Procedural Asymmetry: Dr. Bradley Foerster Directly Challenges Outside Counsel Daniel Tukel’s Role in His 5.09 Proceedings — No Reply Reflected in the Record (2019)

Academic Freedom, Tenure, and Faculty Governance

Tenure is not simply a form of job security. It is an institutional safeguard for academic freedom, protecting the independence of faculty scholarship, teaching, professional judgment, and participation in university affairs.

For that reason, dismissal of a tenured faculty member is not an ordinary employment matter. The University of Michigan’s Senate Advisory Committee on University Affairs (SACUA) placed faculty governance at the center of the 5.09 process: hearings were to be “fair to all parties,” Bylaw 5.09 procedures were to be followed, and dismissal was to be considered from the “faculty perspective of academic freedom” under a “clear and convincing” standard of proof.

SACUA addressed administration-side legal representation in expressly conditional terms:

“In those cases where the faculty member has retained an attorney to represent him or her in the 5.09 proceedings, the Office of the General Counsel will represent the administration during the proceedings.”

The SACUA Overview document expressly describes administration-side legal representation when the affected faculty member has retained an attorney. It does not identify a corresponding provision when the faculty member is unrepresented.

Dr. Bradley Foerster did not retain an attorney. He represented himself. Nevertheless, experienced outside employment counsel Daniel Tukel represented Dean Marschall Runge and the administration during the proceedings.

The distinction went beyond lawyer versus non-lawyer. The substantive judgment remained with the faculty: the Tenure Committee was an “academic committee comprised of peers,” SACUA was responsible for ensuring hearings were “fair to all parties,” and the framework expressly incorporated the “faculty perspective of academic freedom.”

May 26, 2019: Challenging the Inclusion of Outside Counsel in the 5.09 Process

On May 26, 2019, after discovering the SACUA Overview document, Dr. Foerster wrote directly to Mr. Tukel challenging his role as outside counsel representing Dean Runge and the administration in proceedings in which Dr. Foerster had represented himself. Dr. Foerster copied SACUA outside counsel Angela Jackson and Bruce Wallace of Hooper Hathaway on the letter.

Mr. Tukel had previously told Dr. Foerster:

“I am representing the University with regard to the dismissal proceedings which have been initiated.”

Dr. Foerster compared that statement with the newly discovered SACUA Overview document, noted that he had represented himself and had not retained an attorney, and asked Mr. Tukel to “explain and justify” his role.

The letter went further. Dr. Foerster questioned the Section 4 versus Section 5 process, including whether the full SACUA body had received the initiating materials contemplated by the Overview document. SACUA itself noted that there may be “more inherent due process under Section 5” because college executive committees lack separate oversight. Dr. Foerster also challenged Mr. Tukel’s position on the standard of proof, pointing to SACUA’s guidance concerning “clear and convincing” proof and asking Mr. Tukel to amend his May 1 statement concerning the absence of an identified threshold standard in the Bylaw and Ad Hoc Committee report.

The letter also directly challenged Mr. Tukel’s response to Dr. Foerster’s attempts to clarify the rules governing the hearings. The SACUA Overview document stated that both parties, or their attorneys, should be allowed to “develop questions to clarify the rules of procedure before the proceedings” and that the procedures “must afford due process.”

Dr. Foerster wrote that he had repeatedly asked Mr. Tukel to clarify the rules of procedure during the Ad Hoc Committee hearings. According to the May 26 letter, Mr. Tukel instead asserted the University’s position that “the dismissal hearings were conducted appropriately and in accordance with Regents Bylaw 5.09” and repeatedly refused Dr. Foerster the opportunity to develop “questions to clarify the rules of procedure.”

The letter also addressed the scope of witness testimony and treatment of hearsay evidence. Dr. Foerster wrote that he had identified his own character witnesses but had not received the scope of testimony expected from the administration’s witnesses. He also questioned how the Ad Hoc Committee assessed and weighed hearsay evidence.

Dr. Foerster also addressed the mass-email dissemination allegation. He documented that he had repeatedly requested the IP-address evidence linking those communications to him, but that Mr. Tukel had not provided it. Dr. Foerster had denied under oath that he sent the emails.

The IP-address issue later became consequential: in his June 17, 2019 dismissal recommendation , President Mark Schlissel cited Dr. Foerster’s denials that he had “broadly disseminated” allegations as part of his credibility assessment.

The May 26 letter closed by bringing these procedural questions back to the purpose of the 5.09 process itself.

Dr. Foerster distinguished the tenure-dismissal proceeding from ordinary litigation, writing that the hearings were not simply about proving someone “innocent or not guilty, liable or not liable,” but were part of a process intended “to get to the truth of the matter as best as possible.”

Dr. Foerster then quoted a central principle of SACUA:

“Principles of due process are an essential component of a transparent and democratic system of shared governance in higher education.”

Against that principle, and Mr. Tukel’s close involvement in the proceedings, Dr. Foerster asked whether Mr. Tukel still stood by his earlier position that “the dismissal hearings were conducted appropriately and in accordance with Regents Bylaw 5.09” and that he disputed claims to the contrary.

Dr. Foerster then returned to the question at the center of the letter:

“I would also ask you to clarify under what provision of the Bylaws you were actually authorized to act as the University representative in this process…”

The documentary record reviewed for this post reflects no subsequent response from Mr. Tukel answering the May 26 letter.

May 26, 2019 Letter to Daniel Tukel

The complete May 26, 2019 letter from Dr. Bradley Foerster to Mr. Tukel is reproduced below.

Selected Reporting

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Brad Foerster, MD PhD

Brad Foerster is a FOIA advocate documenting requests, transparency disputes, and accountability investigations involving public agencies, universities, police oversight, and Russia-Gate related inquiries. His work compiles original documents, timelines, and analysis of public records and institutional responses. Brad is also a board-certified radiologist, author of Town & Gown, and has published over 40 peer-reviewed articles. Brad lives in Potomac, Maryland with his family and is a member of the Montgomery County Medical Society and the Takoma Park U.S. & World History Book Club.