Resolution
#09-11
Approved
by the
Approved by the Chancellor: pending
Approved by the Board of Trustees: pending
Approved by the UNC General Administration: pending
Revised ECU Faculty Manual,
Appendix D, Section V. Procedure for Review of Notice of Non-Reappointment or
Non-Conferral of Permanent Tenure, as follows: (Deletions are noted in strikethrough
and additions are noted in bold print)
“V. Procedure for Review Appeal
of Notice of Non-Reappointment or Non-Conferral of Permanent Tenure.
A. Deadlines for Appeal Review
Failure
to submit the review appeals documents specified in this section
within the time periods allotted constitutes a waiver of the right to have
the decision reviewed 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 Hearing
Committee. individual or committee who is next to consider the appeal.
Within 10 calendar working days of receiving a
request for extension, decisions on requests for extension of time shall be
made by the Hearing Committee. individual or committee who is next to
consider the appeal. The Committee will endeavor to complete the review
within the time limits specified except under
unusual circumstances such as when the time period includes official university
breaks and holidays and when, despite reasonable efforts, the Committee cannot
be assembled.
B. Request
for Hearing with the Faculty Hearing Committee
Within
25 calendar 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 (as per Appendix D, Section IV). 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. Because hearings in matters of non-reappointment or conferral of
permanent tenure can present complex and difficult questions of fact, policy
and law, and because of the central role of the committee in gathering and
preserving the evidence upon which most subsequent decisions related to the
matter will be based, it is important for the chancellor to ensure that faculty
committee members, as well as relevant administrators and aggrieved faculty
members, 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. (
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
membership of the committee falls below the specified five members and five
alternates, the
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 regular 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) regarding following the
committee action(s) during the review.
(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.[i]
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, color,
sex, religion, creed, national origin, age, disability, veteran’s status honorable service in the armed services of the
United States or other forms of discrimination prohibited under policies adopted by
campus Boards of Trustees, or (c) personal malice. For purpose of this section, the term ‘personal malice’ means dislike,
animosity, ill-will, or hatred based on personal characteristics, traits, or
circumstances of an individual.” (See UNC Policy 101.3.1.II.B for details)
"Material
procedural irregularity" means a departure from prescribed procedures
governing reappointment and conferral of permanent tenure that is of such
significance as to 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, and whether it is material, 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. (
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 and (f) a
copy of the vice chancellor’s notice of non-reappointment or non-conferral of
permanent tenure. The
complainant's request for a hearing shall be made to the chair of the Hearing
Committee and delivered to the
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 calendar 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 4 calendar days 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
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. (
The
complainant, within 10 calendar days of receipt of the Hearing Committee's
decision, may accept the decision of the Hearing Committee not to validate a
hearing or may appeal to the chancellor the decision not to conduct a
hearing. The chancellor, within 14 calendar 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, within 10 calendar days following receipt of the chancellor’s
decision, may accept the chancellor's confirmation of the Hearing Committee's
decision not to validate a hearing or may appeal to the Board of Governors the decision not to conduct a hearing. (
If
the committee validates the request for a hearing, or if 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 42 calendar
working
days of the notification to the complainant that the request for a hearing was
validated, except under unusual
circumstances such as when a hearing request is received during official
university breaks and holidays and despite reasonable efforts the hearing
committee cannot be assembled.
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 21
calendar 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
2. Conduct of the Hearing
The
chair of the Hearing Committee or an regular 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, the respondent(s), and one person who may advise the
respondent(s). If there is more than one
respondent, the respondents will designate a spokesperson for the hearing.
There will be an equal number of persons advising the complainant and
respondent(s). The person advising the complainant but who may not
take an active part in the proceedings. The person advising the
respondent(s) at the hearing may be the respondents, either an
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. (
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 spokesperson 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 spokesperson representative, may cross-examine
opposing witnesses. Committee members may question witnesses for purposes of
clarification. At the conclusion of the
hearing, the complainant may make a summary statement of up to ten minutes
in duration. If the complainant elects to do so, then the respondent(s),
through their spokesperson, will be given the same opportunity 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 calendar 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. The standard applied by the committee being that the
evidence is clear and convincing by the greater weight shall be that the
preponderance of the evidence to establishes 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
14 calendar 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 42
calendar 30 working days after
receiving the recommendation of the Hearing Committee and the transcript, 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 within 14 calendar
10 working days that a joint meeting with the committee
occur. 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 42 calendar 30
working day period. in
the preceding 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
14 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 fourteen 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 manner matter. (
FOOTNOTE [i]
Appeals based on material procedural irregularity shall refer only to personnel
actions which are initiated after the approval of material procedural
irregularity as a basis for a request for a hearing.“
Resolution
#09-20
Approved
by the
Approved by the Chancellor: April 9, 2009
Approved
by the Board of Trustees: pending
Approved by the UNC General Administration: pending
Addition to ECU Faculty Manual,
Appendix D, Section V. Procedure for Review of Notice of Non-Reappointment or
Non-Conferral of Permanent Tenure (noted in underline), as follows:
V. Procedure for
Review Appeal of Notice of Non-Reappointment or Non-Conferral of
Permanent Tenure.
….
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 42 calendar working
days of the notification to the complainant that the request for a hearing was
validated, except under unusual circumstances such as when a hearing request
is received during official university breaks and holidays and despite
reasonable efforts the hearing committee cannot be assembled. 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 21 calendar 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