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SECTION 350.4: BOARD REGULATIONS ON HEARINGS AND APPEALS
SOURCE: SBHE Policy Manual, Section 605.1, 605.2, 605.3, 605.4
- A faculty member may request a hearing with the Standing Committee on Faculty
Rights by filing a written notice, accompanied by a specification of the reasons
or the grounds upon which the appeal is based, with the Committee chair or
senior member of the Committee and the institution's president. The institution
shall have ten business days from receipt by its president of the notice and
specifications to file a response with the Committee Chair or senior member
of the Committee and the faculty member.
- The Committee shall appoint, at the expense of the institution according
to institution procedures, a hearing officer with authority to conduct pre-hearing
meetings, supervise exchange or collection of information, advise the Committee
or preside over the hearing. The faculty member, the institution and their
representatives shall comply with all reasonable directives and requests of
the hearing officer appointed by the Committee. The institution shall provide
necessary clerical support for the Committee, and upon request, for the hearing
officer.
- The Committee or the hearing officer shall hold a pre-hearing meeting or
meetings in order to (a) simplify the issues, (b) effect stipulations of facts,
(c) provide for the exchange of documentary or other information, or (d) achieve
such other appropriate pre-hearing objectives as will make the hearing fair,
effective, and expeditious. The faculty member, the institution and their
representatives shall participate in pre-hearing meetings upon request and
comply with the directives of the Committee or the hearing officer. ("Discovery"
is defined as the exchange or collection of information.) Discovery shall
be informal and formal depositions or interrogatories for the purposes of
discovery are not permitted, except with agreement of the parties.
- The Committee or the hearing officer shall serve written notice of hearing
on the faculty member and the president or their representatives at least
twenty calendar days prior to the hearing.
- The faculty member and the institution may stipulate to a decision on the
basis of the written statements, in which case the Committee shall make its
decision on that basis.
- During the proceedings the institution and the faculty member are entitled
to have an administrative or academic advisor and counsel of their choice
and at their own expense. Proceedings concerning the appointment or removal
of a faculty member may, pursuant to N.D.C.C. Section 15-10-17, be closed,
unless the faculty member requests that the proceedings be open, in which
case the proceedings shall be open. Proceedings not concerning the appointment
or removal of a faculty member, including proceedings concerning discipline
not involving dismissal, shall be open.
- A verbatim transcript of the hearing or hearings shall be made at the institution's
expense and shall be accessible to both parties. A party shall be provided
a copy of the record, or part of the record, upon request, at the institution's
expense.
- The findings of fact, conclusions and the decision shall be based solely
on the evidence received by the Committee. In cases brought under section
605.3(4), the faculty member has the burden of persuasion to prove, by a preponderance
of the evidence, that the action violated the faculty member's rights; in
cases appealed pursuant to section 605.3(8) or (9), the burden of proof that
grounds for the institution's action exist shall rest with the institution
and be satisfied only by clear and convincing evidence in the record considered
as a whole.
- The Committee may admit any evidence which is of probative value in determining
the issues or if the interests of justice will best be served by admitting
the evidence. Every reasonable effort shall be made to obtain the most reliable
evidence available. The Committee shall grant adjournments to enable either
party to investigate evidence as to which a valid claim of surprise is made.
- The faculty member shall be afforded an opportunity to obtain necessary
witnesses and documentary or other evidence. The institution shall cooperate
with the Committee in securing witnesses and making available documentary
and other evidence. The faculty member and the institution shall have the
right to confront and cross-examine all witnesses. Testimony may be taken
by deposition, including deposition by telephone, or witnesses may testify
by telephone, facsimile, video or other electronic means, upon agreement of
the parties or, absent an agreement, upon request of a party and determination
by the Committee or hearing officer that such use does not substantially prejudice
the rights of any party. Affidavits may be received into evidence upon stipulation
of the parties.
- The Committee's findings of fact, conclusions and recommendations, with
supporting reasons, shall be reported, in writing, to the institution's president
and the faculty member or the faculty member's representative. If the institution's
action was a notice of dismissal and if the Committee concludes that adequate
cause for dismissal has been established, but that a lesser penalty would
be more appropriate, it may so recommend with supporting reasons. The president
shall make a decision and provide written notice of the decision, including
findings of fact and reasons or conclusions based on the hearing record, to
the Committee and the faculty member within twenty calendar days of receiving
the report. The faculty member or Committee may, within ten calendar days
of the decision, submit a written response to the decision, to which the president
may reply.
- The decision of the president is final.
HISTORY: Replaces portions of Policy 605, SBHE Minutes April 25,1995, pg 6554. Amended April 25, 1995; March 1998; February 2001, August 2003, December 2005.