APPENDIX D.
TENURE AND PROMOTION POLICIES AND PROCEDURES
OF
V. Procedure for Appeal of Notice of Non-Reappointment or
Non-Conferral of Permanent Tenure
A. Deadlines for Appeals
Failure
to submit the appeals documents specified in this section within the time
periods allotted constitutes a waiver of the right to appeal the decision.
However, before the expiration of the deadline the faculty member may request
an extension, provided that the request is made in writing and presented to the
individual or committee who is next to consider the appeal. Within 10 working
days of receiving a request for extension, decisions on requests for extension
of time shall be made by the individual or committee who is next to consider
the appeal.
B. Request for Hearing
with the Faculty Hearing Committee
Within
25 working days of receiving written notice from the vice chancellor or
chancellor of non-reappointment or non-conferral of permanent tenure, a faculty
member (hereinafter, the complainant) may request a hearing before the Faculty
Hearing Committee.
1. The Hearing Committee
The
Hearing Committee shall be composed of five members and five alternates each of
whom is a full-time, permanently tenured voting faculty member without
administrative appointment. Members
shall be elected in accordance with the procedures for election of appellate
committees specified in the Bylaws of the East Carolina University
Upon
organization, the members of the Hearing Committee shall elect a chair and a
secretary. The
members of the committee are to be
appropriately trained in accordance with guidelines and procedures jointly
established by the faculty officers and chancellor. Should any committee officer be absent at the beginning of a hearing, the
committee shall elect an alternate officer for the purposes of the hearing. (Faculty
Senate Resolution #03-49)
When
the committee is convened to consider any matter associated with a complainant's
request for a hearing, those committee members who hold an appointment in the
complainant's academic unit, those who might reasonably expect to be called as
witnesses, those who might reasonably expect to be asked to serve as advisors
(see Section V.D.2, Conduct of the Hearing) to any party of the hearing, or
those who may have any other conflict of interest should disqualify themselves
from participation in the activities of the committee related to this specific
request for a hearing. The complainant
and those individuals or groups who are alleged to be responsible for the
action or actions described by the complainant in the request for the hearing
(hereinafter, the respondents) are permitted to challenge committee members for
cause. The other members of the
committee will decide on any potential disqualifications if a committee member
is so challenged but wishes to remain.
When,
between elections, membership of the committee falls below the specified five
members and five alternates, the chair of the faculty, in consultation with the
Committee on Committees, shall appoint members to the committee. Vacancies on the committee will be filled by
first moving alternates to members and by making appointments as alternates.
Upon
receipt of a request for a hearing, the chair of the committee shall determine
the availability of the elected members and alternates, and shall select from
those available one or more alternates, as necessary. The ranking of the available alternates for
selection shall be determined by their years of service to the University. That available alternate who is most highly
ranked shall attend all sessions of the hearing and shall replace a regular
member should that member be unable to attend the entire hearing.
The committee may at any
time consult with an attorney in the office of the University Attorney who is
not presently nor previously substantively involved in the matter giving rise
to the hearing, nor will advise the University administrator(s) following the committee
action(s). (See Part VIII, Responsibilities of Administrative Officers.)
2. Initiation of the Hearing Process
The
basis for a request for a hearing must be found in one or more of the following
reasons: (a) the decision was based on
any ground stated to be impermissible in Section 604B of The Code of The
University of North Carolina; (b) the decision was attended by a material
procedural irregularity.[1]
In addition, the University
Equal Employment Opportunity policy prohibits employment discrimination based
on sexual orientation.
Section
604B of The Code of The University of North Carolina states: “In no event
shall a decision not to reappoint a faculty member be based upon (a) the
exercise by the faculty member of rights guaranteed by the First Amendment to
the United States Constitution, or by Article I of the North Carolina
Constitution, or (b) the faculty member's race, sex, religion, national origin,
age, disability, or honorable service in the armed services of the United
States, or (c) personal malice.”
"Material
procedural irregularity" means a departure from prescribed procedures
governing reappointment and conferral of permanent tenure that cast reasonable
doubt upon the integrity of the original decision not to reappoint or
not to confer permanent tenure. Whether a material procedural irregularity
occurred shall be determined by reference to those procedures which were in
effect when the initial decision not to reappoint or not to confer permanent
tenure was made and communicated. The Hearing Committee shall ask the
chancellor to certify what procedures were then in effect if that question is a
matter of dispute. (Faculty Senate Resolution #03-49)
The
complainant's request for a hearing must specifically identify and enumerate
all reasons for the request. The request
must include (a) a description that is as complete as possible of the actions
or the failures to act which support each specified contention; (b) the
identification of the respondents; (c) an enumeration and description of the
information or documents which are to be used to support the contention (copies
of the described documents are to be made a part of the request for a hearing);
(d) the identification of persons who may be willing to provide information in
support of the contention; and (e) a brief description of the information those
persons identified in (d) may provide. The complainant's request for a hearing
shall be made to the chair of the Hearing Committee.
C. Validation of the Request for Hearing.
Validation
of the complainant's request for a hearing is the first step in the hearing
process. The Hearing Committee shall
convene within 15 days after receipt of the complainant's request for a
hearing. The committee shall notify the
complainant of the meeting date by a method that provides delivery verification
and is consistent with UNC Policy 101.3.3.
The committee shall meet in executive session and the meeting will be
conducted according to the latest edition of
Robert's Rules of Order, Newly Revised.
The committee's evaluation of the complainant's request for a hearing
shall be limited solely to the documents and information submitted as part of
the complainant's request for a hearing.
The complainant may submit
additional documentation and information supporting the request for a hearing
up to 72 hours prior to the committee meeting.
All documentation and information submitted after the original request
for a hearing must (a) support contentions set forth in the original request
for a hearing and (b) be delivered to the chair in the same manner as the
original request for a hearing. Such
information or documentation shall be made a part of the original request for a
hearing.
Documentation
and information that do not meet criteria set forth in the previous paragraph
will not be accepted and will be returned to the complainant.
The
Hearing Committee's review of the complainant's request for a hearing shall be
limited solely to determining whether the facts alleged by the complainant, if
established, would support the contention that the decision not to reappoint or
not to confer permanent tenure was based upon any of the grounds stated as
impermissible in Section 604B of The Code of The University of North Carolina
or was attended by a material procedural irregularity. Based on their review and evaluation of the
submitted material, the committee shall decide whether the request for a
hearing is to be validated.
If
the request for a hearing is not validated, the complainant shall be notified
by a method that provides delivery verification and is consistent with UNC
Policy 101.3.3, within 10 calendar days of the committee meeting. Such a determination confirms the decision
not to reappoint or not to confer permanent tenure. (Faculty Senate Resolution #99-4)
The
complainant may accept the decision of the Hearing Committee not to validate or
appeal to the chancellor within 10 calendar days of receipt of the Hearing
Committee's decision. The chancellor, within 14 days of the complainant's
appeal shall decide to confirm the committee's decision or shall support the
complainant's request for a hearing. (
The
complainant may accept the chancellor's confirmation of the committee's
decision not to validate the request for a hearing, or the complainant may
appeal to the Board of Governors within 10
calendar days following receipt of the Chancellor’s decision. (
If
the committee validates the request for a hearing, or the decision not to
validate the request for a hearing is not supported by the chancellor, the
committee shall so notify the complainant by a method that provides delivery
verification and is consistent with UNC Policy 101.3.3 and begin the processes
necessary to set the time and date for the hearing.
D. Procedures for the Hearing.
1. Time and Date of Hearing
If
the request for a hearing is validated, the committee shall provide a complete
copy of the request for a hearing to
the individuals named in the request for a hearing. The committee shall set the
time, date, and place for the hearing.
The date for the hearing must be within 30 working days of the
notification to the complainant that the request for a hearing was validated. The committee shall then notify the complainant,
the respondents, the chair of the faculty, and the chancellor, of the time,
date, and place of the hearing. At least
15 working days before the hearing, the complainant shall notify the committee,
the respondents, the chair of the faculty, and the chancellor of the identity
of the complainant’s advisor, if any, and whether or not the advisor is an
attorney. (“Attorney” is defined as anyone with a Juris Doctor, or other
recognized law degree, regardless of whether or not that person is licensed to
practice law in the State of North Carolina and/or whether or not that person
is “representing” the employee).
2. Conduct of the Hearing
The
chair of the Hearing Committee or an elected member of the committee if the
chair is unavailable, is responsible for conducting the hearing and for
maintaining order during the hearing.
Except as provided for herein, the hearing shall be conducted according
to the latest edition of Robert's Rules
of Order, Newly Revised. Attendance
at the hearing is limited to the committee's members and alternates, the
complainant, one person who may advise the complainant but who may not take an
active part in the proceedings, the respondents, an East Carolina University
faculty member (with or without administrative appointment) selected by the
chancellor to represent the respondents
in the conduct of the hearing, an East Carolina University attorney who shall
advise the respondents and their representative but who may not take an active
part in the proceedings, the chancellor, and an East Carolina University
attorney representing the chancellor, who may advise the chancellor but may not
take an active part in the proceedings. Other persons (witnesses) providing
information to the committee shall not be present throughout the hearing, but
shall be available at a convenient location to appear before the committee as
appropriate. For any hearing from which
an appeal may be taken, a professional court
reporter must be used to record and transcribe the hearing. (
Any such record is a part of the personnel inquiry and must be treated
with appropriate confidentiality. Only the immediate parties to the
controversy, the responsible administrators and attorneys, and the members of
the University governing boards and their respective committees and staff are
permitted access to such materials.
(Faculty Senate Resolution #03-49)
The
hearing shall begin with an opening statement by the committee member chairing
the hearing. This statement shall be
limited to explaining the purpose of the hearing and the procedures to be
followed during the hearing. The hearing
chair explicitly will note that the committee shall consider only information
bearing on the allegations presented in the complainant's request for the
hearing.
Following
the opening remarks by the hearing chair, the complainant shall present his or
her contentions and any supporting witnesses and documentary evidence. The
respondent(s), through their representative, may then reply to these contentions
and present any supporting witnesses and evidence. During these presentations,
the complainant, and the respondent(s), through their representative, may
cross-examine opposing witnesses. Committee members may question witnesses for
purposes of clarification. At the
conclusion of the hearing, the complainant and then the respondent(s) will be
given the opportunity to provide summary statements.
E. Procedures After the Hearing
After
the hearing, the committee shall meet in executive session and begin its
deliberations or shall adjourn for no more than two working days, at which time
it shall reconvene in executive session to determine whether it sustains or
does not sustain the allegations stated in the request for the hearing. In reaching its decisions the committee shall
consider only the testimony and other materials entered or presented as
evidence during the hearing. The complainant shall have the burden of proof by
the greater weight of the evidence to establish that a basis for his or her contentions
is found in one of the reasons listed in Section V.B.2. Initiation of Hearing.
Within
10 working days of finishing its deliberations the committee shall provide the
complainant, respondents, and the chancellor with a copy of the committee's
report and a copy of the court reporter's transcript of the hearing. (
If
the Hearing Committee determines that the complainant's contention has not been
established, it shall, by simple, unelaborated statement, so notify the complainant,
the respondents, the chair of the faculty, and the chancellor. Such a determination confirms the decision
not to reappoint or not to confer permanent tenure.
If
the Hearing Committee determines that the complainant's contention has been
satisfactorily established, it shall notify the complainant, the respondents,
the chair of the faculty, and the chancellor by written notice and shall
recommend further substantive review.
Within 30 working days
after receiving the recommendation of the Hearing Committee, the chancellor
shall notify the complainant, the respondents, the chair of the faculty, and
the chair of the Hearing Committee what further substantive review, if any,
will be made of the original decision not to reappoint or not to confer permanent
tenure.
If the chancellor is considering taking
action inconsistent with the committee’s recommendations, the chancellor shall
request that a joint meeting with the committee occur within 10 working
days. At the joint meeting, the
chancellor will communicate his or her concerns and the committee will have an
opportunity to respond. The joint
meeting must occur within the 30 working day period in the preceeding
paragraph. The chancellor must base his
or her decision on a thorough review of (1) the record evidence from the
hearing and (2) the report of the committee.
While the chancellor should give deference to the advice of the faculty
committee, the final campus-based decision is the chancellor’s.
The chancellor will inform the complainant
of his or her decision in writing by a method that produces adequate evidence
of delivery. In the event of an adverse decision, the chancellor's notice must
inform the complainant: (1) that, within 10 calendar days of the
complainant's receipt of the decision, the complainant may file a notice of
appeal with the president requesting review by the Board of Governors in
accordance with the Board of Governors Policy 101.3.1, (2) that a simple
written notice of appeal with a brief statement of its basis is all that is
required within this ten-day period, and (3) that, thereafter, a detailed
schedule for the submission of relevant documents will be established if such
notice of appeal is received in a timely matter. (Faculty Senate Resolution
#03-49)