Chapter 3339-8 Procedures for Displinary Action on Instructional Staff

3339-8-01 Grievance procedures available to members of the instructional staff.

(A) Pre-grievance requirements

Before a grievance is initiated, the faculty member is expected to engage in constructive discussion and consultation with the individual(s) involved, in order to assure that concerns are understood, and to attempt to reach a resolution. Faculty members are also encouraged to consult as appropriate with deans, chairs, colleagues, representatives of the provost's office, or the chair or any member of the committee on faculty rights and responsibilities for advice and counsel. The objective of such consultation is to resolve disputes and misunderstandings by clarification and conciliation, in order to avoid the need to initiate a grievance.

(B) Scope of grievance procedure

(1) A grievance is a request for a particular decision or action; or a request for modification of, or relief from, a decision or action previously taken. The purpose of the grievance procedure is to enable members of the faculty to raise questions and concerns, to attempt to resolve differences and, where appropriate, obtain redress, in matters directly affecting an individual or group relationship with the university.

(2) A grievance must identify a particular action, inaction, or decision, and an individual or individuals within the academic division of the university believed to be responsible for it.

(3) A grievance may not be initiated where the subject matter of the proposed grievance is:

(a) An action or decision exclusively affecting one or more individuals other than the grievant.

(b) A decision or action as to which the grievant has already been afforded the right to a university level hearing, whether or not such right was exercised.

(C) Submission of written grievance

A grievance is initiated by the submission of a written statement of the grievance to the committee on faculty rights and responsibilities via the chair of the committee. A grievance should not be filed with the committee until after an individual has used the departmental grievance and/or divisional appeal procedures.

(D) Grievance mediation procedure

The grievant may opt to bypass the mediation procedure and request a hearing by the committee on faculty rights and responsibilities under paragraph (E) of this rule. The grievant may first invoke the mediation procedure described below, or the grievant and the person against whom the grievance may be filed may create an alternative grievance procedure that is mutually acceptable to both of them. Grievants invoking the mediation procedure shall be afforded timely opportunities to reflect on offers and consult with counsel before rendering their decisions.

(1) A mediation committee consisting of three members will be convened by the chair of the committee on faculty rights and responsibilities. Each of the following individuals will appoint one member to the mediation committee within fourteen calendar days:

(a) The committee of faculty rights and responsibilities will appoint a former member of that committee still employed at the university.

(b) The grievant.

(c) The person against whom the grievance has been filed. If the grievance is filed against more than one person, these individuals shall jointly agree on a single person to appoint.

(d) All members of the mediation committee must be either tenured members of the faculty or members of the administration holding tenurable faculty rank and may not be serving on the committee on faculty rights and responsibilities.

(2) The mediation committee will convene within one month. The member appointed by the committee on faculty rights and responsibilities will serve as chair.

(3) The grievant and the respondent(s) will be expected to attend the mediation meeting. Attendance by legal counsel will not be permitted. Attendance by other individuals will be at the discretion of the mediation committee. The meeting will ordinarily be private and confidential to the extent permitted by law. In its discretion, the mediation committee may review documents and other information presented to it by any of the parties. The mediation committee will endeavor, at the meeting, to mediate and conciliate the dispute, and to bring about an agreed resolution. The members of the mediation committee may, in their discretion, schedule one additional mediation meeting, to be held within fourteen calendar days after the first. Faculty members participating in the mediation procedure shall be afforded opportunity, not to exceed twenty-one calendar days, to reflect on offers and consult counsel before rendering their decisions.

(4) If the matter is resolved to the satisfaction of all parties as a result of the mediation procedure, the dean, department chair, or other appropriate person will promptly implement the action agreed upon. The chair of the mediation committee will report to the chair of the committee on faculty rights and responsibilities that the matter has been resolved.

(5) If the matter is not resolved as a result of the mediation procedure, then the chair of the mediation committee will transmit a memorandum to the chair of the committee on faculty rights and responsibilities advising him or her of this without elaboration.

(6) Once the ad hoc mediation committee has either resolved the matter under paragraph (D)(4) of this rule or advised the chair of the committee on faculty rights and responsibilities that mediation was unsuccessful under paragraph (D)(5) of this rule, the mediation committee will not make any other finding or recommendation nor take any other action in the matter. Neither the mediation committee nor any of its members will retain any written or other record of any of the mediation committee's meetings or actions, except as provided in paragraph (D)(4) or (D)(5) of this rule.

(E) Grievance hearing procedure

(1) If the grievance is not resolved as a result of the mediation procedure or if the grievant opts to bypass the mediation procedure, the grievant may request a hearing of the grievance by the committee on faculty rights and responsibilities. The mediation procedure may not be used to appeal a negative decision concerning promotion or tenure. Paragraph (I) of this rule does not apply to negative decisions concerning promotion and tenure.

(2) At its discretion, the committee on faculty rights and responsibilities will determine whether the hearing will proceed in one of two ways:

(a) According to the procedure described in paragraphs (H)(1) to (H)(4) of rule 3339-8-03 of the Administrative Code; or

(b) With the consent of the parties according to such procedures on file with the office of general counsel that have been developed by the committee on faculty rights and responsibilities for the effective review of grievances brought to it. In order to provide effective review in the different types of situations with which it must deal, the Committee may, at its discretion, adopt more than one grievance hearing procedure alternative to the procedure in paragraph (H) of rule 3339-8-03 of the Administrative Code.

(3) The following regulations apply to any grievance hearing procedure developed by the committee on faculty rights and responsibilities:

(a) A written copy of the procedure to be followed in a particular case will be filed with the office of general counsel, unless the committee on faculty rights and responsibilities has chosen to use procedures already on file. In either case, a copy of the procedures shall be sent to the parties involved. A copy of the procedure shall be available to any person from the office of the office of general counsel and from the chair of the committee on faculty rights and responsibilities.

(b) All grievance hearing committees shall include at least five members of the committee on faculty rights and responsibilities, unless all parties have given their written consent.

(c) Any request by one of the parties to the grievance that an individual member of the committee be excused from the hearing, based on a claim that such member cannot be impartial in the particular case, will be resolved by the chair of the committee on faculty rights and responsibilities, unless the challenge is to the chair, in which case the challenge will be resolved by the vice chair.

(F) Report

Once the committee on faculty rights and responsibilities has made its determination, it will send a report to the parties to the grievance. The report will include findings of fact, conclusions drawn from these facts, and recommendations. At its discretion, the committee may include observations germane to the case.

(G) Implementation

(1) All recommendations made by the committee on faculty rights and responsibilities are to be implemented promptly unless appealed to the president.

(2) If there is no appeal and the committee on faculty rights and responsibilities has recommended that some action should be taken by a chair, dean, or other university official, the committee will notify that person to implement the recommendation promptly. If a person modifies or fails to act on the committee's recommendation, the committee may ask the president to order that its recommendation be carried out. If the recommendation is modified or not implemented, the committee may report this to faculty assembly for its action or instructions.

(H) Appeal to the president

The report of the committee on faculty rights and responsibilities may be appealed to the president within seven calendar days of receipt. Appeals to the president must be made in writing, with copies sent to all parties to the grievance and to the committee on faculty rights and responsibilities. The following appeal procedure is applicable:

(1) The party appealing must specify the basis for objection to the committee's report. Failure to so specify may result in dismissal of the appeal.

(2) The president will establish a schedule for the submission of materials and for the completion of any other steps involved in the appeal.

(3) The president will allow the parties to present argument on appeal. The president may decide whether to receive these arguments in writing, in person, or both. Regardless of the method used to present arguments, the president will allow each party to learn what the other has said and rebut these statements.

(4) The president's review on appeal will ordinarily be limited to those specific issues of fact, conclusions or recommendations brought to his or her attention by the party appealing.

(5) The president shall be bound by the findings of fact made by the committee on faculty rights and responsibilities unless those findings are against the greater weight of the evidence. Due deference must be accorded to findings of fact of the committee on faculty rights and responsibilities since it is the committee who is best able to observe the demeanor of witnesses and weigh their credibility.

(6) After deliberating on the appeal, the president may respond in the following ways:

(a) The president may concur with and order the committee on faculty rights and responsibilities' recommendations to be implemented immediately, unless there is an appeal to the board of trustees.

(b) The president may remand the matter to the committee for further consideration, and shall remand the matter to the committee if the president disagrees with any of the committee's findings of facts stating why.

(c) The president may reach different conclusions and/or determine not to follow the recommendations of the committee, but only after consultation with the committee. If, after the remand under paragraph (H)(6)(b) of this rule and after consultation with the hearing committee, the president disagrees with the findings of fact of the committee because, in the president's judgment, they are against the greater weight of the evidence, the president may reach new findings. In any event, however, the committee's conclusions, recommendations, and findings of fact will remain unaltered as part of the record of the case.

(7) The president shall promptly provide a written report of his or her decision on the appeal to the parties and the committee on faculty rights and responsibilities.

If the president, after consultation with the committee, does not accept the Committee's conclusions or recommendations, the committee may report this to faculty assembly. If the president, after consultation with the committee, does not accept the committee's findings of fact, the committee must report this to faculty assembly. The committee may report to faculty assembly in either its annual report or by placing it on the agenda of a meeting of the faculty assembly for its action or instructions.

(8) If the matter is remanded by the president to the committee on faculty rights and responsibilities, copies of the remand determination and its reasons shall be provided to both parties. The committee will reopen the proceedings and at the conclusion thereof submit a supplemental report to the president and the parties. The president may then act according to the options afforded by paragraph (H)(6) of this rule as if acting on the committee on faculty rights and responsibilities original report, except that a matter may be remanded only once unless the committee agrees to additional remands.

(9) If the president is a party to the grievance, then this paragraph (H) of this rule does not apply and any appeal shall be to the board of trustees.

(I) Appeal to the board of trustees

(1) The president's decision may be appealed to the board of trustees, which has ultimate authority to take final action to promote the best interest of the university and to protect individual rights. The appeal must be filed with the secretary to the board within fourteen calendar days of receipt of the president's decision.

(2) The board shall review the report and supplemental report, if any, of the committee on faculty rights and responsibilities and the decision of the president. In its review, the board may consult with the president and shall give all parties to the grievance an opportunity to present argument to it. The board may decide to receive these arguments in writing, in person, or both. The board' action is final and shall be accompanied by a statement in writing setting forth its reasons.

(J) General matters

(1) References in this rule of the Administrative Code to a particular officeholder are to be read as including another individual serving in an "acting or interim" capacity for the officeholder and any other individual designated by the officeholder to serve in his or her stead.

(2) Time deadlines specified in this rule of the Administrative Code may be extended by agreement of the parties involved or, in the absence of such agreement, by decision of the chair of the committee on faculty rights and responsibilities.

(3) The running of any time period specified in these procedures will be suspended during:

(a) Thanksgiving recess

(b) Winter recess

(c) Spring recess

(d) The interval between the end of final examinations for spring semester and the date on which faculty are required to report for the fall semester.

Grievance proceedings are generally treated as confidential to the extent permitted by law.

Effective: 11/3/2016
Promulgated Under: 111.15
Statutory Authority: 3339.01
Rule Amplifies: 3339.01
Prior Effective Dates: 9/30/1999, 10/31/2002

3339-8-02 Termination of appointment or tenure for cause.

Any appointment can be terminated for cause through the procedures set forth in rule 3339-8-03.ofthe Administrative code In such cases the usual provisions of advance notice of non reappointment may be set aside.

A member of the instructional staff with tenure shall not be dismissed except for cause. In turn, the privilege of tenure requires that a member of the instructional staff shall conduct oneself as a person of learning with the obligations of scholarly objectivity, accuracy, tolerance, restraint, and social responsibility. A change in status from tenure to annual appointment may be made at any time for cause and through the procedures hereinafter set forth in rule 3339-8-03.ofthe Administrative code Causes shall include the following:

(A) Intentional or repeated violations of expressly stated university regulations or University policy.

(B) Professional incompetence.

(C) Refusal to perform properly assigned academic duties or assignments.

(D) Commission of an act involving moral turpitude which is punishable by a criminal statute of the state of Ohio.

(E) Violation of professional ethics as adopted by the university senate.

Replaces: 3339-8-02

Effective: 9/30/1999
Promulgated Under: 111.15
Statutory Authority: 3339.01
Rule Amplifies: 3339.01
Prior Effective Dates: 11/4/77, 5/21/1984, 9/30/1999

3339-8-03 Procedures for disciplinary action.

(A) General

Nothing in this rule, and elsewhere as adopted by the university senate shall be interpreted to reduce the scope of authority of the committee on faculty rights and responsibilities as has been established by university regulations and usage or shall lessen faculty members' timely access to consultation with members of that committee. (See paragraph (L) of this rule regarding time limits).

(B) Matters handled by department chairs

(1) Each department chair is expected to advise any member of his or her department regarding any known failure by such member to comply with any applicable policies or guidelines, violation of standards of conduct, professional incompetence, or failure to carry out job responsibilities. This will be done on an as-needed basis or periodically in annual reviews. If problems identified by the department chair are not resolved following one or more personal meetings, and/or written communications, then the chair may issue a written summary, which will be placed in the faculty member's personnel file, along with any response from the faculty member, consistent with rule 3339-3-08 of the Administrative Code.

(2) If a faculty member is dissatisfied with his or her chair's handling of a problem under paragraph (B)(1) of this rule and has used the department's grievance or appeal procedures, the faculty member may discuss the matter with the appropriate dean. The dean will review the matter in consultation with the faculty member and department chair, and attempt to resolve the matter by agreement of all three. If the dean is unable to resolve the matter by compromise, then the dean will make a decision. The burden of proof that adequate cause exists for this decision rests with the university.

(3) The chair will review with the faculty member, and place in the departmental student complaints file, any grade review requests or complaints regarding instruction that are forwarded to the chair pursuant to the university's academic grievance procedure (as found in the most current edition of the student handbook).

(4) In the event a department chair determines that disciplinary action is appropriate in a particular case or in the event that problems persist after one or more written communications under paragraph (B)(1) of this rule, the chair may initiate a disciplinary proceeding under paragraph (D) of this rule.

(C) Disciplinary proceedings

(1) The procedures outlined in paragraphs (D) to (L) of this rule are applicable in cases in which it is believed that a member of the instructional staff has engaged in misconduct which has not been, or cannot be, adequately addressed by following the informal procedures described in paragraph (B) of this rule. These procedures may result in the imposition of any appropriate penalties including, by way of example in ascending order of severity: presidential letter of reprimand; mandatory training, or assessment for treatment or therapy; limitation on supplemental teaching or research opportunities; limitation on future increases in compensation; suspension with or without pay; reduction in rank; change in status from tenured to annual appointment; and dismissal.

(D) Initiation of disciplinary action

(1) Disciplinary proceedings may be initiated either by departmental action according to the procedures described in paragraph (D)(1) to paragraph (D)(3) of this rule or at the provost's direct initiation according to the process described in paragraph (D)(4) of this rule.

(a) Departmental action

(i) The department chair will submit a memorandum of information to the dean, with a copy sent to the faculty member. This memorandum must be received by the faculty member within one hundred twenty calendar days from the date when the alleged misconduct first came to the attention of one of the following: the department chair, the dean, the provost, or the president. If the alleged misconduct consists of a pattern of behavior or a series of acts in their cumulative effect, then the memorandum must be received within one hundred twenty calendar days from the date when the last instance of such behavior or the last of the series of acts first came to the attention of one of the officers listed above. The memorandum shall include the following:

(a) Information in sufficient detail to disclose fully the nature of the alleged misconduct;

(b) Reference to prior discussions and written communications on the subject, if any;

(c) Supporting documentation as appropriate;

(d) A statement that the faculty member may arrange a meeting with the department chair and/or dean to discuss the matter and present the faculty member's views and information.

(ii) Additionally, the memorandum shall indicate that the faculty member must request this meeting in writing within fourteen calendar days after delivery of the memorandum of information and that the faculty member's failure to request such a meeting could result in the proposal of a disciplinary action.

(2) Divisional action

(a) After the meeting described in paragraph (D)(1) of this rule or after fourteen calendar days have passed without a request for a meeting by the faculty member, the dean will decide whether to drop the matter, ask the chair to handle it first under paragraph (B) of this rule (if it has not been handled that way already), or propose a penalty determined by the dean.

(b) If the dean determines that disciplinary action is appropriate, the dean will submit a memorandum of proposed disciplinary action to the provost, with a copy sent to the faculty member. This memorandum shall include the following:

(i) Information in sufficient detail to disclose fully the nature of the alleged misconduct and of the proposed disciplinary action;

(ii) Reference to prior discussions and written communications on the subject, if any;

(iii) Supporting documentation as appropriate;

(iv) A statement that the faculty member may obtain further review of the proposed disciplinary action by submitting a written request to the dean within fourteen calendar days after delivery of the memorandum, and that the faculty member's failure to request such review will result in the imposition of the proposed disciplinary action;

(v) A statement that the provost may initiate further review of the proposed disciplinary action by notifying the faculty member of such review in writing within fourteen calendar days after delivery of the dean's memorandum to the provost. The provost's review is not a hearing but rather an effort to determine the appropriateness of the proposed penalty.

(3) Responses to dean's memorandum

(a) If neither faculty member nor provost initiates further review. If the faculty member has not requested further review as provided by paragraph (D)(1) of this rule and if the provost has not initiated further review as provided by paragraph (D)(2) of this rule, then the dean's proposed disciplinary action will be deemed acceptable to the faculty member and the provost. In that event the chair, dean, or other appropriate administrative officer(s) will proceed to implement the proposed action and no further review or appeal will be available.

(b) If faculty member requests further review. If the faculty member requests further review, then the dean will promptly forward the request to the provost, together with the documentation generated under paragraphs (D)(1) and (D)(2) of this rule. The provost will convene a mediation committee to review the matter, following the procedures specified in paragraph (E) of this rule. Should the faculty member wish to bypass the mediation committee described in paragraph (E) of this rule, then he or she must submit to the provost a written request to do so. The request need not include any explanation of the faculty member's decision. However, a copy of the faculty member's request will be furnished to any hearing committee that may be convened to consider the matter pursuant to paragraph (G) of this rule, and it will be given such consideration as the hearing committee deems appropriate in its deliberations.

(c) If the provost initiates further review. If the provost initiates further review under paragraph (D)(2) of this rule to assess the appropriateness of the proposed disciplinary action, the provost will not convene a mediation committee (if the faculty member requested further review) but rather will ask the dean to promptly forward to the provost the documentation generated under paragraphs (D)(1) and (D)(2) of this rule. The provost may request additional information from the faculty member, the chair, and the dean. The provost may request that this information be delivered in writing, in person, or both. This review shall ordinarily take no more than fourteen calendar days. At the end of the review, the provost must send the faculty member a letter stating his or her determination. If the provost determines that a different penalty is warranted and if it is a more severe penalty than the dean proposed or not one of the penalties enumerated in paragraph (C) of this rule, the provost's letter must provide reasons for recommending the different penalty.

Within fourteen calendar days of receiving the provost's letter, the faculty member may request further review of the proposed disciplinary action either by invoking the mediation procedure described in paragraph (E) of this rule or by requesting to bypass the mediation procedure and proceed directly to a hearing before the committee on faculty rights and responsibilities in the manner described in paragraph (D)(3)(b) of this rule.

If the faculty member does not request further review, the provost's proposed disciplinary action will be deemed acceptable to the faculty member and the provost. In this event, the provost will proceed to implement the proposed action, and no further review or appeal will be available.

(4) Provost's direct initiation of disciplinary action

(a) Disciplinary action may also be initiated directly by the provost, upon the provost's own initiative or based upon a signed written complaint alleging misconduct by a faculty member.

(b) The provost will consult with the department chair and divisional dean prior to initiating disciplinary action. As a result of the consultation, the provost may refer the matter to the department chair and dean for proceedings in conformity with paragraphs (D)(1) to (D)(3) of this rule. In the event the provost determines it is appropriate to proceed directly with disciplinary action, the provost shall submit a memorandum of proposed disciplinary action to the faculty member, with copies sent to the department chair and dean. This memorandum shall include the following:

(i) Information in sufficient detail to disclose fully the nature of the alleged misconduct and of the proposed disciplinary action;

(ii) Reference to prior discussions and written communications on the subject, if any;

(iii) Supporting documentation as appropriate;

(iv) A statement that the faculty member may obtain a hearing on the matter before the faculty rights and responsibilities or may invoke the mediation process described in paragraph (E) of this rule by submitting a written request to the provost within seven calendar days after receipt of the provost's memorandum. If mediation is requested but fails, the faculty member may obtain a hearing before the committee on faculty rights and responsibilities by submitting a written request within seven days after receipt of the memorandum from the chair of the mediation committee (described in paragraph (E)(5) of this rule). If the faculty member does not make a timely request for the mediation procedure or a hearing before the committee on faculty rights and responsibilities, the provost's proposed disciplinary action will be deemed acceptable to the faculty member and no further review or appeal will be available.

(E) Mediation procedure

(1) The following mediation procedure is applicable in all cases in which it has been properly invoked under paragraph (D)(3) or (D)(4) of this rule.

A mediation committee consisting of three members will be convened when a timely request has been made to the dean and forwarded to the provost or made directly to the provost. The provost's office will secure appointments to the committee by promptly contacting the following parties, each of whom will appoint one of the three committee members within fourteen calendar days:

(a) The committee on faculty rights and responsibilities will appoint a former member of that committee still employed at the university.

(b) The faculty member.

(c) The dean or the provost if the provost has proposed the penalty under paragraph (D)(2) or (D)(4) of this rule.

All members of the mediation committee must be either tenured members of the faculty or members of the administration holding tenurable faculty rank and may not be serving on the committee on faculty rights and responsibilities.

(2) The mediation committee will convene within a time period specified by the provost, not to exceed thirty calendar days. The member appointed by the committee on faculty rights and responsibilities will serve as chair.

(3) The faculty member and either the dean or the provost (if the provost has proposed the penalty under paragraph (D)(2) or (D)(4) of this rule) are expected to attend the mediation meeting. Attendance by legal counsel will not be permitted. Attendance by other individuals will be at the discretion of the mediation committee. The meeting will ordinarily be private and confidential to the extent permitted by law. The mediation committee will review the documentation generated under paragraphs (D)(1) and (D)(2) of this rule. In its discretion, the mediation committee may also review other information presented to it by any of the parties. The mediation committee will endeavor, at the meeting, to mediate and conciliate the dispute, and to bring about an agreed resolution. The members of the mediation committee may, in their discretion, schedule one additional mediation meeting, to be held within fourteen calendar days after the first. Faculty members participating in the mediation procedure shall be afforded opportunity, not to exceed twenty-one calendar days, to reflect on offers and consult counsel before rendering their decisions.

(4) If an agreement is reached as a result of the mediation procedure, a memorandum of mediation agreement will be prepared by the chair of the mediation committee and signed by the chair and both parties. The chair of the mediation committee will report to the provost, without elaboration, that the matter has been resolved. If the provost was not a party to the mediation, the mediation agreement is subject to the approval of the provost. If the provost approves the agreement, the agreement will be promptly implemented. If the provost does not approve the agreement, he or she must notify the faculty member in writing, and the matter will proceed under paragraph (G) of this rule.

(5) If the matter is not resolved as a result of the mediation procedure, the chair of the mediation committee will report this outcome in a memorandum without elaboration. The memorandum will be sent to the faculty member, the dean, if the dean participated in the mediation, and the provost. The matter will then proceed under paragraph (G) of this rule.

(6) Once the mediation committee has either resolved the matter under paragraph (E)(4) of this rule or advised the provost that mediation was unsuccessful under paragraph (E)(5) of this rule, the mediation committee will not make any other finding or recommendation nor take any other action in the matter. Neither the mediation committee nor any of its members will retain any written or other record of any of the mediation committee's meetings or actions, except as provided in paragraph (E)(4) or (E)(5) of this rule.

(F) Failure of mediation in cases initiated by departmental action

(1) If disciplinary action is initiated by the department chair and if the provost receives a report under paragraph (E)(5) of this rule that mediation has not been successful or a written request under paragraph (D)(3)(b) or (D)(3)(c) of this rule to bypass mediation, the provost will review the documentation generated under paragraphs (D)(1) and (D)(2) of this rule, and consider the matter. The provost may discuss the matter with the parties and solicit additional information. Within fourteen calendar days after receipt of a report under paragraph (E)(5) of this rule or a written request under paragraph (D)(3)(b) or (D)(3)(c) of this rule, the provost will notify the faculty member, department chair, and dean which of the following courses of action he or she decided on:

(a) To proceed with disciplinary action as proposed, and with penalty as recommended, by the dean;

(b) To proceed with disciplinary action proposed by the dean, but with a different penalty;

(c) To decline to proceed with disciplinary action;

(d) If no decision is made within fourteen calendar days by the provost, the disciplinary action is at an end, and no further action on the alleged misconduct is available to the university.

(G) Request for hearing before the committee on faculty rights and responsibilities in cases initiated by departmental action

(1) If disciplinary action is initiated by the department chair and if the provost decides to proceed with disciplinary action and the faculty member is dissatisfied, the faculty member may obtain a hearing on the matter before the committee on faculty rights and responsibilities by submitting a written request to the provost, with a copy sent to the chair, within seven calendar days after receipt of the provost's memorandum.

(a) If a hearing is timely requested, the hearing procedures described in paragraph (H) of this rule will be followed.

(b) If a hearing is not timely requested, the provost's recommendation will be final, and no further review or appeal will be available.

(H) Hearing procedure

(1) The following hearing procedure is applicable (a) in all cases that involve a member of the faculty and to which the hearing procedure is made applicable by any provision of agency 3339 of the Administrative Code (including paragraphs (D)(4) and (G) of this rule); and (b) in any case that is initiated by a faculty member's exercise of an option to proceed under this section even though the case may have arisen under other university policies or procedures.

(a) Convening of hearing committee

The hearing committee will be made up as follows:

(i) In all cases the hearing committee will consist of all currently-sitting members of the committee of faculty rights and responsibilities who will be available during a period of time the case will be under consideration. A case may not proceed under this paragraph with fewer than five committee members unless all parties have given their written consent.

(ii) Any request that an individual member of the hearing committee be removed, based upon a claim that such member cannot be impartial in the particular case, will be resolved by the chair of the committee on faculty rights and responsibilities, unless the challenge is to the chair of rights and responsibilities, in which case the challenge will be resolved by the vice chair of the committee.

(iii) The provost's office, in consultation with the chair of the committee on faculty rights and responsibilities, will provide the hearing committee with staff support, including maintenance of the committee's records and assistance in scheduling its meetings and hearings.

(iv) Once the hearing committee has been convened, the documentation generated under paragraphs (D)(1) and (D)(2) or (D)(4) of this rule will be made available to the committee members for their review, and will be retained as part of the committee's file on the case.

(b) Prehearing conference

(i) The hearing committee will schedule a pre-hearing conference, to be attended by the faculty member, the provost, and any representatives permitted under the guidelines set forth in paragraph (H)(4)(c) of this rule. The department chair and dean may also attend the conference and the hearing, in the discretion of the provost. Ordinarily, a memorandum of the conference will be prepared by the committee and supplied to those in attendance and their representatives. The following matters should be among the goals for the conference:

(a) Provide opportunity for either party to object to participation by any hearing committee member because of perceived bias or otherwise;

(b) Review existing documentation and identify any additional documentation to be provided at the hearing;

(c) Define and/or limit issues;

(d) Obtain clear understanding as to each party's recommended outcome;

(e) Clarify representation; establish who is to receive notifications;

(f) Obtain lists of witnesses and evidence to be offered at the hearing;

(g) Establish schedule for exchange of additional documentation and witness lists;

(h) Obtain requests for committee assistance in securing the attendance of witnesses;

(i) Discuss anticipated logistical and evidence problems;

(j) Discuss any possibility of summary disposition (See paragraph (H)(3) of this rule);

(k) Invite any further written submissions;

(l) Review scheduling problems; consider convenience of expected witnesses; schedule hearing;

(m) Explain and discuss hearing procedures.

(c) Summary disposition

The hearing committee may, when a faculty member decides he or she does not wish a full hearing, process cases without a hearing by proceeding directly to make a recommendation as provided in paragraph (H)(4)(m) of this rule. Prior to making a summary recommendation, the committee will first discuss its proposed course of action at a meeting with both parties and will consider any objections to such procedure. It may also invite the parties to furnish documentary evidence, written statements, or other materials, in addition to the documentation submitted under paragraphs (D)(1) and (D)(2) or under paragraph (D)(4) of this rule, to assist the committee in this process. After considering the matter, the committee may decide the case summarily if convinced that substantially all pertinent evidence has been brought to its attention, and that any remaining issues of interpretation can be adequately considered without a hearing.

(d) Hearing guidelines

(i) Neither the hearing committee nor any of its members should engage in any investigative or fact-finding activities outside a meeting or hearing of the hearing committee at which both parties have the opportunity to be present. Individual members of the hearing committee should not discuss the matter outside of such a meeting or hearing.

(ii) All communications from the committee will go to both parties. All communications from either party to the committee will also go to other party.

(iii) The faculty member and the provost, as parties to the proceeding, are expected to be present for the hearing. Both may be represented by legal or other counsel, who may present written and testimonial evidence, question witnesses, and present arguments, all subject, however, to the control of the committee. In a disciplinary hearing, as opposed to a grievance hearing, the presence and advice of legal counsel or other counsel will be permitted. Upon request, the committee, at its discretion, may permit either party to have more than one representative, and may define or limit the participation of any such additional representative(s).

(iv) The hearing will be under the control of a member of the committee who has been designated to act as chair. Such chair shall have authority to take action to preserve decorum, to protect parties and witnesses, to rule on matters of procedure and evidence, and to otherwise control the conduct of the hearing, subject to the ultimate authority of the whole hearing committee.

(v) Both parties, or their respective representatives, shall have the right to submit evidence and cross-examine all adverse witnesses who testify in the matter. If the committee elects to accept a witness' written statement in lieu of live testimony, the identity of the witness and his or her statements shall be fully disclosed to the other side and opportunity given to answer such statements.

(vi) The hearing will ordinarily be private and confidential to the extent permitted by law. Witnesses other than the provost, department chair, dean and faculty member will ordinarily be present only while testifying.

(vii) The committee will not be informed of discussions held in connection with any mediation meeting on the case under paragraph (E) of this rule, and members of the mediation committee will not be permitted to provide testimony or other evidence regarding the mediation procedure.

(viii) Each party will be responsible for securing the attendance of witnesses whose testimony will be offered by such party. However, the committee will reasonably assist either party by requesting that witnesses attend and give testimony and itself can call additional witnesses or request documentation.

(ix) Pertinent records, exhibits, and written statements may be accepted as evidence for consideration by the hearing committee.

(x) Formal rules of evidence will not be followed; the committee may receive any evidence that it believes to be of probative value.

(xi) The hearing committee will determine the order of proceedings and other matters pertinent to the hearing. Normally, the following order will apply:

(a) Opening statements, if desired;

(b) Presentation of evidence in support of the claim that misconduct has occurred and the proposed penalty;

(c) Presentation of evidence by the faculty member in response;

(d) Presentation of any evidence by either party that might rebut claims made by the other party;

(e) Closing statements, if desired.

(xii) At the university's option, the hearing will be recorded electronically or by reporter. The original record shall be the property of the university. A copy will be made available at cost to the faculty member upon request.

(xiii) At the conclusion of the hearing, the hearing committee will deliberate in private. The hearing committee will provide a written report within fourteen calendar days after the conclusion of the hearing. The report will include findings of fact, conclusions drawn from these facts and recommendations. At its discretion, the hearing committee may include observations germane to the case.

(xiv) Once the hearing committee has transmitted its report to the parties, it will assemble all items of evidence and other documents that it considered in the matter, the record of the hearing, its report, and any other important records of the proceeding, and place them in the committee's file on the case together with the original documentation submitted under paragraphs (D)(1) and (D)(2) or (D)(4) of this rule.

The committee's files will be held by the office of the provost. The notes of individual committee members will be discarded.

(xv) Implementation. All recommendations made by the committee on faculty rights and responsibilities are to be implemented promptly unless appealed to the president.

If there is no appeal and the hearing committee has recommended that some action should be taken by a chair, dean, or other university official, the committee will notify that person to implement the recommendation promptly. If a person modifies or fails to act on the committee's recommendation, the committee may ask the president to order that its recommendation be carried out. If the recommendation is modified or not implemented, the committee may report this to faculty assembly for its action or instructions.

(I) Appeal to the president

(1) The report of the hearing committee may be appealed to the president within seven calendar days of receipt. Appeals to the president must be made in writing, with copies sent to both parties and to the committee on faculty rights and responsibilities. The following appeal procedure is applicable:

(a) The party appealing must specify the basis for objection to the hearing committee's report. Failure to so specify may result in dismissal of the appeal.

(b) The president will establish a schedule for the submission of materials and for the completion of any other steps involved in the appeal.

(c) The president will allow the parties to present argument on appeal. The president may decide whether to receive these arguments in writing, in person, or both. Regardless of the method used to present arguments, the president will allow each party to learn what the other has said and rebut these statements.

(d) The president's review on appeal will ordinarily be limited to those specific issues of fact, conclusions, or recommendations brought to his or her attention by the party appealing.

(e) The president shall be bound by the findings of fact made by the committee on faculty rights and responsibilities unless those findings are against the greater weight of the evidence. Due deference must be accorded to findings of fact of the committee on faculty rights and responsibilities since it is the committee who is best able to observe the demeanor of witnesses and weigh their credibility.

(f) After deliberating on the appeal, the president may respond to the hearing committee's report in the following ways:

(i) The president may concur with and order the hearing committees recommendations to be implemented immediately, unless there is an appeal to the board of trustees;

(ii) The president may remand the matter to the hearing committee for further consideration, and shall remand the matter to the hearing committee if the president disagrees with any of the committee's findings of fact, stating why; or

(iii) The president may reach different conclusions and/or determine not to follow the recommendations of the hearing committee, but only after consultation with the hearing committee. If, after the remand under paragraph (I)(6)(b) of this rule and after consultation with the committee, the president disagrees with the findings of fact the committee because, in the president's judgment, they are against the greater weight of evidence, the president may reach new findings. In any event, however, the hearing committee's conclusions, recommendations, and the findings of fact will remain unaltered as part of the record of the case.

(g) The president will promptly provide a written report of his or her decision on the appeal to the faculty member and to the hearing committee.

If the president, after consultation with the hearing committee, does not accept the hearing committee's conclusions or recommendations, the committee may report this to faculty assembly. If the president, after consultation with the hearing committee, does not accept the hearing committee's findings of fact, the committee must report this to faculty assembly. The committee may report to faculty assembly in either its annual report or by placing it on the agenda of a meeting of the faculty assembly for its actions or instructions.

(h) If the matter is remanded by the president to the hearing committee, copies of the remand determination and its reasons shall be provided to both parties. The hearing committee will reopen the proceedings and, at the conclusion thereof, submit a supplemental report to the president, the provost, and the faculty member. The president may then act according to the options afforded by paragraph (I)(6) of this rule as if acting on the hearing committee's original report, except that a matter may be remanded only once unless the hearing committee agrees to additional remands.

(J) Appeal to the board of trustees

(1) The president's decision may be appealed to the board of trustees, which has ultimate authority to take final action to promote the best interest of the university and to protect individual rights. The appeal must be filed with the secretary to the board within fourteen calendar days of receipt of the president's decision. The board shall review the record; the report and supplemental report, if any, of the hearing committee; and the written decision and remand determination, if any, of the president. In its review, the board may consult with the president and shall give both parties an opportunity to present argument to it. The board may decide to receive these arguments in writing, in person, or both. The board's action is final and shall be accompanied by a statement in writing setting forth its reasons.

(K) Interim suspension

(1) An interim suspension is a suspension imposed by the provost before the disciplinary procedures described in this rule are initiated or resolved.

(2) During an interim suspension, a faculty member is relieved of all employment responsibilities. Additional terms of suspension, such as loss of office and library access, may also be imposed.

(3) During an interim suspension, the faculty member's compensation will be continued until the procedures described in this rule are completed or twelve months have passed, whichever occurs earlier. Thereafter, after an order to the faculty member to show cause why the compensation should not be terminated, the provost may, upon due consideration, continue or discontinue compensation. Additionally, the provost may lift the interim suspension before the completion of the disciplinary procedures described in this rule.

(a) The provost initiates an interim suspension by informing the faculty member of the suspension orally or in writing. If the initial notification is given orally, the faculty member shall also receive written notification. Both the oral and written notifications shall include the following information:

(i) The terms of the interim suspension;

(ii) The reason for the interim suspension;

(iii) The faculty member has a right to request a meeting to be held before five p.m. the next business day with the provost, as described in paragraph (K)(2) of this rule.

(iv) The faculty member's right as described in paragraph (K)(3) of this rule to have the committee on faculty rights and responsibilities review the provost's decision to impose an interim suspension or any of its additional terms.

(b) The faculty member may request a meeting to be held before five p.m. the next business day with the provost for the purpose of opposing the interim suspension or any of its additional terms.

(c) Whether or not the faculty member has met with the provost, the faculty member may request that the committee on faculty rights and responsibilities meet with the faculty member and with the provost to review the provost decision to impose an interim suspension or any of its additional terms. The meeting(s) shall be held within three calendar days of the faculty member's request. For the purpose of the meeting(s), a quorum of the committee on faculty rights and responsibilities shall consist of members of the committee who can be convened during this time period.

(d) The committee on faculty rights and responsibilities shall, within twenty-four hours of the last of the meeting(s) with the provost and faculty member, make a recommendation to the provost that the interim suspension be continued, modified or lifted.

(L) General matters

(1) References in this rule to a particular officeholder are to be read as including another person serving in an acting or interim capacity for the officeholder and, except in the case of the president, any other person designated by the officeholder to serve in his or her stead. It is understood that for regional campus faculty the dean of the regional campuses will be consulted by the chair and dean and may be involved in these procedures to whatever extent is appropriate.

(2) In cases in which a hearing is held under paragraph (H) of this rule as a result of a referral or election made in a proceeding initiated under a different university policy or procedure:

(a) The hearing and appeal procedures will be adapted as necessary in order to allow for active participation by one or more complainants or university officials previously involved in the matter.

(b) The documentation provided to the hearing committee under paragraph (H) of this rule will be the documentation generated in the initial phase of the university procedure under which the proceeding was initiated.

(3) Time deadlines specified in this rule may be extended by agreement of the provost and faculty member or, in the absence of such agreement, by decision of the chair of the committee on faculty rights and responsibilities.

(4) The running of any time period specified in these procedures will be suspended during:

(a) Thanksgiving recess.

(b) Winter recess.

(c) Spring recess.

(d) The interval between the end of final examinations for spring semester and the date on which faculty are required to report for the fall semester.

(5) Disciplinary action is generally treated as confidential to the extent permitted by law. However, individuals involved, including witnesses, may be advised of the final outcome at the discretion of the president.

(6) Increases in salary and promotion in rank are based on merit and are not matters of right. Therefore, failure to grant either or both to a faculty member is not disciplinary action within the meaning of these procedures. However, a tenure, promotion or salary decision may be grieved on the basis of alleged procedural error, or academic freedom violation, or improper discrimination. Persons wishing to pursue this course are directed to rule 3339-8-01 of the Administrative Code, which describes the university grievance procedures.

(7) The committee on faculty rights and responsibilities is deeply committed to maintaining a disciplinary process that protects the rights of the institution, the accuser and the accused. The committee on faculty rights and responsibilities reserves the right to supplement or alter these disciplinary procedures any time it deems appropriate to protect the constitutional rights, including the right to academic freedom, of those involved or to comply with state and/or federal law. In particular, the committee notes that it may well be necessary to supplement and alter these procedures in cases involving alleged sexual harassment, sexual violence, domestic violence, dating violence, and stalking in order to comply with Title IX, including the US department of education's April 2011 dear colleague letter and the violence against women act.

Effective: 11/13/2016
Promulgated Under: 111.15
Statutory Authority: 3339.01
Rule Amplifies: 3339.01
Prior Effective Dates: 09/31/1999, 09/30/2000, 10/31/2002, 10/31/2006, 9/17/2010, 09/13/2012, 09/12/2013