CHAPTER 3 - FACULTY AND ACADEMICS

Sec. 3.18. Faculty Grievance Procedure

I. Policy

A. A faculty member has the right to seek redress of any grievance related to the terms and conditions of employment. A faculty member is any individual holding an academic title as defined in Part I, Chapter III, Section 1.8 of the Rules and Regulations of the Board of Regents except for Assistant Instructors and Teaching Assistants.

 

B. Each faculty member may express a grievance through the following procedures with the assurance of timely and thorough consideration. Grievants are assured freedom from reprisals for the filing of their grievances.

 

C. The administration through appropriate officials reserves the right to discipline and to terminate the employment of a faculty member for stated good cause shown. (Chapter III, Section 6.3 of the Board of Regents' Rules and Regulations shall govern all actions as appropriate.)

 

D. The Committee of Counsel on Academic Freedom and Responsibility is charged with the general supervision and review of principles and procedures relating to academic freedom, tenure, and responsibility. The Faculty Grievance Committee is authorized to hear or otherwise dispose of individual grievances.

 

E. The grievance procedure as described does not replace any existing procedures for departmental, college or University review of appeals from actions of Budget Councils, departments, or colleges, or deny any access to other dispute resolving mechanisms.

 

II. Issues Subject to Grievance Procedures

A. These procedures are established to process grievances of faculty members. Such grievances include, but are not limited to:

1. any issue bearing upon the academic freedom of an individual faculty member;

 

2. dismissal of a tenured faculty member or a non-tenured faculty member during the stated period of appointment;

 

3. disciplinary actions;

 

4. administrative actions which the individual faculty member deems to be a violation of contractual rights or an infringement upon the exercise of rights guaranteed by the laws or constitution of this state or the United States. These include the:

 

a. non-renewal of a non-tenured faculty member; and

 

b. withholding of any substantial right, attribute or perquisite such as, but not limited to, salary, promotion, or teaching or research award.

 

B. A good faith dispute between a Budget Council or department or academic administrative officer (chairperson, dean, academic vice president or President) and a faculty member as to the quality of the faculty member's teaching or scholarship shall not be a basis upon which a hearing panel may grant relief, except in the case of grievances arising as the result of Section A.2. actions as described above.

 

III. Faculty Grievance Committee and Hearing Panel

A. The Faculty Grievance Committee (hereinafter Committee) consists of 16 full-time voting members of the faculty, serving two-year overlapping terms. Ten (10) members are elected at-large by the General faculty, and 6 members are appointed by the President through the regular procedures of the Committee on Committees. Each spring 5 members are elected at-large under the Hare System, and 3 members are appointed by the President. Appointments to the Committee are made with the goal of insuring appropriate representation of the various elements and interests comprised in the General Faculty. The total Committee membership shall not include more than 4 faculty members from any school or college. The Committee selects its own chairperson, and may delegate those functions it deems appropriate to subcommittees of 4 or more members. The chairperson shall be responsible for maintaining records on all grievances filed and their ultimate disposition. At the end of each year copies of these records shall be forwarded to the Secretary of the Faculty Senate for appropriate maintenance. The chairpersons shall, in addition, provide the President and the University Council an annual report summarizing the Committee's work.

 

B. Formal hearings under this procedure shall be conducted by a special hearing panel (hereinafter "the panel"), consisting of three faculty members drawn at random from a pool of faculty hearing officers, except in grievances arising from the dismissal of a faculty member as specified in II.A.2. and in grievances arising from the non-renewal of a non-tenured faculty member as specified in II.A.4.a.. In grievances specified in II.A.2. and II.A.4.a., the panel shall consist of five faculty members drawn at random from only those faculty members in the pool whose academic rank is at least equal to that of the aggrieved faculty member and the membership of these panels must be approved by the President. The pool shall be constituted in the following manner:

 

1. each member of the Faculty Senate shall appoint a hearing officer to serve for the period of the Senator's term;

 

2. the President may appoint 10 additional hearing officers each year to serve two-year terms.

 

IV. Grievance Procedure

A. Time Limitations

Each step in the grievance procedure is exhausted either upon the grievant's receipt of the written decision or recommendation of the appropriate officer or body or upon expiration of the stipulated time period, whichever occurs earlier. Upon exhaustion of a step, the grievant may proceed to the next step of the procedure. The time periods stipulated may be extended upon mutual written agreement of the parties or by the Committee's approval of a request by the grievant or other party.

 

B. Request for Informal Assistance

1. The faculty member may request, orally or in writing, the informal assistance of the Committee in the resolution of grievances. Except as provided in Section IV.B.2. below, such a request is not a prerequisite to the use of the grievance procedure set forth below, and the faculty member may choose to file a formal complaint prior to the completion of the informal process. In conducting informal negotiations between the grievant and other relevant persons, the Committee may urge substantive reconsideration of the grievant's complaint by appropriate administrative officers or withdrawal or modification of the complaint by the grievant.

 

2. Any such request or grievance which involves alleged or suspected discrimination for reasons of race, sex, age, religion or handicap shall be directed to the Equal Employment Opportunity Office prior to the initiation of any grievance procedure. After consultation with this office or if such consultation has already taken place, the faculty member may continue under these procedures.

 

C. Initiation and Processing of Complaints

1. The faculty member initiates the formal grievance procedure by the submission of a written complaint to the chairperson of the Committee. In grievances arising under II.A.4.a., a faculty member shall submit in writing factual allegations that the non-renewal decision was based on a violation of contractual rights guaranteed by the laws or constitution of this state or the U.S. and a copy of the written complaint shall be provided the President. Upon such submission, the grievant shall be advised of the appropriate steps (including IV.B.2. above) to be followed in the procedure. In grievances arising under II.A.2., steps 2, 3, and 4 (as provided in Sections IV.C.2., IV.C.3., and IV.C.4.) shall be by-passed and the formal grievance procedure shall begin with step 5 (as provided in Section IV.C.5.). In other cases, the Committee may advise the grievant to by-pass steps 2 and 3 (as provided in Sections IV.C.2. and IV.C.3. below) if in its opinion those steps are unnecessary. In all other cases, the grievant shall proceed as follows.

 

2. The grievant submits a complaint in writing to the chairperson of the department. The chairperson of the Committee shall designate a member of the Committee to serve in an advisory capacity to the grievant if the faculty member so requests. Within 10 working days of receipt of the complaint, the chairperson of the department must provide the grievant with a decision or recommendation in writing, forwarding a copy to the chairperson of the Committee.

 

3. The grievant may appeal the decision or recommendation of the chairperson of the department to the dean of the appropriate school or college. The chairperson of the Committee shall designate a member of the Committee to serve in an advisory capacity to the grievant if the faculty member so requests. The appeal must be in writing and submitted within 10 working days after the exhaustion of step 2. Within 10 working days of receipt of the appeal, the dean must provide the grievant with a decision or recommendation in writing, forwarding a copy to the chairperson of the Committee.

 

4. The grievant may appeal the decision or recommendation of the dean to the Committee. The appeal must be in writing and submitted to the chairperson of the Committee within 10 working days after the exhaustion of step 3. The Committee must determine whether the grievant's complaint, construing all allegations in the light most favorable to the grievant, states a claim upon which relief may be granted. This determination must be made by a panel of three members of the Committee. No member of this panel shall have been involved in any way in the grievance. A finding of failure to state a claim upon which relief may be granted by no fewer than two members of this panel will result in dismissal of the complaint. Such a dismissal will be transmitted in writing and conclude the faculty grievance procedure. If the complaint is not dismissed at this stage, then the Committee may attempt to resolve the grievance through informal means. If it is unable to do so within 10 working days after receipt of the appeal, the Committee shall so notify the grievant in writing.

 

5.

a. The grievant may request a formal hearing. The request must be in writing and submitted to the chairperson of the Committee within 10 working days after the exhaustion of step 4.

 

b. The Committee shall assign a hearing panel selected as provided for in Section III.B. above. The panel shall not include any accuser of the grievant, anyone involved in any way in the action or circumstances giving rise to the grievance, or anyone who may be a witness in the hearing. If any member of the panel is of the view that he or she cannot serve with fairness and objectivity, that person shall not participate in the hearing from whatever time that member becomes aware of the impediment to continued service. Either party may move to disqualify a panel member whose service is alleged to be in violation of these provisions. It shall be up to each such challenged member to determine whether he or she can serve with fairness and objectivity in the matter. If a panel member should voluntarily disqualify himself or herself, the Committee shall assign a substitute in accordance with the above procedure.

 

c. On the basis of the grievant's complaint and construing all allegations in the light most favorable to the grievant, the panel may decide that the complaint is frivolous, too minor to warrant a hearing, or does not state a claim upon which relief may be granted. Two members of a three-member panel or four members of a five-member panel may decide to dismiss the complaint except in grievances arising under II.A.2. Such a dismissal will be transmitted in writing and conclude the Faculty Grievance Procedure. In all other cases, the panel shall hold a formal hearing. The panel's decision to hear the grievant's complaint shall be transmitted to the grievant in writing. The grievant may then begin to request documents and other real evidence from the administration pursuant to Section V.B.6. of this Procedure.

 

d. A hearing shall be held by the panel in accordance with the procedures contained in Part V, at the earliest date convenient to all concerned parties. Every effort will be made to convene the hearing within 15 working days after the hearing is formally requested. The parties must be given notice of the hearing date at least 10 working days in advance. However, in the case of the dismissal of a tenured faculty member or termination of a non-tenured faculty member before the expiration of the term of appointment, a hearing, if requested, must be held prior to the implementation of the decision to dismiss or terminate unless there is grave cause to suspend the faculty member.

 

e. Upon completion of the hearing, the panel shall notify the parties and the President of its decision, including its findings, determinations, and recommendations, and any minority report. If the parties voluntarily accept the panel's recommendations and possess authority for its implementation, the procedure is ended. If approval of higher administrative officers is required for implementation, the recommendation shall be forwarded to the President for disposition in accordance with the Rules and Regulations of the Board of Regents.

 

6. Unless the parties voluntarily accept and implement the panel's recommendations, or if presidential action is required for implementation of the panel's decision or the decision of the chairperson or dean, the grievant shall appeal in writing, or the parties shall request in writing presidential disposition, within 10 working days after the panel makes its recommendations. The President shall render a decision or recommendation in writing in accordance with the Rules and Regulations of the Board of Regents to the grievant within 10 working days after receipt of the appeal or request, forwarding copies to other concerned parties. The President may endorse, modify or reject the recommendations of the panel. The President's written decision or recommendation serves as a directive for any action necessary to comply with the decision or recommendation. The decision or recommendation of the President constitutes the conclusion of the Faculty Grievance Procedure. The grievant may seek further review as provided by regental Rules.

 

V. Formal Hearing Procedures

A. Conduct of Hearing

1. The panel shall conduct a hearing to determine the facts. In the case of the dismissal or discipline of a tenured faculty member or of a non-tenured faculty member before the termination of appointment, the burden of proof is on the administration to establish, by a preponderance of the evidence, that good cause was the basis of the dismissal or discipline. In all other cases, the burden of proof shall rest with the grievant to prove, by a preponderance of the evidence, that there was a substantial violation of the grievant's academic freedom, constitutional, statutory or contractual rights.

 

2. General concepts of relevancy and materiality shall prevail at the hearing. The rules of evidence that obtain in a court of law need not be strictly observed when, in the judgement of the panel, evidence of probative value is being offered; but every reasonable effort shall be made to obtain the most reliable evidence available.

 

3. At least three working days before the hearing, each party shall notify the other and the panel of the identity of witnesses, other than impeaching witnesses, to be called and of documents to be submitted in evidence. The parties shall have the right to confront and cross-examine all witnesses. The panel reserves the right to permit other witnesses to testify or to call other witnesses if the panel in its discretion deems such action to be advisable.

 

4. The panel shall insure that all parties are afforded a fair procedure and substantial justice.

 

5. The panel may adjourn to enable either party to investigate evidence for which a claim of surprise is made.

 

6. Except for routine announcements, such as those relating to the time of the hearing and similar matters, public statements about the case by the parties, panel members or Committee members shall be avoided as far as possible. Public statements, if any, concerning the decision or recommendation of the panel shall be withheld until final disposition.

 

7. In cases arising under II.A.2., the proceedings shall be recorded and transcribed by a court reporter, and a copy of the verbatim transcript will be supplied to the grievant. In all other cases, a full electronic record of the hearing shall be taken and made available to the parties. The grievant shall be required to pay the costs incident to the preparation of a verbatim transcript in all such cases; or if the administration has prepared such a transcript, the grievant upon request shall be provided with a copy of that transcript upon payment of the normal costs for making copies of documents in an individual's personnel file.

 

8. The panel by a majority of its total membership shall:

a. make findings of fact;

 

b. determine whether the facts so found constitute:

(1) good cause for the dismissal or discipline of a tenured faculty member or of a non-tenured faculty member before the termination of appointment; or

(2) a violation of the grievant's academic freedom or constitutional, statutory or contractual rights;

c. make such recommendations as it deems appropriate. Such findings and determination shall be based solely on any admissions and the evidence in the record.

 

9. The panel may, where deemed necessary, request that the Dean of the Law School or the President provide, when feasible, legal counsel to the panel.

 

B. Rights of Parties

1. All parties, at any level of the grievance procedure, may be represented or accompanied by a reasonable number of personally chosen individuals, including legal counsel.

 

2. The party having the burden of proof will have the opportunity and duty to open and close the presentation and argument or discussion, if any, to be made to the panel.

 

3. Each party shall have the right to testify. The grievant may not be required to testify.

 

4. The hearing shall be closed unless the grievant requests a public hearing and the panel concludes that there are no compelling reasons for denying that request.

 

5. At the request of either party, the panel may permit a representative of one or more responsible professional educational associations to attend the proceedings as observers and to have access to all or portions of the evidence available under state and federal laws as the panel deems appropriate.

 

6.

a. When a hearing is to be held, the grievant shall be afforded an opportunity to obtain necessary witnesses and documentary or other evidence, and the administration shall assist in securing the cooperation of witnesses and make available any necessary documents and other evidence within its control. Both the grievant and the administration may obtain discovery of documents and other real evidence for purposes of inspection and copying. Such discovery may be obtained regarding any matter not privileged that is relevant to the issues before the panel. Unless the party of whom the discovery is requested seeks an order of the panel to limit the discovery, discovery will be facilitated through the cooperation and agreement of the parties.

 

b. If the party of whom discovery is requested believes that all or some of the requested material is not discoverable, or believes that the use of some or all of the requested materials should be limited, or believes that some or all of the requested materials should not be seen by certain persons, that party may petition the panel to relieve it of having to divulge the requested materials or to order limitations on the use of particular materials. The panel may require that the requested material be filed with it in order that it may make reasonable disposition of the motion to limit discovery.

c. The panel may infer from a refusal to produce relevant, non-privileged materials that if produced they would have damaged the position of the non-producing party in control of such materials.