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PPM 9-12, Formal Hearing |
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Responsible Office: Academic Affairs |
1.0 PURPOSE
This policy describes the formal process for resolution of issues involving faculty.
2.0 REFERENCES
2.1 PPM 1-13, Faculty Senate Constitution and Bylaws
2.2 PPM 3-32, Discrimination, Harassment, and Sexual Misconduct (including Title IX)
2.3 PPM Section 9, Academic Freedom, Rights, Responsibilities, and Due Process
3.0 PRE-HEARING PROCEDURES
3.1 After the process has taken place as described in PPM 9-11, individuals may file a formal charge with, or a faculty member may appeal a disciplinary action taken by the Provost or Dean to, the chair of the Faculty Board of Review. In cases where the faculty member is appealing a disciplinary action by the Provost or Dean, the Provost or Dean becomes the “complainant” and must provide a formal charge to the Faculty Board of Review within fourteen working days of notice by the chair of the Faculty Board of Review that the faculty member has requested an appeal.
Within fourteen working days following receipt of a formal charge, the Faculty Board of Review may make a non-binding recommendation that an informal conciliatory process be initiated, if this was not done. At any point in the proceedings, the parties may agree to resolve the matter informally or return to the process described in PPM 9-11. Furthermore, the Faculty Board of Review in its discretion may decide not to hold a formal hearing on the charge if it is determined to be frivolous, without merit, based on issues that are beyond the boundaries established by the statement of rights and responsibilities contained in the PPM, if it is determined to be an abuse of the intent of due process, or if it is determined that even if the allegations, as alleged, were found to be true, the conduct would not violate applicable standards of conduct. Review for dismissal may be made at any stage of the proceedings. The decision to dismiss the charge, together with reasons therefore, shall be submitted in writing to both the complainant and the respondent. If a decision is made to dismiss the formal charge, any appeal must be submitted to the President within fourteen working days of receipt of the decision.
Any allegations of violation of PPM 3-32 must be referred to the Office of Equal Opportunity and shall be handled as described in that policy and in accordance with legal requirements. The Faculty Board of Review shall also serve as the independent personnel board for purposes of Utah Code Ann. 67-21-1 et. seq. with regard to allegations made against an individual in their role as a faculty member and shall operate in a manner not conflicting with that statute. Hearings of grievances regarding either a denial of tenure or promotion shall follow PPM 9-17 in terms of standards of review and processes.
Within fourteen working days following receipt of a formal charge, the chair of the Faculty Board of Review shall inform the respondent in writing of the formal charge.
3.1.1 Written notice of the formal charge from the chair of the Faculty Board of Review shall be delivered personally, by certified mail, return receipt requested, or by University email to the respondent. Such notice shall contain the following:
3.1.1.1 A concise statement of the formal charge, summarizing the facts, conduct or circumstances reported to constitute failure to comply with the standards set forth in PPM 9-14 or PPM 9-17. A copy of the applicable canons and regulations shall be included with this notice.
3.1.1.2 A statement of the action proposed to be taken in the event the allegations of noncompliance are sustained by the Faculty Board of Review, if known.
3.1.1.3 The rights and responsibilities of the respondent and the complainant in the formal hearing. This provision shall be deemed satisfied if a copy of PPM 9-13, is sent to the respondent and complainant along with a copy of the formal charge.
3.1.1.3 The current membership of the Faculty Board of Review.
3.1.2 A respondent who wishes to contest the formal charge shall, within fourteen working days of receiving the charge, file a written answer to the charge with the chair of the Faculty Board of Review. Exigent circumstances may be grounds for a reasonable extension of the time within which an answer must be filed, but such exigent circumstances should be of a serious and compelling nature, as determined by the chair. Failure to do so will signify the respondent does not want to contest the charges and the Faculty Board of Review will make a decision on that basis.
3.1.3 When a formal charge has been filed against a respondent and criminal or civil charges on the same or closely related acts are pending in a court of law, the formal hearing proceedings under University policy may be postponed, at the discretion of the Faculty Board of Review after considering the arguments of the parties.
3.1.4 The chair of the Faculty Board of Review shall schedule the formal hearing for a time no later than 60 working days from the time the formal charge was initially received. An extension of time for formal hearing preparation may be granted by the chair if requested by the respondent or complainant for good cause, or as otherwise determined by the Faculty Board of Review.
3.2 At least ten working days prior to the date set for the formal hearing a pre-hearing conference will be held. The purpose of the pre-hearing conference is to facilitate and expedite the formal hearing process. The following people should be in attendance at the pre-hearing conference:
3.2.1 The administrative officer;
3.2.2 The chair of the Faculty Board of Review;
3.2.3 The respondent;
3.2.4 The complainant(s);
3.2.5 Representatives for the respondent and the complainant may also be in attendance;
3.2.6 University Legal Counsel.
These individuals shall decide the parameters of and delineate the issues to be examined at the formal hearing. At this pre-hearing conference the chair shall set a date when the respondent and complainant shall make available to each other and to the chair, a list of proposed witnesses to be called and the documentary evidence expected to be introduced at the hearing. Nothing in this paragraph shall, however, limit the parties involved from bringing additional evidence or requesting additional witnesses during the formal hearing, subject to approval by the Faculty Board of Review.
At the pre-hearing conference, the chair of the Faculty Board of Review shall also decide the role of representatives and if the respondent and complainant may question each other and the witnesses directly during the formal hearing, or if questions must be submitted to members of the Faculty Board of Review for their inquiry to the complainant, respondent, and witnesses. In all cases, the parties shall be given a reasonable opportunity to appear and testify, call witnesses, present evidence, and comment on issues. Generally, questioning will be conducted by Faculty Board of Review members; however, upon good cause shown, the chair may allow questioning by parties or by parties’ representatives.
At the pre-hearing conference any party who objects to the composition of the Faculty Board of Review based on non-independence may, with stated cause, challenge the composition of the Faculty Board of Review. In the event that member(s) of the Faculty Board of Review (other than the chair) are challenged, the chair shall rule on the challenges. In the event that the challenge is against the chair, the Executive Committee of the Faculty Senate shall rule on the challenge. Appointment for the replacement member(s) shall be determined by the Executive Committee of the Faculty Senate, as provided in Article B. VI, Section 7 of PPM 1-13, Faculty Senate Constitution and Bylaws.
3.3 The pre-hearing conference may be continued or postponed upon good cause shown by any of the participating parties or at the discretion of the Faculty Board of Review.
4.0 FORMAL HEARING PROCEDURES
4.1 The function of the formal hearing is for the Faculty Board of Review to make an informed judgment according to the generally accepted standard of the academic profession and to determine the significance of that judgment for the relationship between the respondent, the peers of the respondent and the institution. Members of the Faculty Board of Review serve as both jury and judges. As jury members, they determine the nature, quality and weight of the evidence presented to them and react as they see fit to the arguments they hear. As judges, they determine whether the evidence is relevant, decide which institutional canons or regulations are applicable and how they should be interpreted and used in the specific case before them, examine the relationship between institutional policies and procedures and those of the profession in general and recommend appropriate sanctions or dispositions of the case.
4.2 Attendance at the formal hearing should include, in addition to the members of the Faculty Board of Review, those persons in attendance at the pre-hearing conference as specified in section 3.2. A substitute or representative for any of the specified individuals may attend upon approval of the chair. The Faculty Board of Review may include other individuals as it deems would be appropriate or necessary. A quorum shall be constituted if a majority of the Faculty Board of Review are present. The Faculty Board of Review may continue or postpone the hearing in the event that it determines that the absence of one or more individuals would jeopardize the fairness of the proceedings.
4.3 Hearings shall be closed to the public unless the respondent or complainant requests that it be declared an open hearing and the Faculty Board of Review, in consultation with University Legal Counsel, determines that an open hearing would be appropriate under the circumstances. The chair shall provide a written response to the request for an open hearing, with reasons, within ten working days of receipt of the request.
4.4 Publicity about the hearing by anyone involved in the proceedings should be avoided. Confidentiality of the proceedings must be maintained as required by University policy or law.
4.5 Relevant records and/or documentary evidence pertaining to the case under review may be requested by either the chair of the Faculty Board of Review or the parties. Compliance with such a request, or a request by the Faculty Board of Review to testify as a witness or otherwise participate in the proceedings, is an obligation of employment of any employee or officer of the University, to the extent not prohibited by law. All testimony given during the hearing shall be under oath if the charge is proposed to result in the faculty member’s demotion or dismissal.
4.6 The meeting shall be conducted as expeditiously as possible in order to produce a fair and reasonable judgment. The number and duration of meetings required to reach a recommendation shall be at the discretion of the Faculty Board of Review.
4.7 Meetings shall be guided by the following considerations, however, the chair is empowered with flexibility in departing from these procedures in order to conduct the meeting in a reasonable and expeditious manner. Mere failure to follow any procedures in this policy without a showing of prejudice, shall not be construed as sufficient grounds for a charge of procedural error. At all times, the complainant shall bear the responsibility of showing, through a preponderance of evidence, that adequate cause exists to find cause against the respondent; such a preponderance of evidence shall be determined from the record when considered as a whole.
4.7.1 The meeting shall be called to order by the chair. The chair shall do the following:
4.7.1.1 Introduce all persons in attendance.
4.7.1.2 State the formal charge being considered
4.7.1.3 Remind all participants of the confidential nature of the proceedings
4.7.1.4 Inform both complainant and respondent of the right of the Faculty Board of Review to meet in closed session for deliberative proposes and briefly describe the general guidelines for how the meeting will be conducted.
4.7.1.5 Briefly describe the role of the formal hearing in the due process procedure, including the applicable policies and standards of review for decision-making.
4.7.1.6 Inform those in attendance that a record of the meeting is being kept in either written or and electronically recorded form.
4.7.2 The formal hearing will normally begin with a statement by the complainant which specifies the grounds and general evidence upon which the charge is based. Witnesses and other evidence supporting the charge shall be presented at this time. The members of the Faculty Board of Review shall have the right to question the complainant and the witnesses at the completion of their testimony. The respondent may also have this right, if it was so decided at the pre-hearing conference, or if unanticipated testimony or evidence is presented that would justify further questioning, at the discretion of the Faculty Board of Review. The Faculty Board of Review may at any time limit both the nature and duration of such testimony or further questioning when it is deemed inappropriate, irrelevant, repetitious, or otherwise of little use in the proceedings.
4.7.3 Having heard the evidence supporting the charge, the chair of the Faculty Board of Review shall allow the respondent to make an opening statement and to present evidence, testimony or witnesses supporting the respondent’s position in the matter. The members of the Faculty Board of Review shall have the right to question the respondent and the witnesses at the completion of their testimony. The complainant may also have this right, if it was so decided at the pre-hearing conference, or if unanticipated testimony or evidence is presented that would justify further questioning, at the discretion of the Faculty Board of Review. The Faculty Board of Review may at any time limit both the nature and duration of such testimony or further questioning when it is deemed inappropriate, irrelevant, repetitious, or otherwise of little use in the proceedings.
4.7.4 In the foregoing procedures involving the introduction of evidence, it is understood that each party may have a representative present. This proceeding, however, is not to be bound by formal trial procedures or by rules of evidence established for the civil and criminal courts and the role of the representatives shall be advisory only and not that of trial lawyers. Their actions shall be subject to approval and limitation by the chair. The intent of this provision is to facilitate the respondent and the complainant in being afforded their right to representation while at the same time facilitating the academic nature of the proceedings. Exceptions to the role specified here for the representative may be made by the Faculty Board of Review for good cause.
4.7.5 Either the respondent or the complainant may request the calling of witnesses. The Faculty Board of Review may, however, in its sole discretion, limit the number of witnesses called if it is determined that little useful or new information be provided by additional witnesses.
4.7.6 The Faculty Board of Review may hear testimony in whatever form of presentation it deems appropriate (e.g., verbal, written, response to questions, etc.). The respondent and the complainant shall, however, have the right to present a brief summary or closing statement.
4.7.7 After hearing the testimony presented and determining that it has sufficient evidence upon which to base a fair and reasonable decision, the Faculty Board of Review shall meet in closed session for the purpose of deliberation and formulation of its recommendation to the President. This deliberative session shall be closed to all persons except the elected faculty members of the Faculty Board of Review, and University Legal Counsel, for legal advisory purposes only. (In the event that student representative(s) were added to the Faculty Board of Review for the case at hand, these students shall be included in the deliberations and shall be allowed to vote.) No written or other verbatim transcript of this closed deliberative session shall be kept. The deliberations at this point are in the nature of a jury deliberation and are to be considered closed, confidential and private.
4.7.8 Throughout the formal hearing it is the responsibility of the chair to ensure that written minutes of the meeting are produced in a timely and accurate manner or the meeting is recorded (see section 4.7.1.6). A copy of the minutes and/or the electronic record shall be made available to the complainant, respondent, administrative officer of the University as designated by the President, and/or members of the Faculty Board of Review upon request; and the least costly copy shall be provided without fee, as permitted by applicable law. The disposition of the records of the formal hearing shall comply with the provisions of PPM 9-15.
5.0 FINDINGS AND REPORT OF THE FORMAL HEARING
5.1 A majority vote of those in attendance shall control the action of the Faculty Board of Review. The chair shall be entitled to vote. All such voting and deliberation leading to a vote shall be conducted in closed session. When the Faculty Board of Review has concluded its deliberations, it shall prepare a written statement containing the following:
5.1.1 The decision;
5.1.2 The reasons for the decision;
5.1.3 The recommendation;
Copies shall be given to the respondent, the complainant and the President.
5.2 In the case of a tie vote, the recommendation shall be to dismiss the formal charge. If the Faculty Board of Review finds a violation sufficient to warrant disciplinary action, the Faculty Board of Review shall recommend such action as authorized by PPM 9-14, and which is deemed appropriate under the entire circumstances of the case. University Legal Counsel should be consulted before the Faculty Board of Review makes its recommendations. The Faculty Board of Review’s recommendation shall be forwarded to the President for consideration and implementation.
5.3 The respondent or complainant may appeal to the President. A written appeal to the President must be made not more than ten working days from the date of the written recommendation of the Board.
5.4 The President may be guided, but not bound, by the recommendation of the Faculty Board of Review. The President shall make a decision within twenty working days from the date of the written recommendation of the Faculty Board of Review.
Prior to making the decision, the President may remand the matter to the Faculty Board of Review for review and further hearing, as the President deems appropriate. The President shall state in writing to the chair of the Faculty Board of Review the specific purposes or reasons for the remand. The further review and hearing shall be limited to those purposes or reasons. The Faculty Board of Review shall complete its review and report its conclusions to the President within twenty working days after receipt of the remand.
5.5 The President’s decision, in consultation with the Board of Trustees where the decision is dismissal of a tenured faculty member, is final. There shall be no appeal or review of the Faculty Board of Review’s recommendation beyond the President.
Revision History
Creation Date: 12-1-87
Amended: 5-22-24