29.1 GENERAL.
The Faculty Dispute Procedures amended by the Faculty Senate and the President of the University were approved as amended by the Board of Regents on April 21, 1993. The Task Force that drafted these Procedures at the request of the Faculty Senate and the University President also prepared two related documents that are on file with the President of the Faculty Senate, the Presiding Officer of the Faculty Judicial Commission, and the General Counsel of the University: 1) a version of the newly adopted Procedures showing, by means of contrasting type, additions to and deletions from the previous version of the Faculty Dispute Procedures; 2) a version of the newly adopted Procedures containing comments of the Task Force explaining the nature and purpose of many of the proposed changes to the previous version of the Faculty Dispute Procedures.

The Faculty Dispute Procedures were further amended by a Task Force appointed by the University President and approved by the Iowa State Board of Regents on May 22, 1997. The Task Force that amended the procedures at the request of the University President also prepared two related documents that are on file with the President of the Faculty Senate, the Presiding Officer of the Faculty Judicial Commission, and the General Counsel of the University: 1) a version of the newly adopted Procedures showing, by means of contrasting type, additions to and deletions from the previous version of the Faculty Dispute Procedures; 2) a version of the newly adopted Procedures containing comments of the Task Force explaining the nature and purpose of many of the proposed changes to the previous version of the Faculty Dispute Procedures.

These Faculty Dispute Procedures shall govern the following cases:

(1) all cases under III-29.5, III-29.6, and III-29.9 in which the Request for an Investigation is dated after the approval of these Faculty Dispute Procedures;

(2) all cases under III-29.7 in which the Notice of Charges is dated after the approval of these Faculty Dispute Procedures;

(3) all cases under III-29.8 in which the Formal Notice by the Academic Officer is dated after the approval of these Faculty Dispute Procedures; and

(4) any other case that is pending at the time of approval of these Faculty Dispute Procedures, where the faculty member or clinical faculty member in such case elects to complete the case under these Faculty Dispute Procedures.

a. Kinds of Disputes. Sections III-29-29.9 describe the institutions, regulations, and procedures for the resolution within the University of certain kinds of problems and disputes involving a member of the faculty or a clinical faculty member. These situations are of the following five kinds:
(1) Denial of Tenure, Promotion, or Reappointment: in which a faculty member other than a clinical faculty member may challenge a decision by the University to deny tenure, promotion, or reappointment to the faculty member;

(2) Grievance: in which a faculty member or a clinical faculty member may challenge the legitimacy of some administrative action or non-action (other than denial of tenure, promotion, or reappointment) that affects the faculty member;

(3) Ethics: in which the University may charge a faculty member or a clinical faculty member with a violation of the University Statement on Professional Ethics and Academic Responsibility; and

(4) Unfitness: in which the University may seek the dismissal of a faculty member or a clinical faculty member during the faculty member's term of appointment on the ground of unfitness.

(5) Clinical Faculty Member Termination or Denial of Promotion or Reappointment: in which a clinical faculty member may challenge a decision by the University to terminate or to deny promotion to the clinical faculty member.

b. Framework of Relevant Provisions. The involvement of the faculty in the resolution of these kinds of problems and disputes comes through the Faculty Judicial Commission. Accordingly, after the definitions, the composition and procedures of the Commission are described first, followed by the general and specific provisions for dealing with the five kinds of situations. The sections of these procedures are as follows:

29.2 Definitions
29.3 The Faculty Judicial Commission
29.4 General Provisions
29.5 Denial of Tenure, Promotion, or Reappointment
29.6 Grievance
29.7 Ethics
29.8 Unfitness
29.9 Clinical Faculty Member Termination or Denial of Promotion or Reappointment

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29.2 DEFINITIONS.
The following definitions are applicable to III-29-29.9:

a. "Academic Officer" means the chief academic officer of The University of Iowa under the President or any person designated to act on behalf of the Academic Officer for the purposes of these regulations.

b. "Clinical Faculty Member" means a clinical faculty member under III-10.9a of the University's Clinical Track Policy, holding a salaried appointment as described in III-10.9c.

c. "Collegiate dean" means the chief academic officer of the college of the faculty member's principal appointment or any person designated to act on behalf of the collegiate dean for the purposes of these regulations.

d. "Ethics Statement" means the University Statement on Professional Ethics and Academic Responsibility. (See III-15-15.6.)

e. "Faculty member" means, unless the context shows differently, the member of the faculty who is challenging the University in a Denial of Tenure, Promotion, or Reappointment case or a Grievance case; or who is being charged by the University in an Ethics case or an Unfitness case. In general, a faculty member is one who holds an academic appointment with the title of instructor, assistant professor, associate professor, or professor; but anyone else, of whatever title, who is defined as a faculty member by the Faculty Senate with the concurrence of the President of the University is a faculty member for the purpose of these regulations. Except as noted under III-29.9, this definition shall include a clinical faculty member as defined under III-10.9a.

f. "Investigating Officer" means a University employee, preferably with faculty experience, whose title shall be "Investigating Officer under the Faculty Dispute Procedures" and whose responsibilities include the investigatory functions and hearing management functions specified in III-29.5; III-29.6; III-29.7; III-29.8; and III-29.9 of these regulations. The Investigating Officer will be nominated by the President and approved by two thirds of the members present at a Faculty Council meeting and a Faculty Senate meeting or by two thirds of members voting in a Special Ballot of the Faculty Senate under its procedures. If at any time these regulations are in effect when the position of Investigating Officer is not filled, the responsibilities of that office shall be performed by a faculty panel.

g. "Party" means either the faculty member or the University in connection with the proceedings under any of the five kinds of disputes covered by these regulations, and it includes the legal counsel or other persons authorized to act and acting on behalf of a party.

h. "President" means the chief executive officer of the University of Iowa. The President shall make whatever decisions these regulations call for the President to make unless the President is absent or incapacitated, in which case a person designated by the President to act on behalf of the President in such circumstances shall make the decisions.

i. "Tenure Rights" means those rights and privileges arising from tenure conferred on the grieving faculty member prior to the inception of the dispute underlying the grievance in which those rights are at issue.

j. "These regulations" means the Faculty Dispute Procedures (III-29-29.9).

k. "University Representative" means the individual designated by the Academic Officer as the person responsible to receive and to give notices and information on behalf of the University under III-29.5, except where that responsibility is otherwise specified in these regulations; once the Academic Officer has designated the University Representative, that designation may be changed at any time by written notification from the Academic Officer to the Presiding Officer.
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29.3 THE FACULTY JUDICIAL COMMISSION.

a. Composition and appointment of Commission members.
(1) The Faculty Judicial Commission shall consist of thirty members: one Presiding Officer, five mediators, and twenty-four regular panelists, three of whom shall be clinical faculty members. The Faculty Senate shall appoint the members of the Commission, and shall designate which five members shall be mediators. Preference in the designation of mediators shall be given to those with experience, training, or interest in training in alternate dispute resolution. The President of the Faculty Senate shall designate one of the members not appointed as a mediator to be the Presiding Officer of the Commission. Any faculty member who is eligible for election to the Faculty Senate is eligible for appointment to the Commission.

(2) The term of appointment shall be for three years beginning on August 1 and ending on July 31. If a panelist, mediator, or Presiding Officer is unable to finish a term, the Faculty Senate shall appoint a replacement for the remainder of the term. The Faculty Senate may appoint additional, special panelists if there is too much work for the regular panelists. No one who has served six consecutive years as a panelist in any combination of regular, interim, or special appointments may be reappointed as a panelist until a year has elapsed, but the term of any panelist will be extended in order that the panelist may finish a case. No one may serve more than two consecutive terms as a mediator, but the term of any mediator will be extended in order that the mediator may finish a case. No one may serve more than two consecutive terms as Presiding Officer.

(3) A member of the Faculty Judicial Commission may be removed from that office by a majority vote of the Faculty Council following a recommendation by the Presiding Officer. The Presiding Officer may be removed from that office by a majority vote of the Faculty Council following a recommendation from the Faculty Senate President.

b. Functions of Presiding Officer, panelists, and mediators.
(1) It shall be the responsibility of the Presiding Officer to:
(a) assign panelists to cases arising under these regulations;

(b) to receive and forward communications as required by these regulations;

(c) maintain a file of all cases that are brought to the Commission;

(d) make periodic reports of the work of the Commission to the Faculty Council; and

(e) to consult with and provide non-binding advice to the Investigating Officer and panelists concerning the meaning of the Faculty Dispute Procedures and procedural questions affecting the handling of a case.

(2) A faculty judicial panel serves as a hearing panel, as required, in the following situations:
(a) in a Denial of Tenure, Promotion, or Reappointment case, under III-29.5;

(b) in a Grievance case, under III-29.6;

(c) in an Ethics case, under III-29.7;

(d) in an Unfitness case, under III-29.8; or

(e) in a clinical faculty member Termination or Denial of Promotion or Reappointment case, under III-29.9.

(3) A mediator serves, as required, either in an Ethics case under III-29.7 or in an Unfitness case under III-29.8.

c. Assignment of panelists to case.
(1) On or about August 1 of each year, the Presiding Officer shall prepare a written list of the panelists for the next twelve months. This list shall be a public document and available to the parties in any case under these regulations. When a case arises requiring the assignment of a panel, the Presiding Officer shall not assign:
(a) any panelist who the Presiding Officer determines has had prior relations with either party that might make it difficult or appear to make it difficult for the panelist to be impartial;

(b) any panelist against whose service either party shows cause to the satisfaction of the Presiding Officer;

(c) any panelist to whose assignment either the University or the faculty member makes a peremptory challenge, and either party may make up to two such objections without being required to show cause;

(d) any panelist whose faculty appointment is without tenure if the case concerns denial of tenure;

(e) any panelist whose rank is below the rank to which promotion is at issue in the case;

(f) any panelist who holds a clinical faculty member appointment in a case brought under III-29.5;

(g) any panelist who will not be able to serve continuously until the panel can make its final report;

(h) any panelist who has served on a panel during the preceding twelve months, unless it is determined that no other panelist is available for service on the new panel. In no case shall a panelist currently serving on a panel be appointed to serve on a second panel unless all other eligible members are also currently serving on a panel.

(2) In making assignments to a panel, after removing the names of panelists ineligible to serve by reason of the considerations specified in III-29.3c(1)(d)-(h), the Presiding Officer shall provide each party with a list of panelists eligible for assignment to the case. The Presiding Officer shall then delete from this list the names of any panelists about whom, in the Presiding Officer's judgment, one of the parties has raised a serious question of cause or a possible lack of impartiality under III-29.3c(1)a or b; and the Presiding Officer shall delete from this list the names of any panelists with respect to whom either party has made a peremptory challenge under III-29.3c(1)c. The Presiding Officer shall then assign three panelists from the remaining list by lot or in any other random manner, except that, in making these assignments:
(a) the Presiding Officer shall not assign more than one panelist from any single college;

(b) the Presiding Officer shall assign at least one panelist holding the rank of Professor to any panel in a case involving denial of tenure or promotion under III-29.5; and

(c) the Presiding Officer shall assign at least one panelist holding a clinical faculty member appointment in a case brought under III-29.9.

(3) After the composition of the panel has been determined, the Presiding Officer shall appoint one of the panelists to chair the panel.
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29.4 GENERAL PROVISIONS.

a. Right to Counsel. In all proceedings governed by the Faculty Dispute Procedures, a faculty member may, at the faculty member's discretion, be represented by legal counsel.

b. Other Rights of the Faculty Member.

(1) Faculty Member Status. The status of a faculty member involved in a case under these regulations shall not be altered detrimentally until the proceedings are completed except insofar as the President may exercise emergency powers under the Regents' Rules or be required by a court order to do so. The status of a faculty member shall include the faculty member's tenure, rank, salary and benefits, collegiate affiliation, and where applicable, departmental affiliation. With respect to other terms and conditions of a faculty member's employment that are or may be at issue in a grievance under these procedures, the faculty member may seek from the appointed Judicial Panel an expedited determination that such conditions shall not be altered until the proceedings are completed, provided that the faculty member demonstrates to the Judicial Panel's satisfaction that altering such conditions would cause the faculty member immediate and serious injury, loss or damage. The faculty member may seek such an expedited determination in a written statement submitted to the Presiding Officer, with a copy to the Academic Officer and the Investigating Officer. The Presiding Officer shall direct the request to the Judicial Panel. The Judicial Panel, in its discretion, may seek further information from the parties and/or assistance from the Investigating Officer. In ruling on the request for an expedited determination the Judicial Panel shall make a prompt decision and shall communicate its decision in writing to the Presiding Officer. The Presiding Officer shall provide a copy of the Judicial Panel's decision to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, and the Investigating Officer.

(2) Extension of Employment. If the result of an investigation pursuant to III-29.5 or III-29.9 is to confirm an original decision by the University to terminate the faculty member's appointment (either because the panel has not found in favor of the faculty member or because the President has made a final decision not to accept the recommendations of the panel based on a finding in favor of the faculty member), the faculty member shall be entitled to one full semester's further employment by the University after the faculty member has been officially informed of the outcome of the investigation. A request for review by the Board of Regents, however, shall not affect this extension of time. This provision for further employment shall apply even if it extends the faculty member's appointment beyond the one year of additional employment to which the faculty member is entitled after having been officially informed by the collegiate dean of the original decision by the University to terminate the faculty member's appointment.

(3) Regents' Review. The University Representative, after receiving notice of a panel's or the President's adverse decision, shall promptly inform the faculty member of the right to request a review by the Board of Regents of the decisions that are made and the actions that are taken under these regulations, and the University Representative shall enclose a copy of these regulations with that notice and shall inform the faculty member of the form of requesting the review and the person or office to whom the request must be made. A faculty member who wishes to request a review of a case by the Board of Regents must make the request within the time period provided under the Regents Policy Manual (which, as of May 18, 1995, provides seven days from the date of receipt of notice of the latter of the President's decision or the Judicial Panel's report unfavorable to the faculty member for such a request).

c. Communications. Any communications that are required by these regulations may be sent by ordinary U.S. Mail, by certified U.S. Mail, or by messenger. A communication to a faculty member as required by these regulations shall be sent to both the faculty member's home and University address as these are listed in official University records unless the faculty member advises either the Presiding Officer or the Investigating Officer of his or her preference, after which time communication to a faculty member should be made in accordance with that preference. If the circumstances require it, a communication should be made also by publication in an appropriate newspaper.

d. Computation of Time Periods. In computing a period of time that is prescribed or allowed by these regulations, the day from which the designated period of time begins shall not be included. The last day of the period so computed shall be included unless general University offices are not open on that day in which case the period goes until the end of the next day on which they are open. A communication to or from a faculty member by mail is considered complete upon mailing. "Business days" are those days on which general University offices are open.

e. Costs. A faculty member who files a case under these regulations must pay the cost of his or her own counsel, the expenses of any witnesses called by the faculty member, and reasonable charges for copies of documents that are made for the faculty member. Except as otherwise noted in these procedures, other costs of the investigation will be borne by the University. The panel also may recommend that some or all of the costs borne by one party, except for the costs of legal counsel, should be reimbursed by the other.

f. Informal Discussions. In any informal discussion that is required or permitted under these regulations, all of the parties are expected to make a genuine effort to resolve the matter before them. In any such informal discussion, the faculty member may be accompanied by another faculty member of his or her choice, and either party may request the services of the Office of the University Ombudsperson. Anyone who attends an informal discussion shall treat it with confidentiality.

g. Mediation. In any mediation that is required or permitted under these regulations, it is the task of the mediator to assist the parties in reaching a mutually acceptable solution to the problem: 1) by presenting a view of the situation of one who is not otherwise involved in it; 2) by attempting to create an atmosphere in which successful negotiation may take place; and 3) by suggesting possible solutions to the problem. It is not the function of the mediator to decide any substantive matter. The mediator should attempt to collect all the relevant facts of the case by holding informal discussions with the parties and, if it is necessary, by receiving and considering written materials. The mediator shall determine what meetings are necessary and who should attend the meetings. The mediator shall treat all matters related to a case with confidentiality.

h. Reports by a Faculty Judicial Panel. The findings and recommendations of a panel shall take the form of a written report to be prepared as soon as possible following the relevant proceedings. The report shall be written in a manner that preserves the confidentiality of documents or testimony concerning confidential matters taken in closed hearing (see III-29.5e(1); III-29.7g(2); III-29.8f(2); and III-29.9e(1)) to the maximum extent possible consistent with a clear and full explanation of the panel's findings and recommendations. The Presiding Officer may release the report to the public only if the faculty member or the President has already made public the essentials of the report or the report follows an open hearing on the case. Otherwise, the report shall be treated with confidentiality by everyone who receives or obtains a copy of it except by the faculty member as the faculty member may choose.

i. Reports by the Academic Officer. On or before June 1 and December 1 of each year, the Academic Officer shall report to the Presiding Officer the results of the steps taken during the preceding six months to implement whatever final decisions were made under these regulations or, if an implementation is not complete, the current status of the matter.

j. Amendments of These Regulations. Proposals to amend these regulations may be initiated by the Faculty Senate, by the President, or by the Board of Regents. The Board agrees that it shall make no changes in these regulations without first consulting the Faculty Senate, the Faculty Council, and the President.
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29.5 DENIAL OF TENURE, PROMOTION, OR REAPPOINTMENT.
(Amended 2/01)

a. Introduction.
(1) Scope. The procedures described in this section constitute the exclusive remedy within the University for a faculty member, other than a clinical faculty member, who wishes to challenge a decision by the University to deny tenure, promotion, or reappointment to the faculty member. A challenge to the University's termination or denial of promotion or reappointment of a clinical faculty member may not be brought under this section III-29.5, but may be brought under III-29.9. The University's policies regarding tenure are set forth in III-10 and the sections following it. The University's policies regarding job security for clinical faculty members are set forth in III-10.9. (Nothing in these regulations restricts the right of the University to make non-tenured appointments for fixed terms with no implication of probationary status. Such appointments, if made, may be called "visiting appointments," or they may be given any other appropriate title.)

(2) Grounds for a Challenge to a Decision to Deny Tenure, Promotion, or Reappointment. A challenge by a faculty member to a decision by the University to deny tenure, promotion, or reappointment to the faculty member may be made only on one or more of the grounds which are identified and defined as follows:

(a) Violation of a University Obligation: that the decision was made in violation of a written promise of tenure, promotion, or reappointment to the faculty member by an authorized administrator of the University;

(b) Clearly Adequate Record of Achievement: that the decision is unjustified in view of the faculty member's clearly adequate record of achievement under governing standards of the department or other academic unit in question;

(c) Improper Reason: That the decision was based in part or in whole on the faculty member's race, creed, color, national origin, age, sex, disability, sexual orientation, gender identity, or any other classification that deprives a person of consideration as an individual, including but not limited to associational preference; or that the decision was based in part or in whole on a reason that violates the faculty member's academic freedom;

(d) Improper Procedure: that the decision was made without reasonable consultation with the faculty colleagues of the faculty member as required by the University, college, or department, or in a way that violates some other established University, college, or department procedures; or

(e) Unfair Impediment: that the decision was the result of a failure of the faculty member to meet the requirements for tenure, promotion, or reappointment due to an unfair impediment for which the University or one of its officers is responsible.

(3) Stages in These Procedures. The stages in the procedures in a faculty member's challenge to a decision by the University to deny tenure, promotion, or reappointment to the faculty member are:
(a) Informal Discussions

(b) Request for a Written Statement of Reasons

(c) Investigation, Hearing, and Faculty Judicial Panel Recommendation

(d) President's Decision

b. Informal Discussions. A faculty member who wishes to challenge a decision by the University to deny tenure, promotion, or reappointment to the faculty member may begin the challenge by attempting to settle the matter informally through discussions with the departmental executive officer, the collegiate dean, and the Academic Officer. In any such informal discussion, the faculty member may be accompanied by legal counsel and/or another faculty member of his or her choice. As a part of the informal discussion stage, either party may request the services of the Office of the University Ombudsperson.

c. Request for a Written Statement of Reasons. Upon learning of the decision of the University to deny tenure, promotion, or reappointment to the faculty member, the collegiate dean shall promptly, in writing, officially inform the faculty member of the decision and of the faculty member's right to challenge that decision under these regulations and shall include a copy of these regulations as part of that official information.

A faculty member who wishes to pursue a challenge to a decision by the University to deny tenure, promotion, or reappointment to the faculty member beyond the stage of informal discussions, whether or not such informal discussions have taken place or are continuing, must, within thirty business days of having been informed officially of the decision by the collegiate dean, request of the Academic Officer a written statement of the reasons for the decision. The Academic Officer shall inform the faculty member in writing and in reasonable detail of the reason or reasons for the decision by the University, and this written statement of reasons shall be provided, ordinarily, within twenty business days of receiving the faculty member's request.

d. The Nature of the Investigation.

(1) Request for an Investigation. If the written statement of reasons does not settle the matter to the faculty member's satisfaction and the faculty member wishes to pursue the challenge, the faculty member may request an investigation. This request must be made within twenty business days after the faculty member receives the written statement of reasons. The request shall be directed to the Presiding Officer of the Faculty Judicial Commission, who shall forward copies of the request to the faculty member's departmental executive officer, the collegiate dean, and the Academic Officer. The faculty member must attach to the request a copy of the collegiate dean's official notice, a copy of the faculty member's request for a statement of reasons, and a copy of the Academic Officer's statement of reasons. The faculty member also must specify the ground or grounds for the challenge with as much specificity as possible on the basis of evidence or information available to the faculty member when the request is submitted.

(2) Appointment of the Panel. After the Presiding Officer receives the Request for an Investigation, the Presiding Officer shall appoint a faculty judicial panel to review and decide the case. The Presiding Officer also shall promptly notify the Investigating Officer to begin the investigation into the merits of the case.

(3) Stay of Proceedings. The Presiding Officer shall have the power to suspend the deadlines specified under this Section or to stay any proceeding under this Section when requested to do so in writing by either or both parties or the Ombudsperson and when, in the judgment of the Presiding Officer, the resulting delay would significantly advance the possibility of achieving an agreed-upon settlement by the parties.

(4) Submission of Preliminary Statements. The Investigating Officer shall begin the investigation by requesting each party to provide, within ten business days of the request, a Preliminary Statement which shall include the following:

(a) a statement of the issues of fact or judgment, segregated according to the applicable Ground for Challenge, that identify any point or points of disagreement between the University and the faculty member;

(b) a list of the relevant non-testimonial evidence which each party seeks from the opposing party or from others not party to the dispute;

(c) copies of any relevant non-testimonial evidence in the party's possession, custody, or control; and

(d) the identity and location of witnesses each party plans to call.

(5) Obtaining the Evidence.
(a) Based on the information received under Paragraph (4) above, the Investigating Officer shall obtain the relevant non-testimonial evidence requested by the parties in their Preliminary Statements. The Investigating Officer is empowered to request and to receive the cooperation of the Academic Officer, the collegiate dean, the departmental executive officer, the grieving faculty member, other faculty members, and other University employees and to request and to receive from such persons all non-testimonial evidence of possible relevance to the case, including personnel records concerning teaching, scholarship, or professional service of other faculty members. Faculty members, staff, students, and officials of the University have a duty to deliver promptly any such documents, including personnel files that are requested by the Investigating Officer and otherwise to cooperate with the investigation.

(b) If the parties dispute the relevance of any document or part of a document, then the Investigating Officer shall discuss with the parties the possible resolution of the dispute and try to reach an agreement. If no agreement can be reached, then the document or part thereof in question shall be provided to the panel pursuant to the procedures under paragraph (11) below, together with each party's brief statement regarding its relevance.

(6) Distribution of Materials to the Parties. The Investigating Officer shall provide each party with a copy of the opposing party's Preliminary Statement submitted under paragraph (4) above. The Investigating Officer also shall provide the parties with a copy of all the relevant non-testimonial evidence that the Investigating Officer has obtained under paragraph (5) above.

(7) Confidentiality. During the investigation, all non-testimonial evidence obtained for a case shall be presumed to be confidential with respect to all persons who do not need to have access to the evidence in performing their duties or exercising their rights under these regulations. Prior to the beginning of a hearing or the termination of the panel's responsibilities, whichever occurs first, each party shall be afforded an opportunity to designate evidence or portions of evidence that should continue to be regarded as confidential, and this evidence shall be so marked. Neither party may disseminate or allow to be disseminated any evidence presumed or marked as confidential under this paragraph while a case is pending or after the case has been completed. Documents that were written with an explicit or implied expectation that they were confidential or would not be revealed to the faculty member shall be made available to the parties only after the name of the author or authors of the document is excised and only, to the maximum extent possible consistent with providing the substance of the contents of the document to the parties, after identifying aspects or portions of the documents have been excised.

(8) Final Statements and Rebuttal.

(a) The parties shall submit to the Investigating Officer and to the opposing party and counsel their respective Final Statements in writing according to the schedule set forth below. In their Final Statements, the parties shall set forth their respective positions on the opposing party's Preliminary Statement and on the evidence provided by the Investigating Officer.

(b) The faculty member shall submit his or her Final Statement first, within fifteen business days following his or her receipt of the non-testimonial evidence. Within fifteen business days following the University's receipt of the faculty member's Final Statement, the University shall submit its Final Statement, which may respond to the arguments raised in the faculty member's Final Statement.

(c) The faculty member may submit a written Rebuttal to the University's Final Statement, provided that the faculty member does so within ten business days following the faculty member's receipt of the University's Final Statement. If submitted, the Rebuttal shall be limited to the arguments raised in the University's Final Statement.

(d) The parties may not submit any additional pre-existing evidence with their Final Statements or Rebuttal, although they may attach exhibits such as charts, tables, graphs or summaries created for purposes of these proceedings. No witness statements or affidavits may be submitted with these Final Statements or Rebuttal.

(9) Assistance to the Parties. Throughout the investigation, the Investigating Officer may meet with the parties together or separately and may assist them in complying with the requirements of paragraph (5) above, as seems appropriate to the Investigating Officer. The Investigating Officer may extend deadlines for submissions by the parties (under paragraphs (4) and (8) above) when doing so, in the Investigating Officer's judgment, will expedite the case and/or improve the quality of the material presented to the panel.

(10) Report to the Panel. The Investigating Officer shall report to the panel in writing, with copies to the parties and counsel, any failure, delay or other obstruction by a party in any part of these procedures and shall indicate to the panel whether the failure, delay or obstruction appears to be justifiable. Taking into account the Investigating Officer's report concerning the failure, delay or obstruction, the panel may draw negative inferences and take appropriate action on the basis of a failure of a party to provide relevant documents or other materials or information. Excessive delays or other obstruction to providing documents or other materials or information may be treated by the panel as a failure to provide the document. The parties shall not submit any response to the report to the Panel.

(11) Distribution of Materials to the Panel. The Investigating Officer shall provide each member of the Judicial Panel with:

(a) a copy of the Preliminary Statements submitted under paragraph (4) above;

(b) a copy of the Final Statements and Rebuttal, if any, submitted under paragraph (8) above;

(c) a copy of any item of the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (5) above which either party has referenced in its Final Statement or Rebuttal submitted under paragraph (8) above; and

(d) access to a complete copy of all the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (5) above.

(12) Conference Regarding a Hearing. After Final Statements and the Rebuttal, if any, have been submitted, the parties and their attorneys shall meet with the Investigating Officer to discuss:
(a) the desirability of a hearing before the judicial panel at which oral testimony will be taken from witnesses on one or more of the grounds, and the factual issues to be addressed by such testimony; and

(b) the desirability of oral argument by counsel or the parties to the judicial panel regarding the issues presented under one or more of the grounds and the time constraints reasonably to be imposed on such argument.

The judicial panel shall hold a hearing and/or entertain oral argument if the panel or either party desires it. The Investigating Officer, shall impose any limitations on the time for argument to the panel. The Investigating Officer shall advise the parties of the Judicial Panel's limitations on the factual issues to be considered in the hearing.

(13) Communication between the Panel and the Parties. A copy of all communication regarding the matter in dispute by the Judicial Panel or any of its members to either party shall be given to the opposing party, all counsel and the Investigating Officer. All communication regarding the matter in dispute by either party or counsel, to the Judicial Panel or to any of its members, shall be directed through the Investigating Officer, except at any hearing held in the case. This rule shall apply even if such communication is responsive to a prior communication from the Judicial Panel or any of its members.

e. The Nature of the Hearing.
(1) Open Hearing. The hearing shall be open unless:
(a) both parties request that it be closed, in which case it shall be closed; or

(b) it is necessary to close the hearing temporarily to preserve the confidentiality of documents or other matters or to protect witnesses who fear reprisals.

The decision to close the hearing for any of the reasons specified in this paragraph shall be made by the Investigating Officer in consultation with the panel. A closed hearing shall be closed to all except the panel, the parties and their counsel, the Investigating Officer, the testifying witness and the recorder of the proceedings.

(2) Recording. The hearing shall be recorded by videotape. The Investigating Officer shall ensure that the recording process maintains the confidentiality of the evidence, and that the resulting videotape is maintained in a secure manner, protecting its confidentiality. The record of the hearing may, at the discretion of the panel, exclude the discussion of procedural matters. Either party or the panel may request that the proceedings also be recorded by a stenographic reporter. The party requesting such additional recording shall bear its cost; if the panel requests it, then the Investigating Officer shall bear its cost. If either party requests a transcript, that party shall bear its cost. If the panel requests a transcript, the office of the Investigating Officer shall bear its cost.

(3) Confidentiality. In any hearing or portion of hearing that is closed, all testimony shall be presumed to be confidential with respect to all persons who do not need to have access to that information in performing their duties.

(4) Sequestration of Witnesses. At the request of either party, witnesses shall be sequestered from the hearing prior to their testimony, unless the panel, in the interests of justice, objects to such sequestration.

(5) Rights of the Parties. Subject to the Investigating Officer's power to control the hearing, described in paragraph (6) below, the faculty member may be accompanied by another faculty member of his or her choice, subject to paragraph (4) above, regarding sequestration of witnesses. In addition, each party shall have the following rights:

(a) to decide which witnesses to call to testify on behalf of that party;

(b) to present evidence through the testimony of a party's own witnesses;

(c) to present any other relevant evidence;

(d) to cross-examine any witness called by the other party;

(e) to make an opening statement before and a closing statement after the presentation of evidence;

(f) to submit a written argument at the conclusion of the presentation of evidence; and

(g) to be consulted and to present oral and/or written argument for the purpose of influencing any decision made by the Investigating Officer in the exercise of the Investigating Officer's power to control the hearing.

(6) Investigating Officer. The Investigating Officer shall have the power to control the hearing, in consultation with the panel, including but not limited to the power:
(a) to ask questions of any witness;

(b) to limit the presentation of evidence on grounds of irrelevancy or redundancy when necessary to avoid an excessively long hearing, but the investigating officer shall not exclude evidence on the basis of formal rules of evidence that would govern a judicial proceeding;

(c) to limit the length of opening and closing statements;

(d) to limit the length of any written arguments submitted;

(e) to limit the time after the conclusion of the presentation of evidence for submission of written arguments to the panel;

(f) to set the date, time, and place for conducting the hearing, including the beginning, ending, adjournments, and any reopenings, in the interest of achieving an expeditious proceeding and accommodating the convenience of the parties; and

(g) to take such action as seems appropriate to preserve the confidentiality of marked documents or other confidential matters to the maximum extent possible consistent with a full opportunity of each party to present and hear relevant evidence.

(7) The Panel. The panel shall have the power to ask questions of any witness.

f. Burdens of Proof and Standards of Judgment. The Judicial Panel shall make findings of fact and shall draw conclusions based on those findings, consistent with the burdens of proof and standards of judgment applicable to each Ground for Challenge, as set forth below.
(1) Violation of a University Obligation.
(a) In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by clear and convincing evidence, that, on the basis of a written promise to the faculty member by departmental executive officer, collegiate dean, or other authorized administrator of the University, the faculty member was justified in believing that tenure, promotion, or reappointment would be granted on the basis of the faculty member's acknowledged accomplishments and that the faculty member relied detrimentally on the promise. In order to rely on a written promise the faculty member must either present in evidence the written document or documents upon which the claim of a violation of a University obligation is based or else justify the failure to do so. If the faculty member shows only, or the panel otherwise finds, that the promise was conditional on adequate performance or some other requirement whose satisfaction is independently at issue, the panel shall not find in favor of the faculty member on this ground.

(b) If the panel finds in favor of the faculty member on this ground, it shall recommend that the faculty member be granted tenure, promotion, or reappointment as appropriate.

(2) Clearly Adequate Record of Achievement.
(a) In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by clear and convincing evidence, that the faculty member's record of achievement justifies tenure, promotion, or reappointment as the case may be. Thus, the panel shall sustain the challenged decision unless the panel is of a firm and definite conviction based on the faculty member's record that denying the faculty member such tenure, promotion, or reappointment was unjustified.

(b) The panel shall judge the merits of a claim of a Clearly Adequate Record of Achievement in the case of a tenure, promotion, or reappointment decision in accordance with the provisions of III-10.5b. In the absence of written standards, the panel shall deem the standards to be those that prevailed in comparable decisions concerning other faculty members. The panel may also consider comparable decisions concerning other faculty members in interpreting and applying written standards.

(c) The panel shall give great weight to the assessment of any person or persons knowledgeable in the faculty's member's teaching area, field of research or comparable activity, or area of professional service, to the extent such person's knowledge is relevant to evaluating the judgments underlying the decision being reviewed.

(d) In arriving at its finding on this ground, the panel shall consider the faculty member's record as a whole, but no reasons other than those cited in the University's Written Statement of Reasons to the faculty member shall be considered in dispute, all other matters being presumed to have been resolved conclusively in favor of the faculty member.

(e) If the panel finds in favor of the faculty member on this ground, it shall recommend that the faculty member be granted tenure, promotion, or reappointment as appropriate.

(3) Improper Reason.
(a) In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by a preponderance of the evidence, that the decision to deny tenure, promotion, or reappointment as the case may be to the faculty member was substantially affected by an improper reason as defined in III-29.5a(2)(c).

(b) If the panel finds in favor of the faculty member on this ground, it shall recommend that a reconsideration of the original decision to deny the faculty member tenure, promotion, or reappointment be undertaken, starting at the lowest level at which an evaluation or recommendation or written report could have been affected by consideration of an improper reason; that the reconsideration be based upon the faculty member's record as updated to the time of the reconsideration; and that an extension of the faculty member's probationary appointment be granted as necessary to make such reconsideration possible.

(4) Improper Procedure.
(a) In order to gain a favorable recommendation from the panel on this ground, the faculty member initially must show, by a preponderance of the evidence, that in the actions leading to the decision by the University (to deny tenure, promotion, or reappointment as the case may be to the faculty member), there occurred a failure to engage in reasonable faculty consultation or a significant violation of an established University procedure. The panel must find in favor of a faculty member who meets this initial burden, unless the University shows, by a preponderance of the evidence, that the failure to engage in reasonable faculty consultation or the significant procedural violation could not have affected the decision.

(b) If the panel finds in favor of the faculty member on this ground, it shall recommend that a reconsideration of the original decision to deny the faculty member tenure, promotion, or reappointment be undertaken, starting at the lowest level at which an evaluation or recommendation or written report could have been affected by the use of improper procedures; that the reconsideration be based upon the faculty member's record as updated to the time of the reconsideration; and that an extension of the faculty member's probationary appointment be granted as necessary to make possible such reconsideration. Such an extension of time, however, shall not subject the faculty member on reconsideration to heightened standards regarding quantity of scholarship.

(5) Unfair Impediment.
(a) In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by a preponderance of the evidence, that an unfair impediment, for which the University or one of its officers was responsible, substantially affected the faculty member's failure to meet established standards.

(b) If the panel finds in favor of the faculty member on this ground, it shall recommend that a new consideration whether to grant the faculty member tenure, promotion, or reappointment be undertaken, starting at the beginning of the evaluation process on the basis of the record then achieved by the faculty member; and that an extension of the faculty member's probationary appointment be granted as necessary to remove the effect of the impediment and to make possible such reconsideration.

g. Report of the Panel.
(1) The panel shall make its recommendations in a written report which shall be prepared and sent to the Presiding Officer as soon as possible after the conclusion of the investigation and hearing. If the panel has found in favor of the faculty member on any ground, it may make, in addition to its major recommendation concerning the faculty member's tenure, promotion, or reappointment, recommendations for other actions, except for the payment of counsel fees, that it judges to be required by the equities of the case.

(2) The report shall contain findings of fact and conclusions drawn from those findings as well as the panel's recommendation, if any. The report shall include findings of fact and conclusions drawn from those findings that resolve each and every ground raised by the faculty member, even if the conclusion reached on one ground is sufficient to support the Panel's recommendation. The report shall specifically include the following:

(a) an express statement of each ground raised by the faculty member, including the identity and definition of each ground specified in III-29.5a(2);

(b) an express statement of the burden of proof governing each ground raised by the faculty member as specified in III-29.5f;

(c) an opinion explaining the reasons for the panel's conclusions and recommendations, if any, based on the findings of fact and the burden of proof and standard of judgment applicable to each ground raised by the faculty member;

(d) in a case based in whole or part on the Clearly Adequate Record of Achievement ground, a description of any assessment by knowledgeable persons contained in the record and an explanation of the weight given to any such assessment by the panel.

(3) The report shall be written in a manner that satisfies the requirement of protecting confidentiality to the maximum extent possible as provided in III-29.4 and III-29.5d(5). In preparing its report, the panel in its discretion may seek the assistance of the Investigating Officer.

(4) If the panel has not found in favor of the faculty member on any ground, the Presiding Officer shall send copies of the report only to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, and the Investigating Officer. The case is then closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review.

(5) If the panel has found in favor of the faculty member on any ground, the Presiding Officer shall send copies of the report to the persons named in paragraph (4) above, and shall also send a copy of the report to the President.

h. The President's Decision. If the panel has found in favor of the faculty member on any ground, the President of the University shall decide whether or not the University will accept the recommendations of the panel. The President may seek advice of counsel concerning the decision, but the Office of General Counsel shall not provide that advice if it had previously advised the University Representative concerning the matter.
(1) Basis for President's Decision. The President's decision shall be based on all documents, testimony, and other matters presented to the panel. The President shall not hold a hearing, but may meet with the panel. Furthermore, either party may submit a brief to the President within ten business days of receiving notice that the Presiding Officer has transmitted the panel's report to the President. In making the decision, the President shall give great weight to the findings and recommendations of the panel. Like the panel, the President shall be bound by the burdens of proof and standards of judgment stated in paragraph f above. It shall not be considered an acceptance by the President of the panel's recommendations for the President to order a reconsideration of the original decision to deny the faculty member tenure, promotion, or reappointment as the case may be unless the panel has specifically recommended that action.

(2) President Accepts All Recommendations in Favor of Faculty Member. If the President accepts all of the panel's findings and recommendations in favor of the faculty member, the President shall direct that the panel's recommendations be implemented. The President shall so inform the Presiding Officer in writing, and shall send a copy thereof to the panel members. The Presiding Officer shall send copies of the President's final decision to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, each of the members of the panel, and the Investigating Officer. The case will then be closed.

(3) President Does Not Accept the Panel's Recommendation. If the President does not accept one or more of the recommendations of the panel, the President shall inform the panel members in writing of the reasons for not accepting the panel's recommendation and shall send a copy thereof to the faculty member, the University Representative, the Presiding Officer and the Investigating Officer. Within five days of receiving the President's decision, either party may submit a brief to the Investigating Officer for the panel's consideration. The Investigating Officer shall send copies of any brief so submitted to the opposing party, each member of the judicial panel and the Presiding Officer. The panel then shall reconsider its recommendations and shall report the result of its reconsideration to the President in a supplementary written report. The panel shall send copies of its report to the parties, the Presiding Officer and the Investigating Officer. The panel shall respond within ten business days of the date on which the panel's chair receives the President's letter or the parties' briefs, whichever is later. Within five days of receiving the panel's report, either party may submit a brief to the President, with copies to the opposing party, the Presiding Officer and the Investigating Officer. The President then shall make a final decision on the matter. In making this final decision, the President shall give great weight to the views of the panel.

(a) After Panel Reconsideration, President Decides Against Faculty Member. If, after panel reconsideration, the President decides against the faculty member on all grounds, the President shall inform the panel members in writing of the final decision and of any additional reasons supporting the decision and shall send a copy thereof to the Presiding Officer. The Presiding Officer shall send copies of the President's final decision and reasons to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, each of the members of the panel, and the Investigating Officer. The case will then be closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review.

(b) After Panel Reconsideration, President Accepts At Least One, But Not All, Recommendations in Favor of Faculty Member. If, after panel reconsideration, the President accepts at least one, but not all, of the panel's recommendations in favor of the faculty member, the President shall direct that those recommendations that the President accepts be implemented. The President shall inform the panel members in writing of those recommendations that the President accepts, and of those that the President does not accept, and of any additional reasons supporting the decision. The President shall send a copy of the decision to the Presiding Officer. The Presiding Officer shall send copies of the President's final decision to the faculty member, the departmental executive officer, the collegiate dean, the Academic Officer, the University Representative, and the Investigating Officer. The case will then be closed, subject only to a decision by the Board of Regents to grant the faculty member a request for review with regard to those recommendations not accepted by the President.
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