford's Policy on Terms and Conditions of Academic Appointment provides: "The precise terms and conditions of every academic appointment shall be stated in writing and be in the possession of both the University and the appointee before the appointment is consummated." However, at least until recently, the general practice at Stanford has been that few if any explicit terms and conditions of appointment have been put in writing. Consistent with this practice, Professor Pfefferbaum was appointed to the Medical School faculty with the understanding that he would be assigned to work at the PAVAMC and would be paid as a VA employee, but this understanding was not incorporated in his written contract. His academic appointment at Stanford was thus not, we decided, contractually coterminous with his VA employment, nor was it a term of his contract that he should work at the PAVAMC.6
Second, we decided that the main issue before us was whether Professor Pfefferbaum's retirement from the VA, if not supported by sufficient cause, constituted neglect of his academic duties. On this issue, Professor Pfefferbaum argued that whether or not he was a VA employee had to do only with who would pay his salary, Stanford or the VA, and that it was not one of his academic duties to assure that Stanford not be forced to bear this cost. The President argued that Professor Pfefferbaum was originally hired by Stanford to work at and for the VA and had done so for 22 years, and that although this was not a contractual term of his academic appointment, it was a reasonable academic assignment in 1996, as it had been throughout his term of service. Refusal of a reasonable academic assignment constitutes neglect of academic duties, and this was what Professor Pfefferbaum had done, so the President urged. Alternatively, the President argued that even if Professor Pfefferbaum's continued employment by the VA was not in itself one of his academic duties, his work at PAVAMC was, and his retirement from the VA had made it impossible for him to continue that work.
Third, we decided that if the President prevailed on the main issue, a second issue arose: whether Professor Pfefferbaum had in effect been driven out of the VA. Was it unreasonable to expect him, as a Stanford faculty member, to carry on his academic duties in the environment that existed for him at PAVAMC as a result of his dispute with Dr. Mazze and the PAVAMC administration?
Fourth, we decided that with respect to the question whether Professor Pfefferbaum was in effect driven out of the VA, only VA and Stanford conduct toward Professor Pfefferbaum would be relevant. This put out of the case Professor Pfefferbaum's claims relating to the treatment of other Stanford faculty by the VA administration, to the general state of mind of VA administrators, and to the wisdom of general policies followed by Stanford Medical School or the VA in conducting the Stanford-VA relationship.7
2. The Contested Issues of Fact
With the issues thus clarified, we decided that there were six material questions of historical fact whose resolution might be necessary for us to decide the case. Under the Rules for the Conduct of Hearings, disputed factual questions are to be settled at an evidentiary hearing conducted by a hearing officer, whose findings on them are final if supported by substantial evidence.
The first disputed factual question arose in connection with the main issue in the case, whether Professor Pfefferbaum's retirement from the VA amounted to abandonment of his academic post. When Professor Pfefferbaum retired, he sought permission to continue his work at the PAVAMC on a Without Compensation (WOC) basis. The VA eventually granted him WOC status, but only on a temporary basis, to conclude on November 15, 1996, for the purpose of allowing him to wind down and transfer his ongoing research projects.
In support of his contention that he did not abandon his academic post or neglect his academic duties, Professor Pfefferbaum argued that he could have continued doing exactly the same work as he had been doing all along at the PAVAMC if Stanford had agreed to pay his full salary, and had then persuaded the PAVAMC to continue him on WOC status indefinitely. The President responded that permanent WOC status for Professor Pfefferbaum was not a practical possibility; such status would have been unprecedented in a case like Professor Pfefferbaum's, and the PAVAMC would not have agreed to it even if Stanford had requested it.
Accordingly, the first factual question we posed to be answered at the evidentiary hearing was this:
1) Given past practice, the existing working relations between the two entities, and VA policy on WOC status, would PAVAMC have denied a request by the Medical School to let Dr. Pfefferbaum continue his work on a WOC basis at the PAVAMC following his retirement in July of 1996?
The other disputed factual questions related to Professor Pfefferbaum's contention that, even if it was within his academic duties to continue as a VA employee, the actions taken against him as a result of his dispute with the PAVAMC administration made it unreasonable and inconsistent with his Stanford faculty status to expect him to maintain that position. In connection with this argument, we discerned in Professor Pfefferbaum's Statement of Defenses five factual claims of possibly discriminatory or unreasonable treatment that were factually contested by the President. These related to Professor Pfefferbaum's research space, his staff support, his consulting opportunities, and the circulation beyond VA circles of a negative proficiency report and a negative counseling letter that VA administrators had given to Professor Pfefferbaum as a result of their dispute with him.
Accordingly, we posed the following five questions for determination at the evidentiary hearing:
2) Was Dr. Pfefferbaum's research space curtailed to a greater degree than could normally be expected to follow from his loss of his administrative post as DCOS?
3) Was Dr. Pfefferbaum's research staff curtailed to a greater degree than could normally be expected to follow from his loss of his administrative post as DCOS?
4) Was Dr. Pfefferbaum's ability to perform outside consulting services hindered by delay in VA approval that went beyond what could normally be expected?
5) Was Dr. Mazze's 1995 proficiency report concerning Dr. Pfefferbaum circulated beyond normal channels?
6) Was Dr. Mazze's counseling letter to Dr. Pfefferbaum concerning his interaction with Dr. Jerry Yesavage circulated beyond normal channels?
Finally, we placed on the President the burden of establishing his position on each of the contested factual questions by "highly persuasive evidence."8
Next, in accordance with the Rules for the Conduct of Hearings, we consulted the list of persons eligible to be Hearing Officers, and from that list on July 16, 1997, we nominated Professor Richard Marcus of the Hastings Law School of the University of California in San Francisco. Professor Marcus agreed to serve and both parties accepted his nomination, so he was appointed to conduct the evidentiary hearing.9
3. The Evidentiary Hearing and Factual Findings
As Hearing Officer, Professor Marcus administered extensive pre-hearing proceedings in which the parties sought information from each other, attempted to narrow and define factual issues, disputed the interpretation of the questions posed by the Board,10 and exchanged witness lists. After the pre-hearing process was finished, Professor Marcus took testimony on five days of actual hearing: December 1, 2, and 3, 1997; January 30, 1998; and February 13, 1998. Fourteen witnesses testified, including Professor Pfefferbaum.
Professor Marcus submitted his 88-page Final Report and Findings of Fact on March 2, 1998. He described in detail the proceedings before him, and on each of the six contested questions of fact summarized the evidence and made his finding. On all of the six questions, he found that the President had met his burden of proving by highly persuasive evidence that the facts were substantially as he had maintained, rather than as Professor Pfefferbaum had contended.
In short: on Question One, he found that Professor Pfefferbaum was not granted indefinite WOC status upon his retirement in July of 1996, and would not have been granted such status later had the University requested it. On Question Two, he found that Professor Pfefferbaum's research space was not substantially curtailed after March of 1995. On Question Three, he found that Professor Pfefferbaum was not treated differently from other doctors at PAVAMC in connection with reductions in his research staff. On Question Four, he found that there was some delay in approving Professor Pfefferbaum's request for permission to do outside consulting, but that this was the not the result of any bad faith or any intent to treat Professor Pfefferbaum differently. On Question Five, he found that VA administrators did not disseminate Professor Pfefferbaum's negative VA proficiency report, or substantially disseminate its contents, beyond usual channels. On Question Six, he found that VA administrators did share a negative counseling letter concerning Professor Pfefferbaum with Medical School personnel, and that this was not usual. He went on to find that the unique circumstances of the case made this explicable in the absence of any discriminatory intent, because of Stanford's strong and legitimate interest in the events underlying the counseling letter, which bore directly on the relationship between the Stanford Psychiatry Department and the Psychiatry Service at the PAVAMC.
After reviewing the record and considering Professor Marcus's careful and thorough analysis of the evidence bearing on the disputed questions of fact, we have decided that the findings are indeed supported by substantial evidence. We therefore consider these findings binding upon us.
4. The Final Hearing
After receiving the Hearing Officer's report and findings, we asked for and received briefs from the parties, and heard arguments at a public hearing before the entire Board on May 18, 1998. At the final hearing, Professor Pfefferbaum spoke on his own behalf, and also through his counsel, Mr. McCloskey. Dr. Eugene Bauer, Dean of the Stanford Medical School, spoke on behalf of the University administration, along with the President's counsel, Mr. Gould. We allowed Professor Pfefferbaum full latitude to give his version of the events and issues surrounding the case as he saw them, even when this went beyond the scope of argument upon the agreed facts and the facts found by the Hearing Officer.
The Hearing Officer's findings narrowed our focus in two important respects. First, his finding on Question One established that Professor Pfefferbaum could not, as he had contended, have continued doing his academic research and teaching at the PAVAMC on a Without Compensation (WOC) basis which is to say, while being paid by Stanford, rather than as a VA employee. Second, the findings on Questions Two through Six established that there were no concrete instances of discriminatory treatment of Professor Pfefferbaum in the conduct of his academic duties as a Stanford faculty member that resulted from his dispute with the PAVAMC administration.
As a result, our interest at the oral argument and in reading the briefs of the parties was almost entirely focused on what we had always regarded as the central question in the case whether it was reasonable for the Medical School to continue to assign Professor Pfefferbaum to work at the PAVAMC, as he had for the twenty-two years of his association with Stanford. More particularly, our interest focused on the question whether this assignment could be considered part of Professor Pfefferbaum's academic duties, so that his resignation, which prevented him from continuing to work at PAVAMC, could properly be considered neglect of those duties.
On this point, Professor Pfefferbaum's argument was to the effect that, even if no determinate acts of discrimination against him had taken place, there was a general failure on the part of Stanford Medical School to protect the rights of its faculty members assigned to the PAVAMC, including their rights of academic freedom and due process. He argued that this general failure rendered his decision to leave the VA reasonable, particularly in light of his own continued ability to attract grants that could finance the kind of research he had been doing at PAVAMC, and the possibility of his continuing this research at the main Medical School campus.
The President's position was that if Professor Pfefferbaum's arguments were accepted, he, along with the other one hundred or so Stanford/VA faculty members would be free at their own election to abandon their positions at the PAVAMC, and to require the Medical School to find space for them, and academic work for them to do, at the main Medical School campus. The President insisted that the University could not effectively function if faculty members employed elsewhere, like the Stanford/VA faculty, were effectively rendered "free agents" in this way. As long as there was programmatic need for their work at PAVAMC, so the argument ran, the Medical School could reasonably continue to assign faculty who had been hired on the understanding that they would work there to do so. A faculty member's failure to carry out such an assignment, absent particular justifying circumstances, constituted neglect of academic duties. The findings of the Hearing Officer made clear, so the President concluded, that there were no particular circumstances that justified Professor Pfefferbaum in regarding himself as an exceptional case.
We invited the parties to address in their briefs and arguments the question of what sanction would be proper, in the event that we sustained the President's charge against Professor Pfefferbaum. The President took the position that the logic of the situation made dismissal the only possible sanction. Professor Pfefferbaum had sought to have his academic assignment changed from PAVAMC to the main Medical School. After due consideration by the appropriate academic officers, this request had been denied. Professor Pfefferbaum had then resigned from the VA, making the continuation of his assigned work at PAVAMC impossible. If any sanction less than dismissal were imposed, the President argued, Professor Pfefferbaum would remain a medical school faculty member, and hence would have achieved his purpose of effecting his reassignment from the PAVAMC to some other duty within the Medical School, even though the programmatic need for his services continued to be at PAVAMC.
Professor Pfefferbaum reiterated his position that he had done nothing wrong, so that no sanction was appropriate. He indicated that he was not willing to accept any sanction less than dismissal. On his behalf, however, Mr. McCloskey argued that if the Board were to sustain the President's charge, Professor Pfefferbaum's career of distinguished service and his continued value as a teacher and researcher should be considered in mitigation of penalty. Mr. McCloskey also argued that Professor Pfefferbaum's decision to leave the VA was made in the good faith belief that his situation there had become intolerable, and that he remained willing to do the work (primarily research) which he had been doing before the dispute arose. That work constituted the core of his "academic duties," Mr. McCloskey urged, and the Medical School could as a practical matter find a way for him to continue doing that work even though he was no longer a VA physician.
PART II: DISCUSSION
At the core of this case is one, complicated question: What is the relationship between Professor Pfefferbaum's status as a tenured member of the Stanford faculty and his position as an employee of the Veterans Administration?
The Board quickly recognized that there are no absolute, unconditional answers to this question. Stanford professors who accept an assignment at the VA do not abandon their rights as members of the faculty; they retain the right, for example, to bring their concerns to the university administration and to expect that the university will protect their ability to carry out their academic duties. Moreover, non-coterminous faculty should expect that, if their positions at the VA are terminated, the university will seek to reassign them if that is possible. But while the university cannot evade its obligations to its faculty who are VA employees, it is also clear that faculty members who have accepted positions at the VA do not have the unconditional right to decide whether or not they wish to remain VA employees. They cannot, simply because it suits them, sever their faculty status from their VA employment and expect to be given a faculty position elsewhere in the university.
Although Professor Pfefferbaum sometimes seems to claim that he had an unconditional right to abandon his position at the VA, his entire case rests on the attempt to provide good and sufficient reasons for doing so. As he himself said at the end of his presentation to the Board on May 18, 1998: "I did refuse the salary source, for good reason." (104/8)
The case, therefore, has to do with reasons as well as rights and obligations. In reaching its decision, the Board had to determine if there were "good reasons" for Professor Pfefferbaum's refusal to remain a VA employee. Is there convincing evidence that he was subjected to individual and unjust retaliation because of his disagreements with Dean Mazze and other VA officials? Is there evidence that he was prevented from carrying out his academic duties? Most seriously of all, was his academic freedom violated?
In answering these questions the Board was guided by the findings of the Hearing Officer, who established that Professor Pfefferbaum's allegations of mistreatment were without foundation. The one overt action taken against him, his dismissal as DCOS, was, as he acknowledges, completely within the rights of the VA administration. The Board concluded, therefore, that the VA administration did not in any serious way inhibit Professor Pfefferbaum's ability to carry out his academic duties.
The Board also considered whether Provost Rice's refusal to hear Professor Pfefferbaum's grievances had made it impossible for him to remain in his VA position. We examined both of Professor Pfefferbaum's grievances: the first sent to Dean Bauer on May 9, 1995, and then to the provost on June 8, 1995, the second filed by Professor Pfefferbaum together with two colleagues on December 11, 1995. We found that the decisions not to hear these grievances conform to the rules on faculty grievance procedures set down in Chapter Four of the Faculty Handbook, which defines a grievance as "a complaint in writing made to an administrative officer of the university concerning a decision, made by a person or group of persons acting in an official university capacity, that directly or adversely affects the grievant as an individual in his or her professional academic capacity." The only decision concerning Professor Pfefferbaum that meets that definition was his removal as DCOS, which is manifestly a VA matter. But while Dean Bauer and Provost Rice certainly acted within the rules when they refused to hear these two grievances, we regret that the administration was not initially more receptive to the issues raised by Professor Pfefferbaum and his colleagues. There might well have been, the Board believed, missed opportunities to avoid this long and traumatic process.
According to Mr. McCloskey, the Provost's denial of Professor Pfefferbaum's grievance "opened the door to the very retaliation and coercion from which a Stanford faculty member is supposedly protected by the University's Statement on Academic Freedom." Because academic freedom is absolutely essential for a university's integrity and vitality, this is a very grave allegation, which should not be made without good reason. According to the University's Statement on Academic Freedom (see Chapter Four of the Stanford Faculty Handbook), academic freedom protects a faculty member from decisions that are made on the basis of "a person's political, social, or other views not directly related to academic values or to the assumption of academic responsibilities. . . ." Based on the Hearing Officer's investigations and our own reading of the evidence, we found no indication that decisions about Professor Pfefferbaum were made on the basis of his "political, social, or other views not directly related to academic values or the assumption of academic responsibilities."
In the end, after carefully examining all of Professor Pfefferbaum's charges and allegations, the Board concluded that he did not have good and sufficient reasons for retiring from his post at the VA. That Professor Pfefferbaum sincerely believes that he had "good reason" is not, in itself, sufficient. Nor does his willingness to continue to work at the VA on his own terms alter the fact that, by abandoning his funding source, he had voluntarily and knowingly created a situation in which he was ineligible (except for the brief period allowed by his temporary WOC status) to maintain the strong psychiatry research and resident teaching program that was his principal Stanford academic assignment. For this reason, the Board unanimously sustained the President's charge that in resigning his VA employment, Professor Pfefferbaum was guilty of neglecting his academic duties within the university.
While the Board reached its verdict quickly and with little disagreement, the question of sanctions turned out to be more difficult to resolve. An important source of difficulty was the fact that one reasonable outcome to the case, sending Professor Pfefferbaum back to the VA (perhaps with a fine and/or suspension), does not seem to be within the Board's power to impose. By retiring from the VA, Professor Pfefferbaum himself had effectively precluded this solution.
A minority of the Board believed that, since it seemed impossible to send Professor Pfefferbaum back to the position he had recklessly abandoned, the proper sanction was dismissal from the university. Anything short of dismissal, these members maintained, would end up granting him what he had sought from the start: a faculty position at Stanford outside of the VA. A majority of the Board, however, were reluctant to impose a sanction that would deprive Professor Pfefferbaum of his rights as a tenured member of the faculty. These Board members argued that while Professor Pfefferbaum was indeed guilty of abandoning his academic duties, there were mitigating circumstances. First, and most important, was his long career as a successful researcher and teacher. Second was the fact that however unwise Professor Pfefferbaum's actions may have been, his motives were not base or malicious. Finally, some Board members believed because the former leadership of the Medical School had been insufficiently responsive to Professor Pfefferbaum's original complaints, they must share some responsibility for the conflict that followed. Taken together, these circumstances surrounding the case made dismissal from the university seem to be an excessively harsh sanction. The Board's final decision, taken unanimously, was to impose a substantial fine, in order to underscore the seriousness of Professor Pfefferbaum's offense, and to suspend him for three years without salary from his position as a tenured member of the Stanford faculty.
PART III: DECISION
On the basis of the facts as found by the Hearing Officer, and for the reasons given in Parts I and II of this opinion, the Advisory Board concludes that Professor Adolf Pfefferbaum is guilty of "neglecting the academic duties that he has undertaken to perform within the University" in violation of Section I, Paragraph 2 of the Statement on Faculty Discipline. For the reasons given in Part II of this opinion, the Board concludes that Professor Pfefferbaum should be suspended without pay from the Stanford faculty for a period of three years commencing September 1, 1998, and should pay a fine of twenty thousand dollars.
June 18, 1998
Bradley Efron, Chair
Joanne Martin, Vice Chair
Gail A. Mahood, Secretary
George G. Dekker
William C. Reynolds
James J. Sheehan
Edward H. Shortliffe
1. Briefly, the history of Professor Pfefferbaum's grievances in the course of this dispute is as follows:
a) In May 1995, Professor Pfefferbaum filed a grievance within the Medical School, primarily against his dismissal as DCOS and the Assistant Deanship that went with that position. This was denied on the ground that there was no grievable action; the DCOS job was a VA position, to which the Assistant Deanship was automatically attached, and any grievance should be taken within the VA system. This decision was upheld on appeal by the Provost and the President.
b) In December 1995, Professor Pfefferbaum (along with two colleagues) brought the grievance to the Provost that is discussed in the text. Her denial of this grievance was appealed in March 1996 to the President, who first upheld her decision in April of 1996, and then (after the parties agreed to reinstate the appeal pending settlement negotiations) made his denial of the appeal final on August 29, 1996.
c) In August, 1996, Professor Pfefferbaum brought a grievance with the President protesting the decisions of the Provost and the Dean of the Medical School to treat his retirement from the VA as resignation from the Stanford faculty; this was denied.
d) In September, 1996, Professor Pfefferbaum brought a grievance with the Advisory Board protesting a number of aspects of his treatment. The Board found that it lacked jurisdiction to hear the grievance, relying on the Administration's legal determination that Professor Pfefferbaum had resigned and was no longer a member of the faculty. The Board suggested that some of his claims might well be grievable, and could be heard if he resumed his employment with the VA, and hence, as the Board then understood the matter, his Stanford faculty position.
2. Professor Pfefferbaum filed the December 11 grievance jointly with two other Stanford/VA Psychiatry faculty who had disputes with the PAVAMC Administration, and supplemented by addenda dated January 9 and February 27, 1996. We describe Professor Pfefferbaum's part of the grievance, and include the supplements in our account.
3. Professor Pfefferbaum has since withdrawn the claim, made in the January 9, 1996, addendum to his grievance, that his enhanced patient care assignment was improper.
4. Throughout the proceedings, counsel for Professor Pfefferbaum has been Paul McCloskey, Esq.; counsel for President Casper has been Eli Gould, Esq., of the firm of McCutchen, Doyle, Brown, and Enersen; and counsel for the Board has been Professor Thomas Grey of the Stanford Law School.
5. At this time, the Board also heard and granted Professor Pfefferbaum's motion for financial assistance to pay counsel, in the amount of $15,000, later augmented by an additional $10,000.
6. This means that if the VA should terminate financial support for the academic work of non-coterminous Stanford/VA faculty like Professor Pfefferbaum, the University would have the obligation to "make every effort" to reassign them to another faculty post, with termination allowed only if such reassignment turned out to be "impossible" (Statement of Policy on Terms and Conditions of Employment, VI, 5). The University does not have this obligation with respect to faculty with coterminous appointments.
7. Professor Pfefferbaum has throughout the proceedings contended that the President's Response was insufficiently responsive to his Statement of Defenses, in violation both of the Rules for the Conduct of Hearings and of his due process right to fair notice. The Statement of Defenses contained some 35 separate items, many of which related to claims outside the scope of the case as we understood it. We believe our characterization of the disputed issues fairly and accurately encompassed the thrust of Professor Pfefferbaum's relevant defenses, while excluding issues not properly before us, and that the President's Response gave Professor Pfefferbaum fully adequate notice of the President's position on the contested issues in the case.
8. The Rules place this burden on the President with respect to contested factual claims in the charge, but the President argued that, as is usual in civil cases, Professor Pfefferbaum should bear the burden of showing facts tending to establish his affirmative defenses. After consulting with our counsel, we determined that this proceeding should not be treated as an ordinary civil dispute, in which the procedural balance is symmetrical between the parties. Rather we believed that the imposition of the "highly persuasive evidence" standard showed the faculty's intent that in faculty discipline cases, the procedural balance should be struck with special solicitude for the interests of the faculty respondent. Accordingly we placed the "highly persuasive" burden on the President with respect to all contested factual issues, including those arising with respect to affirmative defenses.
9. Under the Rules, the parties have the right to challenge any hearing officer nominee for cause, and each party has the right to peremptorily challenge one nominee. Neither party chose to exercise this latter option with respect to Professor Marcus.
10. Professor Pfefferbaum appealed
Professor Marcus's ruling that with respect to Questions 2-6, he
was not to make a finding of fact on whether the actions of the VA
Administration were "retaliatory," but only whether they followed
the normal course. The Board affirmed Professor Marcus on this
point, ruling that the question of "retaliation" had evaluative
implications that required it to be answered by the Board itself
after hearing argument on the findings of fact, and was not a
question of "historical fact" for determination by the Hearing