Appendix G: Pre-Termination Hearing Before Tribunal and Decision by the President

If the faculty member makes a timely election to contest the charge(s) through a hearing by a university tribunal as described in Sections 4.10.2A(7(c) or 4.10.2B(5)(c), the faculty member must confirm in writing the decision to waive the right to a hearing under the Uniform Administrative Procedures Act, and the president shall inform the Faculty Senate President that a tribunal will be convened. The matter shall then proceed in accordance with the tribunal procedures described below with the faculty member’s termination stayed pending the conclusion of those procedures.

A. Composition of the Tribunal

The university tribunal shall consist of five members who are appointed by the Senate and five members appointed by the president. Faculty members of the tribunal must hold tenure, must be full-time, and may hold administrative appointments. The Faculty Senate will provide a list of 12 eligible faculty members that represent the breadth of the university faculty to the president. The president will select five faculty from the list provided by the Faculty Senate to serve on the tribunal and one amongst the five to serve as the tribunal chairperson. The president will provide a list of 12 eligible faculty members that represent the breadth of the university faculty to the Faculty Senate. The Faculty Senate will select five faculty from the list provided by the president. The faculty member under review may reject up to a maximum of two appointments from the 10 tribunal members selected. If a tribunal member is rejected by the faculty under review, the Faculty Senate will select a replacement from the president’s list if the rejected member was from the president’s list or the president will select a replacement from the Faculty Senate’s list if the rejected member was from the Faculty Senate’s list.

B. Notice of Hearing

The president shall give the faculty member written notice of the hearing date at least 30 calendar days in advance. The president shall issue a scheduling order to ensure that the tribunal’s written findings, reasoning, and conclusions are submitted to the president within 120 calendar days from the date the faculty member has been provided with written notice of termination described in Sections 4.10.2A(7)(c) and Sections 4.10.2B(5)(c) of this handbook. A scheduling order shall not be modified except by leave of the president upon a showing of good cause.

C. Representation

If the university intends to be represented by legal counsel, the written notice of the hearing date shall so advise the faculty member. The written notice shall also state the faculty member’s right to be represented by legal counsel or other representative of his or her choice. If the faculty member intends to be represented by legal counsel, he or she must notify the tribunal chairperson within 10 days of receipt of the written notice of the hearing date. If the faculty member fails to give timely notice of legal representation, the hearing date shall be postponed at the university’s request.

D. Waiver of Hearing

If, at any time prior to the hearing date, the faculty member decides to waive his or her right to a hearing and respond to the charge(s) only in writing, the tribunal shall proceed to evaluate all available evidence and rest its recommendation upon the evidence in the record.

E. Pre-hearing Preparation

 The faculty member and the university shall have a reasonable opportunity prior to the hearing to obtain witnesses, specific documents, or other specific evidence reasonably related to the charge(s).

F. Evidence

The tribunal is not bound by legal rules of evidence and may admit any evidence of probative value in determining the issues. The tribunal shall make every reasonable effort, however, to base its recommendation on the most reliable evidence. For all cases involving unsatisfactory performance, the evidence shall include the testimony of qualified faculty members from this and/or other comparable institutions of higher education who are able to evaluate the performance of a faculty member in his or her discipline.

G. Confrontation and Cross-Examination of Witnesses

The faculty member and the university shall have the right to confront and cross-examine all witnesses. If a witness cannot or will not appear, but the tribunal determines that his or her testimony is necessary to a fair adjudication of the charge(s), the tribunal may admit as evidence the sworn affidavit of the witness. In that event, the tribunal shall disclose the affidavit to both parties and allow both parties to submit written interrogatories to the witness.

H. Adjournments

The tribunal shall grant adjournments to allow either party to investigate evidence to which a valid claim of surprise is made. The tribunal may grant one such adjournment for a period of no more than five calendar days. If the tribunal wishes to grant an adjournment for more than five calendar days, or wishes to grant more than one adjournment, the tribunal shall notify the president of the proposed adjournment, provide an explanation of the need for the adjournment, and provide a recommendation regarding the length of the adjournment. If the president concurs in the tribunal’s recommendation that an adjournment be granted, the president shall give the faculty member written notice of the date on which the hearing will resume.

I. Burden of Proof

The burden of proof that adequate cause exists rests with the university and shall be satisfied only by clear and convincing evidence in the record considered as a whole.

J. Findings and Conclusions

The tribunal shall make written findings and conclusions and shall provide a copy to the faculty member at the time of submission to the president. If the tribunal concludes Adequate Cause for termination has not been established, it shall so report to the president, with supporting reasons. In the case of a split decision, a minority report should be included. If the tribunal concludes Adequate Cause for termination has been established but that a sanction other than termination should be imposed, it shall so recommend to the president, with supporting reasons. In the case of a split decision, a minority report should be included. If the tribunal concludes Adequate Cause for termination has been established and that termination is the appropriate sanction, it shall so report to the president, with supporting reasons. In the case of a split decision, a minority report should be included.

K. Transcript of the Hearing

A verbatim record of the hearing shall be made, and a transcript shall be provided to the faculty member and the president at the time of the tribunal’s submission of the findings, reasoning, and conclusions.

L. Decision by the President

Upon receipt of the tribunal’s findings, reasoning, and conclusions, the president shall provide an opportunity for written argument by the parties and may provide the parties an opportunity to present oral argument. After considering the tribunal’s findings, reasoning, and conclusions and any arguments of the parties, the president will determine whether Adequate Cause has been established and whether termination is the appropriate sanction.

If the president concludes that Adequate Cause has not been established, the president shall provide the faculty member with written notice of the conclusion (with a copy to the tribunal, provost, dean, and department chair), and shall include in the notice any further actions in accordance with this handbook or university policy. If the president concludes that Adequate Cause has been established but that a sanction other than termination should be imposed, including without limitation suspension without pay, the president may impose the lesser sanction by written notice to the faculty member (with a copy to the tribunal, provost, dean, and department chair). The notice shall include the date on which the sanction will become effective.

The decision of the president is final and is not appealable. If the president concludes that Adequate Cause has been established and that termination is the appropriate sanction, the president shall provide the faculty member with a written notice of termination stating the grounds for termination (with a copy to the tribunal, provost, dean, and department chair).

The notice of termination may include or adopt the written findings and conclusions of the tribunal if applicable to the president’s decision. The notice shall include the date on which termination will become effective. The decision of the president shall be final and is not appealable.