4.10 Hearings and Reviews Committees and Processes
Faculty members may seek review of negative decisions or address grievances in accordance with the policies described in the Faculty Handbook and the relevant sections of the Code of the University of North Carolina.
There are three main committees that deal with these types of issues: the Faculty Hearings Committee, the Faculty Post-Tenure Review Appeals Committee,and the Faculty Grievance Committee.
Here are set forth the administrative and committee reconsideration process for the appeal of negative decisions on reappointment, promotion, tenure, and post-tenure. A reconsideration procedure affords the faculty member whose employment is to be terminated a fair hearing on the termination if the faculty member alleges that the decision to terminate was based on non-permissible reason as specified in Section 4.09F.2, a flawed process, or material procedural irregularity.
These review processes include the following:
· Review of non-reappointment decisions and decisions not to recommend for tenure when non-reappointment is involved
· Review for promotion and tenure decisions not involving reappointment (early tenure)
· Review of discharge or the imposition of serious sanction (for those with tenure)
· Reconsideration hearing for termination of a position for financial exigency or major curtailment/elimination of a program
A. Administrative Reconsideration
1. The administrative reconsideration process for review of the negative recommendations of the Provost on reappointment, promotion or tenure would include the following:
a. A faculty member who wants the Provost’s recommendation to be reconsidered must file a written request for reconsideration with the Provost no later than 10 days after receiving written notice of the negative recommendation. Failure to file the written request in a timely manner waives further recourse to institutional review, grievance, and hearing procedures. The written request for reconsideration shall consist of a short statement setting out the faculty member's specific reasons for believing that the negative recommendation was inappropriate.
b. Review shall be limited to a reconsideration of the material and matters presented and considered during the original review in accordance with published criteria.
c. The reconsideration process is as follows:
1) Within five days of receipt of the request for reconsideration, the Provost shall meet with the faculty member to discuss the request.
2) After meeting with the faculty member, the Provost shall seek additional advice and information. Among the options are the following:
a) Instruct the department head and/or dean to meet with the faculty member and to then reconsider the matter, after receiving advice from advisory committees and considering the statements of the faculty member
b) Consult with the university-level advisory committee
c) If a department, college, or university tenure, promotion, reappointment committee meets to reconsider the matter, the faculty member shall have the right to present in person the basis of the request for reconsideration.
d) Within 20 days of the Provost’s receipt of the request for reconsideration, the Provost shall notify the faculty member and the Chancellor in writing of the results of the reconsideration process.
d. The Chancellor will inform the faculty member of his/her decision. A faculty member may request review of the Chancellor's negative decision on reappointment, promotion, or tenure provided that 1) the negative decision was preceded by a positive recommendation from the Provost or 2) the faculty member had requested, in a timely fashion, reconsideration of the Provost’s negative recommendation.
B. Faculty Hearings Committee
This committee deals with the due process provisions of Chapter VI of the Code of the University of North Carolina. Election of the members of the Faculty Hearings Committee is set forth in the Bylaws of the Faculty in Article V.
* The term "working days" as used in these policies means any day (excluding Saturdays and Sundays) on the undergraduate Academic Calendar that classes are scheduled to be in session during the faculty member's contracted employment term, not including summer sessions.
1. Procedures for further review of non-reappointment decisions and decisions not to recommend for tenure when non-reappointment is involved.
a. Request for review by the Faculty Hearing Committee and initial consideration of the request.
1) A faculty member may request review by the Faculty Hearing Committee of the Chancellor’s negative decision if, and only, if (1) the negative decision was preceded by a positive recommendation from the Provost or (2) the faculty member had requested, in a timely fashion, reconsideration of the Provost’s negative recommendation.
2) A faculty member has 10 days from receipt of the negative decision to request the Faculty Hearing Committee to review the matter. This review is limited solely to determining whether the non-reappointment decision was based upon any of the grounds stated to be impermissible in Section 4.06 or whether the decision was attended by a material procedural irregularity. The request to review the non-reappointment decision shall specify the grounds for which the faculty member contends that the decision is impermissibly based, with a short, plain statement of facts that the faculty member believes supports the contention. The request must be written and addressed to the chair of the Faculty Hearing Committee. If a faculty member makes no request to the committee in the time allowed, further recourse to institutional grievance and hearing procedures is waived.
3) “Material procedural irregularity” means a departure from prescribed procedures governing reappointment or conferral of tenure that casts reasonable doubt upon the validity of the original decision not to reappoint or not to confer permanent tenure. Whether a material procedural irregularity occurred shall be determined by reference to those procedures that were in effect when the initial decision not to reappoint or not to confer tenure was made.
4) A request to review a non-reappointment decision constitutes on the faculty member's part (1) a representation that the faculty member can support the faculty member's contention by factual proof and (2) an agreement that the institution may offer in rebuttal of the faculty member's contention any relevant information within its possession.
5) The Faculty Hearing Committee shall consider the request and grant a hearing if it determines that (a) the request contains a contention that the decision was either impermissibly based under Section 4.09F.2 or attended by a material procedural irregularity and (b) the facts suggested, if established, will support the contention. A denial of the request finally confirms the decision. If the request is granted, a hearing shall be held within 10 days after the request is received; the faculty member shall be given at least five days' notice of the hearing.
b. Conduct of the hearing
The hearing shall be conducted informally and in private with only the members of the Faculty Hearing Committee, the faculty member, an academic administrator selected by the Chancellor, and such witnesses as may be called in attendance, except that the faculty member and the academic administrator may each be accompanied by a person of their choosing. Such person may not be an attorney. Committee members who hold appointments in the faculty member's department, or who will testify as witnesses, or who have any other conflict of interest are disqualified from participating in that hearing. A verbatim record of the proceedings shall be made and, upon request, provided to the faculty member. The committee may consider only such evidence as is presented at the hearing and need consider only the evidence offered that it considers fair and reliable. All witnesses may be questioned by the committee members, the faculty member, the academic administrator, and the representatives of the faculty member and department head. Except as herein provided, the conduct of the hearing is under the committee chair's control that is charged with providing a full and fair hearing.
c. Hearing procedure
The hearing shall begin with the faculty member's presentation of contentions, which shall be limited to those grounds specified in the request for a hearing and supported by such proof as the faculty member desires to offer. When the faculty member has concluded the presentation, the committee shall recess to consider whether the faculty member has established a prima facie case. If the committee determines that the contention has not been so established, it shall so notify the parties to the hearing and thereupon terminate the proceedings. Such termination confirms the decision not to reappoint. If the committee determines that rebuttal or explanation is desirable, it shall so notify the parties and the hearing shall proceed. The academic administrator may then present in rebuttal of the faculty member's contentions, or in general support of the decision not to renew, such testimonial or documentary proof as the department head desires to offer, including his/her own testimony.
At the end of such presentation, the committee shall consider the matter in executive session. The burden is upon the aggrieved faculty member to satisfy the committee that the faculty member's contention is true.
d. Procedure after the hearing
If the Faculty Hearing Committee determines that the faculty member's contention has not been established, it shall, by only a simple unelaborated written statement, so notify the faculty member, the department head, the dean, the Provost, and the Chancellor. Such a determination confirms the decision not to reappoint. If the committee determines that the faculty member's contention has been satisfactorily established, it shall so notify the faculty member, the department head, the dean, the Provost, and the Chancellor by a written notice that shall include a recommendation for corrective action by the Chancellor and a finding of facts that supports the recommendation.
Within 30 days after receiving the recommendation of the committee, the Chancellor shall notify the faculty member, the department head and dean, and the Provost, and the Chair of the Faculty Hearing Committee of the Chancellor's decision with respect to the committee's recommendations and the original decision not to reappoint.
Further appeal, if any, shall be in accordance with the Code of the University of North Carolina.
2. Review for promotion and tenure decisions not involving reappointment (early tenure).
a. Further review is limited to that review available under the Grievance Procedures for University Faculty.
3. Review before discharge or the imposition of serious sanction (or the due process hearing before discharge or the imposition of serious sanction)
a. The hearing shall be on the written specification of reasons for the intended discharge. The parties to the hearing shall be the faculty member and an academic administrator designated by the Chancellor. The Faculty Hearing Committee shall accord the parties no less than 20 days from the time the committee receives a written request for a hearing to prepare their presentations. The hearing committee chair may, upon either party’s written request and for good cause, extend this time by written notice to the parties.
b. To the extent allowed by law, the hearing shall be closed to the public unless the faculty member and the Faculty Hearing Committee agree that it may be open. The parties shall have the right to counsel, to present the testimony of witnesses and other evidence, to see, hear, confront and cross-examine adverse witnesses, and to examine all documents and other adverse demonstrative evidence. Because the University has the burden of proof, the Chancellor’ designee shall first present evidence in support of the proposed disciplinary action. The Chancellor’s designee must demonstrate, by a preponderance of the evidence, that there is adequate cause for the proposed disciplinary action. A written transcript of all proceedings shall be kept. Upon request, a copy thereof shall be furnished to the faculty member at the institution's expense.
c. In reaching decisions on which the written recommendations to the Chancellor shall be based, the committee shall consider only the evidence presented at the hearing and such written and oral arguments as the committee, in its discretion, may allow. The committee shall make its written recommendation to the Chancellor within 10 days after its hearing concludes. The written recommendation shall include findings of fact that support the recommendation.
d. If the Chancellor concurs in a recommendation of the committee that is favorable to the faculty member, the Chancellor's decision shall be final. If the Chancellor either declines to accept a committee recommendation that is favorable to the faculty member or concurs with a committee recommendation that is unfavorable to the faculty member, the faculty member may appeal the Chancellor's decision to the Board of Trustees. This appeal shall be transmitted through the Chancellor and be addressed to the Chair of the Board. Notice of appeal shall be filed within 10 days after the faculty member receives the Chancellor's decision. The appeal to the Board of Trustees shall be decided by the full Board of Trustees. However, the Board may delegate the duty of conducting a hearing to a standing or ad hoc committee of at least three members. The Board of Trustees, or its committee, shall consider the appeal on the written transcript of hearings held by the Faculty Hearing Committee, but it may, in its discretion, hear such other evidence as it deems necessary. The Board of Trustees' decision shall be made within 90 days after the Chancellor has received the faculty member's request for an appeal to the Trustees. This decision shall be final except that the faculty member may, within 10 days after receiving the Trustees' decision, file a written petition for review with the Board of Governors if the faculty member alleges that one or more specified provisions of the Code of the University of North Carolina has been violated. Any such petition to the Board of Governors shall be transmitted through the President and the Board shall, within 45 days, grant or deny the petition or take such other action as it deems advisable. If it grants the petition for review, the Board's decision shall be made within 45 days after it has notified the faculty member that it will review the petition. For purposes of this paragraph, the word “days” shall mean consecutive calendar days.
4. Reconsideration hearing for termination of a position for financial exigency or major curtailment or elimination of a program
This reconsideration shall be limited solely to a determination of the contentions made in the faculty member's request for reconsideration. The reconsideration hearing shall be held promptly, but the committee shall allow the faculty member at least five days from the time it receives the faculty member's written request for a hearing to prepare for it. The jurisdiction of the committee shall be solely to consider whether the selection of the faculty member for termination was arbitrary or capricious and the committee's jurisdiction does not extend to a reconsideration of whether a financial exigency exists or a program should be curtailed or eliminated.
a. Conduct of hearing
The hearing shall be conducted informally and shall be closed to the public. The faculty member and the Chancellor or his/her designee have the right to attend, to legal counsel, to present the testimony of witnesses and other evidence, to confront and cross-examine adverse witnesses, and to examine all documents and other adverse demonstrative evidence. The faculty member and the committee shall be given access, upon request, to Western Carolina University documents that were used in making the decision to terminate the faculty member after the decision was made that a faculty member's employment must be terminated. If the faculty member requests it, a transcript of the proceedings shall be given to the faculty member at the institution's expense. The committee may consider only such evidence as is presented at the hearing and need consider only the evidence offered that it considers fair and reliable. All witnesses may be questioned by committee members. Except as herein provided, the conduct of the hearing is under the committee chair's control.
A quorum for purposes of the hearing is a simple majority of the committee's total membership. No member of the faculty member's department, or anyone who participated directly in the decision to terminate this faculty member, or anyone with other substantial conflict of interest shall serve on the committee for this hearing.
b. Hearing procedure
The hearing shall begin with the faculty member's presentation of contentions, limited to those grounds specified in the request for hearing and supported by such proof as the faculty member desires to offer. The Chancellor or the Chancellor's representative may then present in rebuttal of the faculty member's contentions, or in general support of the decision to terminate the faculty member's employment, such testimonial or documentary proofs as he/she desires to offer, including his/her own testimony.
At the end of this presentation, the Faculty Hearing Committee shall consider the matter in executive session and shall make its written recommendations to the Chancellor within 10 days after its hearing concludes. The burden is on the faculty member to satisfy the committee that the faculty member's contention is true by the greater weight of the evidence.
c. Procedure after hearing
If the Faculty Hearing Committee determines that the faculty member's contention has not been established, it shall, by a simple, unelaborated written statement, so notify the faculty member and the Chancellor. The faculty member may then appeal the decision to terminate the faculty member's employment in the manner provided by the Code of the University of North Carolina.
If the Faculty Hearing Committee determines that the faculty member's contention has been satisfactorily established, it shall so notify the faculty member and the Chancellor in writing. The committee shall also provide written recommendation for corrective action to the Chancellor.
Within 10 days after receiving the recommendation, the Chancellor shall send to the faculty member and the Chair of the Faculty Hearing Committee written notice of what modification, if any, the Chancellor will make with respect to the original decision to terminate the faculty member's employment. If the Chancellor does not reverse the original decision, the faculty member may appeal the termination in the manner provided by the Code of the University of North Carolina. If the Chancellor concurs in a recommendation of the Faculty Hearing Committee that is favorable to the faculty member, the Chancellor's decision is final.
C. The Faculty Post-Tenure Review Appeals Committee
1. Membership and chair
a. The Faculty Post-Tenure Review Appeals Committee shall consist of nine elected faculty members, each of whom shall have tenure. No officer of administration shall serve on the committee. For purposes of this section, "offices of administration" shall be deemed to include department heads. Appointment to department head or to a higher-level administrative position during a committee member's term of service shall force resignation from the committee.
b. At least one faculty member from each of the colleges and the library of the University shall serve, but no more than one-third of the members shall be from any one college. At least two members from each of the academic ranks of professor and associate professor shall serve on the committee. A member's promotion in rank during a term of office shall not terminate membership.
c. Each member shall serve a three-year term, the terms staggered so that three members are elected each year.
d. The chair shall be elected by and from the membership of the committee and shall serve for one year. The chair may be elected to successive terms.
2. Duties and responsibilities
a. The committee is authorized to hear, mediate, and advise with respect to the adjustment of grievances of faculty members of the general faculty who have concerns relating to the post-tenure review. The power of the committee is solely to hear representations by the persons directly involved in the appeal, to mediate voluntary adjustments by the parties, to hold a hearing if necessary, and to inform appropriate administrative officials. The decision of the Post-Tenure Review Appeals Committee will be binding. Adjustment in favor of an aggrieved faculty member will be given to the Chancellor only after the dean, department head, or other administrative official most directly empowered to adjust it has been given similar advice and has not acted upon it within a reasonable time.
b. Appeals within the province of this committee include all those matters related to the faculty member's post-tenure review status.
3. Principle procedures
a. Preface
Faculty members are encouraged to pursue an informal resolution of any matter that might be the subject of an appeal before utilizing these procedures.
b. Scope
These procedures are to be used only for post-tenure review appeals
c. Grievance policy and procedure
1) Initiation of grievance
A faculty member shall institute the appeal procedure by submitting a written appeal to the lowest level academic administrator with authority to correct or pursue adjustment of the situation precipitating the grievance. The appeal must be filed within 15 working days*after the faculty member has been given written notification of the unsatisfactory results of the post-tenure review and/or improvement plan. If no grievance is filed within this period, the faculty member will have no further right to an internal appeal procedure. An appeal may be made upon each review of the faculty member's performance.
2) The appeal shall be a concise statement setting out the following:
· Description of the evidence which supports the faculty member's appeal.
· The specific corrective action requested by the faculty member.
3) Review of the statement
a) The administrator receiving the formal appeal shall immediately notify the Provost and shall immediately send the Provost a copy of the faculty member's appeal.
b) Within 10 working days after receipt of the grievance, the administrator shall meet with the faculty member to discuss the matter. The administrator may, with the faculty member's agreement, ask other administrators to attend the meeting.
c) Within 10 working days after the meeting with the faculty member, the administrator shall deliver to the faculty member a written response to the appeal. The written response shall notify the faculty member of the faculty member's right to appeal to the Post-Tenure Review Appeal Committee and opportunity to obtain assistance through the faculty member's own efforts and at the faculty member's own expense. Enclosing a copy of these procedures shall be adequate notification of appeal rights.
d. Appeal to the Post-Tenure Review Committee
1) If the faculty member desires to appeal the decision of the administrator, a written statement of appeal shall be delivered by the faculty member to the Chair of the Faculty Post-Tenure Review Appeal Committee within 10 working days following the faculty member's receipt of the administrative supervisor's decision. The statement of appeal shall include the original appeal, a written summary of any additional facts or arguments that are said to support the original grievance, and the written response from the administrator. If no appeal is filed within the prescribed period, the employee has no further right to internal appeal procedures.
2) Committee procedure
a) Members of the committee may decline to serve in a particular case for personal reasons. Members directly involved in an appeal shall not serve.
b) The committee shall meet and decide whether mediation will be attempted or whether the appeal merits a hearing.
c) Upon receipt of a petition, the committee first may offer its services as mediator, if the dispute apparently is amenable to such an approach and if the parties to the dispute express their willingness to cooperate with such an effort. Neither party is obliged to engage in mediation; it is a consensus undertaking.
The Faculty Post-Tenure Review Committee's offer to serve as mediator should be made no later than 20 working days after the committee chair receives the appeal from the grievant. As mediator, the committee's role is limited to efforts at facilitating communication between the parties and encouraging the discovery of a mutually agreeable basis for voluntary resolution of the dispute. Mediation does not entail evidentiary hearings, findings of fact, or recommendations to responsible administrators for resolving the dispute.
When mediation succeeds, the appeal is withdrawn and the parties may implement the solution they have achieved. When performing its mediation role, the Faculty Post-Tenure Review Committee should designate one or more of its members to serve as mediator, while insuring that a quorum of the committee membership is reserved to function as a hearing body in the event mediation does not succeed.
Mediation may be terminated by either party or the mediators by filing a simple written notice of termination with the chair of the Faculty Post-Tenure Review Appeal Committee.
d) If mediation is not deemed appropriate to the case or if it fails to produce a voluntary resolution, the Faculty Post-Tenure Review Appeal Committee must hold a hearing in response to the statement of appeal.
e) If a hearing is held, the following procedure shall apply:
1.) The hearing shall be held no later than 20 working days after the committee chair receives the appeal from the grievant unless mediation is attempted or an extension is issued by the Committee chair. The committee chair has authority to grant extensions on the chair's own motion or the motion of any of the parties. An extension may be issued only for good cause as determined by the committee chair. An extension may not exceed 10 working days in length; however, more than one extension may be granted.
2.) The committee shall serve a Notice of Hearing on the grievant, the administrator(s) who has been identified as a party to the grievance and/or the departmental peer committee no later than 10 working days before the hearing. The notice shall include the date, time and place of the hearing, the grievant's request for appeal, the composition of the hearing body after mediators have been excused and any potential conflicts have been resolved, the names of all parties to the grievance, and the issues to be considered by the committee.
3.) Each party shall have a maximum of two challenges without cause and an unlimited number of challenges with cause. Challenges shall be filed in writing with the committee chair at least five working days in advance of the hearing. The unchallenged committee members shall have the authority to decide whether a committee member challenged for cause should be disqualified. If the chair is thus removed, the committee shall elect a new chair after committee replacements, if any, have been appointed. A minimum of five members is required for any action taken. In the event that fewer than five members remain after challenges are allowed, the secretary of the faculty shall make temporary appointments in accordance with 1.7.2(e) of the Faculty Constitution of Western Carolina University.
The formal rules of evidence shall not apply; however, the committee chair has the authority to reject evidence that is repetitive or has no relevance to the issues. The issues to be heard are limited to those raised by the written grievance. The hearing will be open to the public unless any party to the grievance requests that it be private. Attorneys are not authorized to participate at the hearing on behalf of the parties. However, each party may select one faculty member to provide assistance; the assisting faculty member may not be an attorney. The parties may present the testimony of witnesses and other evidence may confront and cross-examine adverse witnesses and may examine all documents and other adverse demonstrative evidence. Committee members may question any witness and may call witnesses when the committee deems such action appropriate. A "record" of the hearing shall be kept. Upon request, a copy of the "record" shall be furnished to the appealing faculty member.
4.) The grievant presents evidence, through documentation or testimony, that is the basis for the appeal. The administrator(s) named as a party may then present documentation or testimony in response. Rebuttal may be allowed at the discretion of the committee.
5.) The committee chair shall have complete authority to ensure a full and fair hearing including, but not limited to, the authority to grant extensions, recesses and adjournments, require the taking of oaths, require witnesses to stay outside the hearing room before or after testifying, set time limits for arguments, and terminate or recess the proceeding if it becomes unproductive due to disruptive behavior. Normally, however, the hearing should be concluded no later than 10 working days after it begins.
6.) In developing its recommendations, the committee shall consider only the evidence presented at the hearing and such written or oral arguments as the committee in its discretion may allow. The committee shall also make findings of fact to support its recommendation(s).
7.) The chair shall report the committee's findings of fact and recommendations to the grievant, the other parties and the Provost within five working days following the termination of the hearing.
8.) The administrator/party with authority to resolve the matters raised by the committee recommendations shall have five working days to serve a written response to the committee's recommendations upon the grievant and the committee chair.
f) If the grievant is not satisfied with the disposition of the grievance, the grievant shall have five working days to serve a simple statement of appeal upon the Chancellor and the Faculty Hearing Committee. Upon receipt of the statement of appeal, the committee chair shall forward to the Chancellor the record of the hearing, if a hearing was conducted, and all matters of record prepared and collected by the committee including the written grievance, the committee's findings of fact, the committee's recommendation(s), the administrator's written response and all evidence gathered. Upon review of the committee's recommendations, the Chancellor shall notify the faculty member, the committee, and the other parties of the Chancellor's decision in a timely fashion.
e. Outside appeal privilege
The faculty member may appeal pursuant the Code of the University of North Carolina provided that the appeal is transmitted through the Chancellor within 10 consecutive calendar days after receipt of written notice to the Chancellor.
f. Changes to the post-tenure review appeal procedures shall be made in the following manner:
1) Substantive changes (as defined by the Rules Committee of the Faculty Senate) shall be approved by the general faculty according to procedures in Article VII of the Bylaws of the General Faculty of Western Carolina University
2) Changes due to directives from general administration shall be made automatically with the general faculty being informed by the Chair of the Faculty.
3) Minor changes (as defined by the Rules Committee of the Faculty Senate) shall be made by the Faculty Senate with the general faculty being informed by the Chair of the Faculty.
D. Faculty Grievance Committee
See Article IV of the Bylaws of the General Faculty