APPENDIX D.
TENURE AND PROMOTION POLICIES AND PROCEDURES
OF
VI. Due Process Before Discharge or
Imposition of Serious Sanction
A. Penalties
A faculty member who is the beneficiary of
institutional guarantees of tenure shall enjoy protection against unjust and
arbitrary application of disciplinary penalties. During the period of such guarantees, the
faculty member may be discharged or suspended from employment or diminished in
rank only for reasons of incompetence, neglect of duty, or misconduct of such a
nature as to indicate that the individual is unfit to continue as a member of
the faculty. These penalties may be imposed only in accordance with the
procedures prescribed in this section.
For purposes of these
regulations, a faculty member serving a stated term
shall be regarded as having tenure until the end of the term. These procedures shall not apply to
non-reappointment (Section V) or termination of employment (Section VII).
B. Notice
Written notice of intent to discharge or to suspend
from employment or to diminish in rank (these penalties hereinafter in Section
VI are referred to as "the penalty") shall be sent by the vice
chancellor with supervisory authority or by the vice chancellor's designee to
the faculty member by a method that
provides delivery verification and is consistent with UNC Policy 101.3.3. The statement shall include notice of the
faculty member's right, upon request, to both written specification of the
reasons for the intended penalty and a hearing by the Due Process Committee
(Section VI.E.). (
C. Penalty
Without Recourse
If, within 10 working days after the faculty member
receives the notice referred to in Section VI.B. above, the faculty member
makes no written request for either a specification of reasons or a hearing,
the faculty member may be penalized without recourse to any institutional
grievance or appellate procedure.
D. Specification
of Reasons and Hearing Request
If, within 10 working days after the faculty member
receives notice referred to in Section VI.B. above, the faculty member makes a
written request to the vice chancellor with supervisory authority, method that provides delivery verification
and is consistent with UNC Policy 101.3.3, for a specification of
reasons, the vice chancellor with supervisory authority or the vice
chancellor's designee shall supply such specification in writing by a method that provides delivery verification
and is consistent with UNC Policy 101.3.3, within 10 working days after
receiving the request.
A faculty member's request for a hearing is to be
directed to the vice chancellor with supervisory authority in writing by a method that provides delivery verification
and is consistent with UNC Policy 101.3.3. Upon receipt of such a
request the vice chancellor with supervisory authority shall, within ten
working days, notify the chair of the Due Process Committee of the need to
convene a hearing in accordance with Section VI.F.1. If the faculty member makes no written
request to the vice chancellor with supervisory authority for a hearing within
10 working days after receiving the specification, the faculty member may be
penalized without recourse to any institutional grievance or appellate
procedures. (
E. Due Process
Committee
The Due Process 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
When the committee is convened to consider any matter
associated with a faculty member's request for a hearing, those committee
members who hold an appointment in the faculty member's academic unit, those
who might reasonably expect to be called as witnesses, 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 faculty member and the vice chancellor
with supervisory authority 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 membership of the committee falls below the
specified five members and five alternates, the
Upon notification by the vice chancellor with
supervisory authority or the vice chancellor's designee that a faculty member
has requested 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 (see Part XI of the ECU
Faculty Manual, UNC Code, Section 603). 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.)
F. Procedures
for the Hearing
1. Time
and Date of Hearing
The Due Process Committee shall set the time, date,
and place for the hearing. The date for
the hearing must be within 30 working days of the time the committee receives
the vice chancellor with supervisory authority's notification of the faculty
member's written request for a hearing.
The committee shall notify the affected faculty member, the vice
chancellor with supervisory authority, and the chair of the faculty of the
time, date, and place of the hearing.
The committee may, upon the faculty member's written request and for
good cause, postpone the date of the hearing by written notice to the faculty
member.
2. Conduct
of Hearing
The hearing shall be on the written specification of
reasons for the intended penalty. The
chair of the Due Process 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 faculty member requesting the hearing,
counsel for the faculty member, the vice chancellor with supervisory authority,
and counsel for the vice chancellor. 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. (Faculty Senate Resolution #03-37)
The hearing shall begin
with an opening statement by the hearing chair limited to explaining the
purpose of the hearing and the procedures to be followed during the
hearing. Following the opening remarks
by the hearing chair, the vice chancellor with supervisory authority or his/her
counsel shall present the university's contentions and any supporting witnesses
and documentary evidence. The faculty
member or the faculty member's counsel may then reply and present any
supporting witnesses and documentary evidence.
During these presentations, the vice chancellor with supervisory
authority or his or her counsel, and the faculty member or his or her counsel,
may cross-examine opposing witnesses. Committee
members may question witnesses for purposes of
clarification. At the conclusion
of the hearing, the faculty member and then the vice chancellor with
supervisory authority will be given the opportunity to provide summary
statements. (Faculty Senate Resolution #99-10)
G. 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. In reaching its decisions the committee shall
consider only the testimony and other materials entered or presented as
evidence during the hearing.
Within 10 working days of finishing its deliberations
the committee shall provide the faculty member and the chancellor with a copy
of its report, including materials entered as evidence, and a copy of the court
reporter's transcript of the hearing. In
its report the committee shall state whether or not it recommends that the
intended penalty be imposed.
(
In reaching a decision, the chancellor shall consider
only the written transcript of the hearing and the report of the Due Process
Committee. Within 30 working days of
receiving the report, the chancellor's decision shall be conveyed in writing to
the Due Process Committee and the affected faculty member by a method that provides delivery verification
and is consistent with UNC Policy 101.3.3.
H. Appeal
If the chancellor concurs in a recommendation of the
committee that is favorable to the faculty member, the decision shall be
final. If the chancellor rejects a
finding, conclusion, or recommendation of the Due Process Committee, the
chancellor shall state the reasons for doing so in a written decision. If the
chancellor either declines to accept a Committee recommendation that is
favorable to the faculty member or concurs in the committee recommendation that
is unfavorable to the faculty member, the faculty member may appeal the
chancellor's decision to the Board of Trustees.
This appeal shall be transmitted through the
chancellor and shall be addressed to the chair of the Board. Notice of appeal shall be received by the
chancellor within ten working days after the faculty member receives the
chancellor's decision. The appeal to the
Board of Trustees shall be decided by the full Board of Trustees; however, the
Board may delegate the duty of conducting a hearing to a standing or ad hoc
committee of at least three members.
The Board of Trustees, or its committee shall
consider the appeal on the written transcript of the hearing held by the Due
Process Committee, but it may, in its discretion, hear such other evidence as it deems necessary, with
the opportunity for rebuttal. The Board
of Trustees' decision shall be made within 45 working days after the chancellor
has received the faculty member's request for an appeal to the Trustees.
This decision shall be final except that the faculty
member may, within ten days after receiving the trustees' decision, file a
written petition for review with the Board of Governors if he or she alleges that
one or more specified provisions of the Code of The University of North
Carolina have been violated. Any such petition to the Board of Governors shall
be transmitted through the President, and the Board shall, within 45 working
days, grant or deny the petition or take such other action as it deems
advisable. If it grants the petition for
review, the Board's decision shall be made within 45 working days after it
notifies the faculty member by a method
that provides delivery verification and is consistent with UNC Policy 101.3.3,
that it will review the petition.
The exercise of the Board of Governors’ jurisdiction
is refined to insure that primary emphasis remains properly focused on the
campus grievance procedures. Requests
for appellate review will be screened to determine whether the Board should
consider the issues raised in a petitioner’s request for review. The following basic standards will guide that
screening process:
1. The Board will grant requests to review contentions that the
grievance procedures followed by the campus in a particular case did not
comport with University requirements that affect the credibility, reliability,
and fairness of such inquiries, thereby arguably depriving the grievant of a
valid opportunity to establish his or her contentions.
2. The Board will grant requests to review University policy issues
implicated by a particular grievance, when the question appears to require
intervention by the governing board to clarify the definition, interpretation,
or application of such policies.
3. The Board will review questions about the sufficiency of the
evidence to sustain the conclusion reached only if (a) the case involves a
substantial interest of the grievant, e.g., tenure or reappointment and/or (b)
the history of the case reveals disagreement, with respect to the sufficiency
of the evidence to sustain the grievant’s contentions, among the responsible
decision makers, i.e., the due process committee, the chancellor, or the board
of trustees[1];
if the responsible decision makers are in accord, normally no such appeal will
be entertained by the Board of Governors.
Under the foregoing prescriptions, it is necessary
for prospective petitioners to evaluate their circumstances carefully, to
understand the purposes of permissible appellate review, and to formulate
clearly and concisely their statement of the one or more grounds on which they
believe the Board should exercise its appellate jurisdiction. Thus, the first step in any appeal to the
Board of Governors will be an evaluation by the Board, through a designated
subcommittee, with staff assistance, of the grievant’s written statement of
grounds for appeal, to determine whether the issues sought to be raised warrant
Board attention, as judged by the three basic standards.
I. Suspension
During a Period of Intent to Discharge
When a faculty member has been notified of the
institution's intention to discharge the faculty member, the chancellor may
suspend the faculty member at any time and continue the suspension until a
final decision concerning discharge has been reached by the procedures
prescribed herein. Suspension during a period of intent to discharge shall be
exceptional and shall be with full pay and benefits.