Resolution #09-12

Approved by the Faculty Senate:  February 24, 2009

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.).  (Faculty Senate Resolution #99-10)

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.  (Faculty Senate Resolution #99-10).

 

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 East Carolina University Faculty Senate. Members and alternates shall be elected to three-year terms. A quorum for the committee shall be the five members or their alternates.  Upon organization, the members 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. (Faculty Senate Resolution #99-10)

           

When membership of the cCommittee falls below the specified five members and five alternates, the Faculty Senate will elect additional faculty members to the committee.  Vacancies on the committee will be filled first by moving alternates to member status and by electing new alternates and/or members as needed to fill the committee roster.

           

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.  (Faculty Senate Resolution #99-10)

           

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. (Faculty Senate Resolution #03-37). The hearing shall be closed to the public unless both the faculty member and the Committee agree that it may be open.

 

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. (Faculty Senate Resolution #99-10).

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 (Faculty Senate Resolution #03-37).        

           

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.”