UVU Statement Regarding Dr. Michael J. Shively Investigation: Annotated

Saturday, November 9, 2019 

UVU Statement Regarding Dr. Michael J. Shively Investigation
Annotated

Dr. Michael J. Shively was a full-time professor of biology in the College of Science at Utah Valley University (UVU). His death was a very sad event, and the University has reached out to his family with its sincere condolences. 

A UVU professor released an open letter about UVU’s investigation of Dr. Shively and allegations made against him.
Additionally, a statement for the UVU Chapter of the American Association of University Professors has been posted on their Chapter’s blog.

Over the past year, University leaders received numerous serious complaints about Dr. Shively from students, faculty, and others. 

The letter Mike Shively received on March 25, 2019, the day he was suspended, said that “We have received several complaints that you have engaged in the following misconduct. . . .” The UVU statement inflates “several complaints” to “numerous serious complaints.”

The University was obligated to investigate and to protect all who were involved and did so in accordance with UVU policy and applicable law.

Policy 648, the policy on faculty termination the administration relied on, is flawed in several ways and is currently being revised by the UVU Faculty Senate. Even so, the policy could have been interpreted and implemented in ways that would have afforded Mike Shively a more robust due process. Doing so would have given those of us who work at UVU a sense that fairness and care are as important as the “applicable law.”

Due to the nature and seriousness of the allegations, Dr. Shively was placed on paid non-disciplinaryadministrative leave (“suspension pending action”) per UVU Policy 648

The letter stated that Mike was “suspended with pay” . . . “(Suspension Pending Action).” The UVU statement adds, in italics: “paid non-disciplinary administrative leave.” The reason for this addition is that policy allows UVU to investigate without revealing names or details if the leave is non-disciplinary. The suspension and investigation certainly felt disciplinary to Mike.

UVU hired an experienced outside investigator and a separate external academic expert to review the allegations and to ensure a fair and objective process. 

The experienced outside investigator was a lawyer with no expertise to evaluate Mike’s teaching or grading. The external academic expert was a long-time adversary of Mike’s. That Mike’s textbook and teaching and grading practices were under investigation while he was suspended was an administrative overreach. Faculty have the academic freedom to teach their classes as they see fit, subject to periodic evaluations from their peers and not from administrators or investigating lawyers.

Dr. Shively was informed of the details of the allegations orally and in writing, including when he reviewed a draft of the investigation report. He also provided detailed verbal and written responses during the process.

Mike Shively was allowed to read a draft of the investigation four months after he was suspended. For some unexplained reason, his time with the report was limited to two hours. Until then, he was left to intuit the details of the allegations and the identities of the accusers from the questions asked during the ongoing interrogations.

Due to the number of allegations, complainants, and witnesses, and to ensure the process was thorough, independent, and allowed Dr. Shively to respond, the investigation took four months.

UVU took its time with the nearly five-month investigation. Mike, however, was required to meet strict deadlines with his responses. At one point he asked for a delay because he was hospitalized and was told that UVU had no obligation to allow that. 

The open letter referenced allegations made against Dr. Shively. The UVU investigation was in response to allegations that included the following, all of which would be violations of UVU policies and the UVU Code of Conduct:

[in what follows, note the changes from the original letter that announced Mike’s suspension]

improper financial gain from textbook royalties; 
“Requiring course books and receiving royalties in violation of . . .”

intimidation and bullying of students and colleagues; 
“ Intimidation and threat towards students and employees” was the original claim. Bullying is an easier standard to meet than threat, making this statement potentially more believable than would threat. An actual threat, as Professor Alex Simon has pointed out, would require involvement of the police.

violation of the academic freedom of colleagues; 
No change to this phrase. Note, however, that the claim that follows represents a violation of Mike’s own academic freedom to teach a course according to his professional sense for how best to do so.

arbitrary and capricious course requirements and grading practices, resulting in undue stress to students; 
Mike’s challenging anatomy classes indeed caused stress. Should he, then, have taught an easier course? In any case, this is the business of the Biology Department and not of administrative investigators. The single complaint that related to teaching was “Arbitrary and capricious course requirements and grading.” Why, then, was his book in question, and why was it sent to an outside evaluator, effectively lengthening the investigation that was already causing Mike severe distress.


discrimination; 
The original complaint was “Discrimination and harassment on the basis of protected class.” Why was the harassment claim dropped? Perhaps it was determined to be unfounded in the final report?

and retaliation.
There was no claim of retaliation in the letter that suspended Mike. The letter ended, as such letters do, with a warning against retaliation against any of the complainants.

Most of the allegations were substantiated.
This statement—a pdf of the updated file was published by the UVU Review—feels defamatory. Isn't UVU required to keep personnel information private? Did the report or the final decision really find this? Which of the allegations added up to a majority? The final report should be made public so we can see if this statement is in fact true.

The University had just completed its review of the findings of the investigation and was discussing next steps with Dr. Shively’s legal counsel when it learned of Dr. Shively’s passing.
Mike was suspended on March 25. He died on August 19, nearly five months later. He had been told that he would remain suspended into the Fall semester and thus could not have classes scheduled for him. He had not received word of any final decision. This statement suggests a possible settlement that never occurred.

As with any complaint of this nature against a tenured faculty member, had this matter moved to a formal disciplinary phase, UVU policy provides the right to a formal written charge, an informal conference with the University’s president or her designee, a hearing before a faculty committee, legal representation, and other due process protections.
This makes it clear that the listed due process protections (formal written charges, etc.) were not available during the course of the investigation. Why not? Remember the “fair and objective process” this statement averred at the beginning and that it comes back to in the next paragraph? This was anything but a fair and objective process.

UVU is committed to providing safety and fairness for all students, faculty, and staff. As such, the University follows a careful, thorough, and objective process when presented with allegations of misconduct.
In a meeting of members of the UVU AAUP Chapter earlier this week, faculty discussed four recent case histories of similar investigations, one lasting seven months, another an entire year. In each case, UVU counsel denied or skirted due process and exerted legal pressure on faculty who had no legal support of their own. Three of the cases ended with decisions favorable to the faculty (but without recognition of the enormous stress involved over long months) and one ended with UVU agreeing to settle the case with payments to the faculty member.

Addendum: since posting this and after the AAUP discussion of four recent cases, four additional members of the UVU staff or faculty have contacted AAUP members with similar stories: 1. accused, 2. investigated without having access to information necessary for their defense, 3. investigations that go on for months and even, in one case, a full year.

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