AC70 Dismissal Procedure for Tenured and Tenure-Eligible Faculty Members (Formerly HR70)

POLICY'S INITIAL DATE: November 23, 2005

THIS VERSION EFFECTIVE: November 23, 2005

PURPOSE:

This policy is written to define the conditions and procedures under which tenured faculty members, or tenure-eligible faculty members against whom "out of time" dismissal is sought, may be dismissed from the University on grounds of adequate cause, financial exigency, or program elimination or revision.

SCOPE:

In the event that the University Administration seeks to dismiss a tenured faculty member for adequate cause, or seeks to dismiss a tenure-eligible faculty member during the provisional appointment period with less advance notice than that specified in AC23 Section IV.8, the faculty member shall be accorded due process, as is required by applicable law as specified in this AC70 Policy, including an opportunity for a hearing before the Standing Joint Committee on Tenure, prior to termination. Cases of substantive dispute involving the termination of a tenured appointment for reasons of financial exigency or program elimination or revision also shall be considered at a hearing by the Committee.

ADEQUATE CAUSE:

A tenured or tenure-eligible faculty member may be dismissed for adequate cause as determined in accordance with this policy. Adequate cause shall mean any one of the following: (i) lack of competence or failure to perform in relation to the functions required by the appointment, (ii) excessive absenteeism, (iii) moral turpitude, or (iv) grave misconduct. Dismissal for adequate cause will not be used to restrain or otherwise affect faculty members in the exercise of their individual or collective academic freedom or in contravention of other legal rights. Standards of notice as specified in AC23 Section IV.8 are not required in cases of dismissal for adequate cause.

INITIATION OF DISMISSAL PROCESS

A. The Steps That Shall be Followed to Initiate the Dismissal Process

1. Within a reasonable time after the occurrence of events that might give rise to termination for adequate cause are made known to the appropriate administrator(s), the faculty member will be provided with written notice from the administrator(s) of the alleged misconduct constituting adequate cause. The notice shall include a copy of or references to this AC70 policy and sufficient information concerning the allegations to enable the faculty member to make a meaningful response.
   
    
2. The faculty member will be given an opportunity to respond to the allegations either in writing or at a meeting with the appropriate administrator(s), or both, at the discretion of the faculty member against whom allegations of misconduct have been made. The affected faculty member shall be accorded a reasonable amount of time to prepare a response to the allegations.
   
    
3. The faculty member shall have the opportunity to meet with the appropriate administrator(s) and they will be given an explanation of the alleged misconduct. The administrator, at their discretion, may respond to the written submissions of the faculty member at this meeting. The appropriate ombudsperson shall be present as an objective, informational resource at the meeting unless the faculty member waives, in writing, the right to have the ombudsperson present. The meeting may be continued at the discretion of the administrator(s) should there be a need for additional time to resolve the matter or to obtain additional information or otherwise for other good cause.
   
    
4. Following this meeting, the faculty member will again be given an opportunity to respond in writing to the administrator(s).

B. Process After Initial Meeting

The purpose of the meeting(s) and responses listed above is to provide both parties with an understanding of the other party's position, as well as an opportunity to settle the matter without formal action.

1. If after the initial meeting an agreement is reached between the appropriate administrator(s) and the faculty member, then the matter will be resolved in accordance with the agreement.
   
    
2. If after the initial meeting(s) the matter remains unresolved, the appropriate administrator(s) may choose to dismiss the matter if no serious concerns remain regarding the faculty member's alleged misconduct. If serious concerns remain, the appropriate Dean will consult with the Executive Vice President and Provost about what further action, if any, should be taken.

C. Referral to Standing Joint Committee on Tenure

If both the Dean and the Executive Vice President and Provost concur that the disciplinary sanction of termination for adequate cause is warranted under the circumstances, the matter will be referred to the Standing Joint Committee on Tenure. The Dean will promptly advise the faculty member of that determination in writing by letter addressed to the affected faculty member and the Standing Joint Committee on Tenure. The Dean's letter shall set forth the specific basis for seeking adequate cause termination and the specific conduct which serves as the basis for the termination. Such written notification will advise the faculty member that the matter will be referred to the Standing Joint Committee on Tenure, unless the faculty member requests the opportunity to resign in lieu of termination.

D. Suspension Pending Ruling by Standing Joint Committee on Tenure

Ordinarily, the affected faculty member shall not be suspended prior to a final decision by the President. Suspension of the faculty member prior to a final decision by the President is justified only if there is reason to believe that material harm to the University, its faculty, staff, or students will occur or be threatened by the faculty member's continued active status during the proceedings. The suspension decision shall be made by the appropriate Dean with the concurrence of the Executive Vice President and Provost. The suspended faculty member shall be informed of the reasons warranting their suspension and may make a written objection to the suspension to the Standing Joint Committee on Tenure. Any such suspension shall be with full pay and benefits.

E. Burden of Proof

The burden of proof that adequate cause exists for the dismissal of the faculty member, or that substantial grounds exist justifying dismissal for financial exigency and program elimination, or revision, rests with the University and shall be satisfied only by clear and convincing evidence in the record considered as a whole.

STANDING JOINT COMMITTEE ON TENURE:

• Role of the Committee

  The Standing Joint Committee on Tenure acts solely in an advisory capacity to the President on matters pertinent to the dismissal of tenured or tenure-eligible faculty. It holds hearings to receive evidence and adjudicate the matter and to provide the President with a reasoned opinion and recommendation for action with respect to the request to dismiss a faculty member. The Standing Joint Committee on Tenure shall exercise its obligations in accordance with the procedural rules described in this AC70.

• Establishment of the Committee

  The Standing Joint Committee on Tenure shall consist of five members: two members selected by the administration, and three tenured faculty members selected by the elected faculty members of the University Senate. The Chair will be chosen by the Committee from the elected tenured faculty members.

• Committee Procedural Rules

1. Preliminary Evaluation. The Standing Joint Committee on Tenure will first evaluate whether or not the charges of misconduct described in the Dean's letter, if true, constitute adequate cause for dismissal. If the Committee rules that the charges, taken as true, do not constitute adequate cause for dismissal, the Committee will issue a pre-hearing report, recommending to the President that no further proceedings occur. If the President agrees with the Committee's pre-hearing report, he or she will terminate the dismissal process. However, should the President disagree with this initial determination, he or she shall so notify the Standing Joint Committee on Tenure and the Standing Joint Committee on Tenure shall, promptly upon receipt of this notice, conduct the hearing described below.

   Should the Standing Joint Committee on Tenure rule that the charges may, if proven, constitute adequate cause for dismissal, the hearing will be conducted and all parties will be notified in writing.

2. Commencement of Hearing. The faculty member against whom dismissal is sought shall have the opportunity to be heard and present their own defense before the Standing Joint Committee on Tenure. The Standing Joint Committee on Tenure shall convene a hearing within sixty (60) days, if reasonably possible, after the date of the Dean's letter referring the matter to the Committee. The hearing shall be limited to the matters described in the letter relating to the grounds on which termination of the faculty member is sought. Except in extenuating circumstances and subject to the concurrence of both parties, all members of the Committee must be present when the Committee meets at the hearing, including any continuance of the hearing, and during all deliberations of the Committee in connection with the hearing.

3. Persons Present. The persons entitled to be present at the hearing shall include:

   a. the faculty member,

   b. faculty member's advisor or legal representative,

   c. Committee members,

   d. legal advisor for the Committee,

   e. representative from the University Administration, and

   f. legal representative of the University Administration.

   Other persons may be present at the discretion of the Committee. Witnesses, if any, may not be present during any portion of the hearing other than during the time they are providing testimony to the Committee, absent a compelling reason noted in writing by the Committee.

4. Presiding Official. The Committee Chair shall conduct the hearing and the subsequent deliberations of the Committee.

5. Pre-hearing Submissions. The administration and the faculty member shall each submit to the Committee and to the other party the following items:

   i. At least fourteen (14) days prior to the commencement of the hearing, a complete list of witnesses intended to be called at the hearing, and a complete list of documents and copies of exhibits intended to be offered at the hearing. Except in extenuating circumstances, or where fairness requires, only those witnesses and exhibits listed may be called or offered at the hearing.

   ii. At least seven (7) days prior to the commencement of the hearing, a statement of the case including a brief summary of the content of each witness' expected testimony, a reference to the material exhibits, a reference to any controlling legal authorities, and a summary of the factual and legal argument of the party.

   iii. Such other items and documents, exhibits and other materials as the Committee might reasonably request before, during, or after the hearing.

   iv. The parties shall use utmost good faith to meet the deadlines specified herein; however, the failure to meet such deadlines shall not serve as a basis for refusing to accept late submissions of materials absent substantial prejudice to the other party.

6. Conduct of Hearing. Only sworn or affirmed witness testimony may be accepted at the hearing. Formal rules of evidence do not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded at the discretion of the Committee. Hearsay evidence may be introduced with caution, at the discretion of the Committee, but the hearsay nature of such evidence shall be taken into account by the Committee in determining the weight to be assigned to it. The Committee may rely on its legal advisor in making any determinations on the admissibility of evidence. The Committee Chair may modify these evidentiary guidelines and the procedures for the conduct of the hearing in the interest of conducting the proceedings in a fair and timely manner.

7. Hearing Schedule. After consultation with the parties, a date and time for the initial hearing and any subsequent hearings shall be determined by the Committee. Normally, the hearing shall be concluded in two days or less, except in extenuating circumstances as determined by the Committee. The parties shall present their respective positions and testimony from relevant witnesses in a concise, clear and focused manner, with due regard to completion of the hearing in an efficient, fair, and timely manner.

8. Presentation of Evidence. The parties are entitled to representation of counsel of their choosing at the hearing, and are entitled to cross-examine the other party's witnesses. The parties are entitled to offer their own witnesses and exhibits. The faculty member shall have the opportunity to be heard by the Committee to present their own position, buy may not be compelled to give testimony if they choose not to testify. In a hearing on charges of incompetence, the testimony shall include that of faculty members and other scholars from this or other institutions. The Committee shall determine, in its sole discretion, the means by which this testimony may be obtained, mindful of the need to provide all of the parties with the opportunity to obtain relevant information from such witnesses.

9. Stenographic or Other Recording. A stenographic or other recording of the proceedings shall be made. The Committee Chair or the Committee legal advisor shall arrange for the presence of the reporter or recorder. The full stenographic record of the hearing or a complete copy of the recording shall be provided to all parties promptly upon completion of the hearing, unless a party waives, in writing, the right to receive the transcript.

10. Ex-Parte Communications Prohibited. Any communication, direct or indirect, between parties and Committee members shall be prohibited, unless all parties are given notice and an opportunity to participate. No notice may be taken by the Committee of written materials unless all parties are given an opportunity to review or contest the materials, except written advice or opinions from the Committee legal advisor.

11. Confidentiality. The hearing shall not be open to the public, and the proceedings, reports, recommendations and other work product of the Committee in relation to dismissal shall be kept strictly confidential by the Committee members and all participants, except to the extent required by law or by court order.

12. Committee Recommendations. At the conclusion of the hearing, the Committee shall close the record and meet in executive session, along with the Committee's legal advisor, in order to deliberate. There shall be no post-hearing submissions by either party, unless directed by the Committee. The Committee shall issue a report on the hearing to the President, with a copy to the faculty members and the appropriate Dean, within 30 days from the date of completion of the hearing, unless extenuating circumstances require otherwise. The report shall set forth the Committee's findings based on the evidence presented at the hearing and its recommendation with respect to termination for adequate cause. Where the conclusion of the Committee is not unanimous, the report must fairly reflect the minority views expressed by the members. Dissenting or concurring opinions may be included at the request of any Committee member.

13. Final Decision by President. The President shall be the final decision-maker in all cases considered by the Standing Joint Committee on Tenure. The President shall notify the faculty member, the Standing Joint Committee on Tenure, and the appropriate Dean of their decision in writing. Once the President has made a final determination as to whether adequate cause for termination exists, the matter shall be closed and not subject to further review.

     

FINANCIAL EXIGENCY AND PROGRAM ELIMINATION OR REVISION:

A tenured or tenure-eligible appointment may be terminated for demonstrated financial exigency, and the affected faculty member may seek review of this termination by the Standing Joint Committee on Tenure under the "Committee Procedural Rules" described in this AC70. Termination of a continuous appointment because of financial exigency should be demonstrably bona fide. If a tenured appointment is terminated because of financial exigency, the released faculty member's position shall not be filled by a new appointee within a period of three years from the date of actual termination unless the released faculty member first has been offered and has not accepted reappointment.

A tenured or tenure-eligible appointment may also be terminated on the basis of program elimination or revision. Elimination on this ground may be effected only in the most extreme cases where the University demonstrates that for compelling reasons and after due academic consideration, including consultation with an appropriate Faculty Senate body, elimination or substantial revision of the program in which the faculty member's normal range of duties falls is necessary. Careful advance program and academic personnel planning, with phased adjustments over time, should operate to limit the necessity of terminating a tenured appointment in these circumstances. In the case of program elimination or substantial revision affecting a tenured faculty member's appointment, a good faith effort shall be made to continue the faculty member concerned in a comparable capacity with the University in any of its campuses, based upon the individual's competencies and the capabilities of the University.

A tenured faculty member terminated for reasons of program elimination or revision shall receive one year's notification prior to the date of the impending termination and may seek review of this termination by the Standing Joint Committee on Tenure under the "Committee Procedural Rules" described in this AC70. If a tenured appointment is terminated because of elimination or substantial revision, the released faculty member's position shall not be filled by a new appointee within a period of three years from the date of actual termination unless the released faculty member first has been offered and has not accepted reappointment.

CROSS REFERENCES:

AC23 Promotion and Tenure Procedures and Regulations

AC76 Faculty Rights and Responsibilities