Resolution
#09-12
Approved
by the
Approved by the Chancellor: March 25, 2009
Approved by the Board of Trustees: pending
Approved by the UNC General Administration: pending
Revised
ECU Faculty Manual, Appendix D, Section VI. Due Process Before Discharge or the Imposition of Serious Sanctions, as
follows: (Deletions are noted in strikethrough
and additions are noted in bold print)
“VI. Due Process Before Discharge or the
Imposition of Serious Sanctions
A. Sanctions Penalties
A faculty member who is the beneficiary of
institutional guarantees of tenure shall enjoy protection against unjust and
arbitrary application of disciplinary sanctions
penalties. During the period
of such guarantees, the faculty member may be discharged from employment, suspended, or demoted in rank or serious sanctions may
be imposed or suspended from employment or diminished in rank
only for reasons of:
1. incompetence, including
significant, sustained unsatisfactory performance after the faculty member has
been given the opportunity to remedy such performance and fails to do so within
a reasonable time;
2. neglect of duty, including sustained failure to meet
assigned classes or to perform other significant faculty professional
obligations; or
3. misconduct of
such a nature as to indicate that the individual is unfit to continue as a
member of the faculty, including
violations of professional ethics, mistreatment of students or other employees,
research misconduct, financial fraud, criminal or other illegal, inappropriate
or unethical conduct. To justify serious disciplinary actions, such misconduct
should be either: (i) sufficiently related to a
faculty member’s academic responsibilities as to disqualify the individual from
effective performance of university duties, or (ii) sufficiently serious to
adversely reflect on the individual’s honesty, trustworthiness or fitness to be
a faculty member.
These sanctions
penalties may be imposed only in accordance with the procedures
prescribed in this section. For purposes
of the Faculty Manual 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 the faculty
from employment or to impose serious sanction, together with a
written specification of the reasons suspend from employment or to
diminish in rank (these sanctions penalties
hereinafter in Section VI are referred to as “the sanction” "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 14 calendar [1]
10 working
days after the faculty member receives the notice and written specification of the reasons 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 discharged or serious sanction
imposed 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 shall timely submit a 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 10 calendar
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. (
If the faculty member shall submit a timely
request for a hearing, the Chancellor shall ensure a process is in place so
that the hearing is timely accorded before the Due Process Committee.
E. Due Process Committee
The Due Process Committee (hereinafter “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 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 Due Process
Committee shall elect a chair and a secretary.
Should any cCommittee
officer be absent at the beginning of a hearing, the cCommittee shall elect an alternate officer for the
purposes of the hearing.
When the cCommittee is convened to consider
any matter associated with a faculty member's request for a hearing, those cCommittee 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 cCommittee
related to this specific request for a hearing.
The faculty member and the vice chancellor with supervisory authority
are permitted to challenge cCommittee members for cause. The other members of the cCommittee will decide on any
potential disqualifications if a cCommittee member is so challenged
but wishes to remain. (
When membership of the cCommittee 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 cCommittee 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 cCommittee 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 cCommittee 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
Committee shall accord the faculty member 30 calendar days from the time it
receives the faculty member’s written request for a hearing to prepare a
defense. 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. The
date for the hearing must be within 30 working calendar 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 cCommittee
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. The Committee will ordinarily endeavor to
complete the hearing within 90 calendar days except under unusual circumstances
such as when a hearing request is received during official university breaks
and holidays and despite reasonable efforts the Committee cannot be assembled.[1]
2. Conduct of Hearing
The hearing shall be on the
written specification of reasons for the intended discharge or imposition of a serious sanction penalty. The chair of the Due Process
Committee, or an elected member of the cCommittee 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
cCommittee's
members and alternates, the faculty member requesting the hearing, counsel for
the faculty member, the vice chancellor with supervisory authority, or his/her
designee, and/or and counsel
for the vice chancellor. Other persons (witnesses) providing information to the
cCommittee
shall not be present throughout the hearing, but shall be available at a
convenient location to appear before the cCommittee 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. (
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, his/her designee, 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, his/her designee, or his/her his or her counsel, and the faculty
member or his/her
his or her
counsel, shall have the right to
confront and cross-examine adverse witnesses, and to make argument 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, or his/her
designee, will be given the opportunity to provide summary statements. (
G. Procedures After the Hearing
After the hearing, the cCommittee 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. In reaching its decisions the cCommittee shall consider only the
testimony and other materials entered or presented as evidence during the
hearing and such written or oral
arguments as the committee, in its discretion, may allow. The University has
the burden of proof. In evaluating evidence, the Committee shall use the
standard of “clear and convincing” evidence in determining whether the
institution has met its burden of showing that permissible grounds for serious
sanction exist and are the basis for the recommended action.
Within 14 calendar 10 working days of finishing its deliberations or after the full transcript is received,
whichever is later, the cCommittee shall provide the
faculty member[1]
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 cCommittee shall state whether or
not it recommends that the intended sanction 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 calendar 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 cCommittee 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 cCommittee 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 filed received by the
chancellor within 14 calendar 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 as soon as reasonably possible 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 14 calendar ten days after receiving the trustees' decision, file a written notice of appeal, by certified mail, return
receipt requested, or by another means that provides proof of delivery, file a written petition for review to the Board of Governors by alleging 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 appeal 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 reassign the individual to other duties or 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.”