29.6 GRIEVANCE.

a. Introduction.
(1) Scope. The procedures described in this section constitute the exclusive remedy within the University for a faculty member who wishes to challenge the legitimacy of some University administrative action or non-action that affects the faculty member, except for a complaint about:
(a) a decision to deny the faculty member tenure, promotion, or reappointment (which falls under III-29.5), or a decision to terminate a clinical faculty member, or to deny promotion or reappointment to a clinical faculty member (which falls under III-29.9);

(b) any action insofar as it was taken under the Regents Rules;

(c) any action or non-action insofar as it is subject to the Iowa Tort Claims Act; or

(d) any action or non-action on any ground other than one or more of the grounds stated in paragraph (2) below.

(2) Grounds for a Challenge to the Legitimacy of some Administrative Action or Non-Action. A challenge by a faculty member to the legitimacy of some University administrative action or non-action that affects the faculty member may be made through these procedures only on one or more of the following grounds:
(a) Violation of a University Obligation: that the action or non-action is in violation of a written promise to the faculty member by an authorized administrator of the University,

(b) Unfair Impediment: that the action or non-action significantly impairs the ability of the faculty member to do what is expected of a faculty member, and that the action or non-action is not related to a reasonable institutional need or to the faculty member's performance as a faculty member,

(c) Improper Reason: that the action or non-action is 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.

(d) Violation of Academic Freedom or Tenure Rights: that the action or non-action is in violation of the faculty member's academic freedom or tenure rights.

(3) Stages in these Procedures. The stages in the procedures in a faculty member's challenge to the legitimacy of some administrative action or non-action that affects the faculty member are:
(a) Informal Discussions

(b) Exchange of Letters and Further Discussion

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

(d) President's Decision

b. Informal Discussions. A faculty member who wishes to challenge the legitimacy of some administrative action or non-action is expected to make every reasonable effort to settle the matter through informal discussions with the departmental executive officer, the collegiate dean, the Academic Officer, or anyone else connected with the matter. 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. Exchange of Letters and Further Discussion. If the matter is not settled to the faculty member's satisfaction by informal discussions, the faculty member may proceed only by submitting to the administrator who is chiefly responsible for the action or non-action about which the faculty member is complaining a written request for a written statement of the reasons for the action or non-action. In the request, the faculty member must state in some detail the nature of the complaint and the remedy that is sought. Within twenty business days of receiving this request, the administrator shall inform the faculty member in writing and in reasonable detail of the reason or reasons for the action or non-action. If this exchange of letters does not settle the matter to the faculty member's satisfaction, a meeting between the faculty member and the administrator shall take place in a further attempt to settle the matter. At this meeting, the faculty member may be accompanied by another faculty member of his or her choice.

d. The Nature of the Investigation.

(1) Request for an Investigation. If the exchange of letters and further discussion do 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 by a faculty judicial panel. 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,, the Academic Officer, and the administrator with whom the exchange of letters took place. In the request, the faculty member 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 and describe the remedy that is sought. The request for an investigation must be sent within twelve months of the faculty member's receipt of the administrator's reasons for action or non-action.

(2) Claim Within Scope of Procedures. Upon receiving the request for an investigation, the Presiding Officer shall review it to confirm that it falls within the scope of this section. Notwithstanding the preceding sentence, the judicial panel shall have sole authority to determine whether the faculty member's request for investigation states a frivolous claim or falls outside the Grounds for Challenge, as provided in paragraph (3) below.

(a) If the Presiding Officer determines that the request does fall within the scope of this Section, then the Presiding Officer shall appoint a faculty judicial panel to review and decide the case.

(b) If the request does not fall within the scope of this section, then the Presiding Officer shall notify the faculty member and the Academic Officer, and the President of the University shall decide whether or not the claim falls within the scope of this Section. The Presiding Officer shall provide the President with a copy of the faculty member's request for an investigation and the Presiding Officer's decision that the request does not fall within the scope of this Section. In making the final determination, the President may, at his or her discretion, request oral or written statements from the parties. The President shall notify the Presiding Officer of his or her decision. If the President determines that the request for investigation falls within the scope of this Section, then the Presiding Officer shall appoint a faculty judicial panel to review and decide the case. If the President determines that the request for investigation does not fall within the scope of this Section, then the Presiding Officer shall notify the faculty member and the Academic Officer. In any case, the Presiding Officer shall forward copies of the President's decision to the faculty member and the Academic Officer.

(3) Claim Within Grounds. Once a panel has been appointed, the Presiding Officer shall direct the panel to review the request for investigation and to decide, as soon as possible, whether, regardless of its validity, it states a frivolous claim or falls outside the Grounds for Challenge stated under paragraph (a)(2). To make this determination, the panel may, in its discretion, request oral or written statements from the parties. If the panel decides that the request for investigation states a frivolous claim or falls outside the Grounds for Challenge, the panel shall end its investigation and make its report. If the panel decides that the request for investigation does not state a frivolous claim and does fall within the Grounds of these procedures, it shall notify the Presiding Officer, who shall direct the Investigating Officer to begin the investigation.

(4) 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.

(5) 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.

(6) Obtaining the Evidence.
(a) Based on the information received under paragraph (5) 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 III-29.6d(12), together with each party's brief statement regarding its relevance.

(7) 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 (5) 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 (6) above.

(8) 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.

(9) 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. When addressing the need for a hearing, the parties may characterize the testimony they anticipate would be presented at such a hearing. Such characterizations in the parties' Final Statements and Rebuttal, however, are argument on the issue of the need for a hearing, and the panel shall not consider them as evidence on the merits of the case.

(10) 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 (6) above, as seems appropriate to the Investigating Officer. The Investigating Officer may extend deadlines for submissions by the parties 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.

(11) 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.

(12) 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 (5) above;

(b) a copy of the Final Statements and Rebuttal, if any, submitted under paragraph (9) above;

(d) a copy of any item of the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (6) above which either party has referenced in its Final Statement or Rebuttal submitted under paragraph (9) above; and

(d) access to a complete copy of all the relevant non-testimonial evidence the Investigating Officer has obtained under paragraph (6) above.

(13) 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.

(14) 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.

(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. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, that on the basis of a written promise to the faculty member by an authorized administrator of the University, the faculty member was justified in believing that the administrative action or non-action would not occur and that the faculty member relied detrimentally on that promise. The faculty member must either present in evidence the document or documents upon which the claim of a violation of a University obligation is based or else justify the failure to do so.

(2) Unfair Impediment. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, both 1) that the action or non-action significantly impairs the ability of the faculty member to do what is ordinarily expected of a faculty member, and 2) that the action or non-action is not significantly related either to any reasonable institutional need or to the faculty member's performance as a faculty member.

(3) Improper Reason. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, both 1) that the occurrence of the administrative action or non-action was substantially affected by an improper reason, and 2) that the action or non-action adversely affects the faculty member. If the faculty member shows only that there exists or existed a condition that might have been involved improperly in the action or non-action, the panel shall not find in favor of the faculty member on this ground.

(4) Violation of Academic Freedom or Tenure Rights. In order to gain a favorable recommendation from the panel on this ground, the faculty member must show, by the preponderance of the evidence, that some administrative action or non-action did violate the faculty member's academic freedom or tenure rights.

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 any recommendations that it judges to be required by the equities of the case, except that it may not recommend the paying of counsel fees.

(2) The report shall contain findings of fact and conclusions drawn from those findings as well as the panel's recommendations, 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-29.6a(2);

(b) an express statement of the burden of proof governing each ground raised by the faculty member as specified in III 29.6f; and

(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.

(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-29.4h and III-29.6d(8). In preparing its report, the panel may, in its discretion, 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 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.

(2) President Accepts All Recommendations in Favor of Faculty Member. If the President accepts all of the panel's 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 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.
[top]

29.7 ETHICS.

a. Scope. The procedures described in this section constitute the exclusive remedy within the University for resolution of any complaint that a faculty member violated the Professional Ethics and Academic Responsibility Policy stated in III-15.
(1) If any of the following University policies are determined, pursuant to their own procedures, referenced below, to have been violated, then the Academic Officer on behalf of the University shall prepare a Notice of Charges as described under paragraph c below, and shall forward it to the Presiding Officer, and such case shall proceed as described under paragraph c below:
(a) University Policy on Sexual Harassment and Consensual Relationships II-4 (pursuant to II-4.3c); and University Sexual Harassment Complaint Procedures II-5 (a finding of reasonable basis under II-5.10b(5)(a)(1));

(b) University Policy on Violence II-10 (a finding of reasonable basis under II-10.7d);

(c) The University of Iowa Faculty and Staff Policy on a Drug Free Environment II-12 (a finding of violation under II-12.3b); and

(d) Any other University Policy governing faculty members' ethical misconduct, enacted after these procedures are adopted.

(2) If, pursuant to the University Policy on Ethics in Research, set forth in II-27.6, a determination is made that the investigation findings warrant further action, the following procedures shall apply:
(a) Executive Vice President and Provost/Academic Officer's Proposed Sanction. Any internal University sanction to be imposed shall be imposed initially by the Executive Vice President and Provost/Academic Officer. In doing so, the Executive Vice President and Provost/Academic Officer shall consider the totality of the record made in the initial inquiry conducted by the Research Integrity Officer, together with the standing committee's written report of the findings from its own investigation. The Executive Vice President and Provost/Academic Officer shall accept the findings of the standing committee and shall determine an appropriate sanction to be imposed. The Executive Vice President and Provost/Academic Officer shall notify the faculty member of any sanction so determined.

(b) Faculty Member's Option. The faculty member may accept or reject the proposal of the Executive Vice President and Provost/Academic Officer. If the faculty member accepts the proposal of the Executive Vice President and Provost/Academic Officer, it shall be implemented and the case shall be closed. If the faculty member rejects the proposal of the Executive Vice President and Provost/Academic Officer, then the case shall proceed to a faculty panel solely for its recommendation for any appropriate sanction to be imposed. The faculty panel shall be appointed pursuant to the procedures specified in paragraph f below.

(c) Faculty Panel's Review. The faculty panel shall not hold an evidentiary hearing, and it shall not reconsider the standing committee's finding that further personnel action is warranted. Rather, the faculty panel shall be bound by the findings of the standing committee. The faculty panel shall consider the totality of the record made in the investigation conducted by the Research Integrity Officer, together with the standing committee's written report of its findings from that investigation. The faculty panel may hear argument by the accused faculty member and the Executive Vice President and Provost/Academic Officer and their respective counsel.

(d) Faculty Panel's Report Recommending Sanction. The faculty panel shall present its recommendations regarding any appropriate sanction in a written report in accordance with paragraph i below.

(e) President's Review. The President shall determine what sanction, if any, the University shall impose. In no case shall the President reconsider the findings of the standing committee. The President's decision shall be based on: 1) the record made in the initial inquiry conducted by the Research Integrity Officer; 2) the standing committee's written report of its findings from its own investigation; and 3) the faculty panel's report recommending sanctions. The President shall not hold an evidentiary hearing, but may meet with the faculty 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 be bound by the findings of the standing committee and shall give great weight to the recommendations of the faculty panel. The President may seek advice of counsel concerning the decision, but the Office of General Counsel shall not provide that advice if any member of that office had previously advised the Academic Officer, the University Representative, the Vice President for Research, or any other person representing the University's interests in that proceeding.

If the President accepts all of the faculty panel's recommendations regarding sanctions, the President shall direct that the panel's recommendations be implemented; notification of the President's decision shall be made as set forth in paragraph j(2) below; and the case will then be closed. If the President does not accept one or more of the faculty panel's recommendations regarding sanctions, the procedures set forth in paragraph j(3) below shall apply.

b. Initial Steps.
(1) Complaint. A complaint that a faculty member has violated the Professional Ethics and Academic Responsibility Policy may be filed with the Academic Officer by any person, or a complaint may be initiated by the Academic Officer.

(2) Preliminary Actions by the Academic Officer. The Academic Officer shall make a brief investigation as may be appropriate to determine whether there is a reasonable basis for believing that a violation of the Professional Ethics and Academic Responsibility Policy has occurred. This investigation, to be conducted in such a manner as to avoid injury to the faculty member's reputation, ordinarily shall be completed within thirty days following receipt of the complaint.

(a) If, at this time or at any later time, the Academic Officer concludes that a reasonable basis does not exist, the Academic Officer shall so notify the complainant. Despite a finding of no reasonable basis, the Academic Officer may, in his or her discretion, conclude that reconciliatory mediation between the faculty member and the complainant may be helpful. In those cases, the Academic Officer shall so notify the Presiding Officer within ten days after notifying the complainant of the finding of no reasonable basis, and the Presiding Officer, as soon as possible, shall so notify the faculty member and the complainant. Only if both the faculty member and the complainant agree to participate in the recommended reconciliatory mediation shall mediation between them take place. Such mediation shall proceed according to the procedures set forth in III-29.7e. If the Academic Officer does not conclude that reconciliatory mediation would be helpful, or if the faculty member and the complainant do not agree to participate in such mediation, the case will be closed, and no further investigation, mediation or review will be undertaken.

(b) Settlement. At any time before a Notice of Charges is filed, the faculty member and the Academic Officer may enter into a negotiated settlement. Any settlement shall be confidential unless the faculty member, the Academic Officer, and the complainant, if any, agree otherwise.

(c) If the Academic Officer concludes that there is a reasonable basis for believing that a violation of the Professional Ethics and Academic Responsibility Policy has occurred, the Academic Officer, on behalf of the University, shall forward a Notice of Charges to the Presiding Officer.

c. Notice of Charges. The Notice of Charges shall quote the provisions of the Professional Ethics and Academic Responsibility Policy or other University Policy set forth in paragraph a above asserted to have been violated and shall set forth in reasonable detail the circumstances of the alleged violation. Copies of the Notice of Charges shall be sent to the faculty member involved, to the departmental executive officer and collegiate dean, to the Presiding Officer, and to the complainant, if other than the Academic Officer. The Academic Officer shall attach to the Notice of Charges sent to the faculty member a copy of these procedures.
(1) Any complaint resulting in a Notice of Charges shall proceed to mediation as described below. The purpose of such mediation shall be to attempt to settle the matter to the mutual satisfaction of the complainant, the charged faculty member, and the Academic Officer.

(2) Any complaint not resulting in a Notice of Charges may proceed to reconciliatory mediation as described in III-29.7e. If reconciliatory mediation does not take place, the case will be closed, and no further investigation, mediation or review will be undertaken.

d. Mediation After a Finding of Reasonable Basis. This paragraph d applies to all cases where the Academic Officer has made a finding of reasonable basis under III-29.7b(2)(c). The parties in these cases shall be the faculty member and the Academic Officer. The complainant, if any, may participate in the mediation at his/her own discretion, but shall not be required to do so.
(1) Suspension of Proceedings. Proceedings will be suspended for twenty days from the date of the Notice of Charges. During this time, the Presiding Officer shall select a mediator from the list of mediators then serving on the Faculty Judicial Commission.

(2) Selection of Mediator. The Presiding Officer shall remove from the list of mediators then serving on the Faculty Judicial Commission any mediator against whose service the Academic Officer or the faculty member shows cause to the satisfaction of the Presiding Officer. Then the faculty member may indicate the order of preference for mediation by each of the mediators remaining on the Presiding Officer's list. The Presiding Officer shall make necessary arrangements with the mediator for whom the faculty member indicated first preference. If this individual declines to serve as mediator, the Presiding Officer shall contact the person next in the order of the faculty member's stated preference, and so on until a mediator is selected. If none of the mediators can serve, then the mediator shall be selected by agreement of the faculty member and the Academic Officer. If the Presiding Officer determines that no agreement can be reached, then the Presiding Officer shall select randomly three members of the Faculty Judicial Commission who are qualified and available for service, placing them on the list of potential mediators. The faculty member and the Academic Officer each may make one peremptory challenge, after which the Presiding Officer shall appoint as mediator that individual remaining on the list, or, if more than one individual remains on the list, the Presiding Officer shall select the mediator randomly from those remaining.

(3) Preliminary Investigation Results. The results of any preliminary investigation by the Academic Officer shall be available to the mediator.

(4) Time Frame. Mediation shall begin at any time after twenty days after the date of the Notice of Charges. Mediation must be completed or declared unsuccessful by the mediator within thirty days after mediation begins.

(5) Preliminary Matters. The mediator shall meet with the parties at the outset of the mediation to establish the procedures under which the mediation will be conducted. (6) Mediator's Report. At the conclusion of the mediation, the mediator shall submit a written report to the Academic Officer and the Presiding Officer, with copies to the faculty member and the complainant. Such report shall state only whether the matter was settled or not settled, and if settled, the mediator shall attach to the report a copy of the settlement agreement which shall be signed by the parties.

(7) Academic Officer's Consent to Settlement. The Academic Officer shall not participate actively in the mediation except in those cases in which there is no complainant or in which the complainant declines to participate in the mediation. The Academic Officer must consent to any settlement reached through any mediation, except mediation pursuant to III-29.7b(2)(a) above, for the settlement to become effective and to terminate the grievance. Therefore, the mediator may consult with the Academic Officer, at the mediator's discretion, in order to provide the faculty member and complainant an opportunity to evaluate the viability of proposed settlements.

(a) If the Academic Officer accepts the settlement, the Academic Officer shall so indicate in a letter to the faculty member, with a copy to the mediator, the complainant, and the Presiding Officer. The settlement achieved through the mediation will be implemented by the appropriate administrative officers, and the case will then be closed. Such settlement shall remain confidential unless the faculty member, the Academic Officer, and the complainant, if any, agree otherwise.

(b) If the Academic Officer does not accept the mediated settlement, or if the mediator reports that no settlement was achieved, the Academic Officer may, at his or her discretion, drop the charges or notify the Presiding Officer that a faculty panel will have to be appointed to investigate and decide the case. This notification shall include a summary of actions in the case that occurred since the date of the Notice of Charges.

e. Possible Reconciliatory Mediation After a Finding of No Reasonable Basis. This paragraph e applies to those cases in which: 1) the Academic Officer has concluded, under III-29.7b(2)(a), that reconciliatory mediation may be helpful, although no reasonable basis exists; and 2) both the faculty member and the complainant agree to participate in such mediation. Such mediation should focus on the resolution of issues raised by the complaint in order to allow the parties to restore their relationship and to return to their respective duties. Such mediation is not intended to address the Academic Officer's decision against filing a Notice of Charges and shall not be used to question that decision. The parties in these cases shall be the faculty member and the complainant.
(1) Selection of Mediator. The Presiding Officer, in consultation with the parties, shall identify a suitable mediator from among those mediators then serving on the Faculty Judicial Commission.

(2) Preliminary Investigation Results. The results of any preliminary investigation by the Academic Officer shall be available to the mediator.

(3) Time Frame. Mediation shall begin at any time after twenty days both parties have advised the Presiding Officer of their willingness to participate. Mediation will continue to resolution, or until, in the mediator's discretion, no resolution is likely.

(4) Mediator's Report. At the conclusion of the mediation, the mediator shall submit a written report to the Academic Officer and the Presiding Officer, with copies to the faculty member and the complainant. The report shall state whether a resolution was reached, and if so, the terms of such resolution. If no resolution was reached, the mediator shall explain briefly the mediator's rationale for ending the mediation.

(5) Termination of the Case. Once mediation has ended, the case will be closed, and no further investigation or review will be undertaken.

f. Faculty Panel Appointment. The Presiding Officer shall appoint a faculty judicial panel to review and decide any case not settled after mediation under paragraph d and any case arising under the University Policy on Ethics in Research in which the accused faculty member rejects the sanction proposed by the Executive Vice President and Provost/Academic Officer. Other than in cases arising under the University Policy on Ethics in Research, no faculty panel shall be appointed in any case in which no reasonable basis finding has been made. In its discretion, the faculty judicial panel may seek the assistance of the Investigating Officer in investigating the Notice of Charges prior to holding a hearing.

g. Hearing.

(1) The Investigating Officer shall assist the panel as necessary in obtaining, with notice to the faculty member and the Academic Officer, any non-testimonial evidence the panel may desire before proceeding to hearing. The Investigating Officer also shall assist the panel in making arrangements for the hearing and shall have other duties as described below.

(2) Open Hearing. The hearing shall be open unless:

(a) both the Academic Officer and the accused faculty member 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.

(3) Recording. The hearing shall be recorded by videotape and may also be recorded by a stenographic reporter, as the panel may decide. The record of the hearing may, at the discretion of the panel, exclude the discussion of procedural matters. The Investigating Officer shall ensure that the recording process maintains the confidentiality of the proceedings, and that the resulting videotape is maintained in a secure manner, protecting its confidentiality. If either party requests a transcript, that party shall bear its cost. If the panel requests a transcript, the Investigating Officer shall bear its cost.

(4) Refusal to Testify. A faculty member against whom a charge has been brought has the right to refuse to testify or even to appear at a hearing on the case. Such a refusal to testify or to appear shall not be taken as indicative of guilt and shall not prejudice the faculty member's case in any way.

(5) Sequestration of Witnesses. Any witness other than the faculty member or the Academic Officer shall be sequestered from the hearing until such witness has completed testifying, unless the panel, in the interests of justice, objects to such sequestration.

(6) Rights of the Parties. Subject to the Investigating Officer's power to control the hearing, described in paragraph (8) below, the accused faculty member may be accompanied by another faculty member of his or her choice, subject to paragraph (5) above, regarding sequestration of witnesses. In addition, the Academic Officer and the accused faculty member 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.

(7) Rights of the Complainant. The judicial panel shall determine whether the complainant may attend the hearing for any purpose other than to testify. The panel's determination shall be based on the interests of justice and shall take into account the advice of the Investigating Officer. The complainant shall have the right to be represented by counsel or by another person of his or her choice in connection with the complainant's testimony as a witness at the hearing. The complainant shall not participate as a party in the hearing.

(8) 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 called by either party;

(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 the panel;

(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; and

(h) to sequester witnesses, pursuant to paragraph (5) above.

(9) The Panel. The panel shall have the power:
(a) to ask questions of any witness; and

(b) to make the findings and recommendations required to write the report described below.

h. Burden of Proof and Standards of Judgment. In all cases brought under this section, the Academic Officer, on behalf of the University, shall bear the burden of proving, by clear and convincing evidence in the record as a whole, that the faculty member violated the Professional Ethics and Academic Responsibility Policy or other University policy as stated in the Notice of Charges.

i. Report. The panel shall state its findings and 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 hearing.

(1) The report shall be written in a manner that satisfies the requirement of protecting confidentiality to the maximum extent possible as provided in III-29.4j.

(2) In all cases except those arising under the University Policy on Ethics in Research, set forth in II-27.6, the report shall set forth findings of fact and conclusions drawn from those findings. The report shall specify any sanctions that the panel recommends; such sanctions may consist of any combination of the following:

(a) Letter of warning or censure;

(b) Denial of specific privileges for specified periods;

(c) Adjustments in assigned duties or in compensation;

(d) Suspension for a specified period;

(e) Dismissal from employment;

(f) Performance of additional duties or issuance of apologies; or

(g) Other remedies or sanctions that the panel deems appropriate.

(3) In preparing its report, the panel in its discretion may seek the assistance of the Investigating Officer.

(4) The panel shall send its report and recommendations, if any, to the Presiding Officer. The Presiding Officer then shall send copies of the report to the faculty member, the President, the Academic Officer, the complainant, if any, and the Investigating Officer. In a case arising under II-27.6, the Policy on Ethics in Research, the Presiding Officer also shall send copies of the report to the Vice President for Research.

j. President's Review. The President shall determine what action, if any, the University shall take, based on the panel's findings and recommendations. 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 Academic Officer or 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 burden of proof and standard of judgment stated in paragraph h above.

(2) President Accepts All Findings and/or Recommendations. If the President accepts all of the panel's findings and/or recommendations for sanctions, 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 Findings and/or Recommendations. If the President does not accept one or more of the findings and/or recommendations of the panel, the President shall inform the panel members in writing of the reasons for not accepting such finding(s) and/or recommendation(s) and shall send a copy thereof to the faculty member, the Academic Officer, the Presiding Officer and the Investigating Officer. Within five days of receiving the President's decision, the faculty member and the Academic Officer each 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 findings and 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, the faculty member and the Academic Officer each 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 Rejects all Findings and/or Recommendations. If, after panel reconsideration, the President rejects all of the panel's findings and/or recommendations for sanctions, 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 further review.

(b) After Panel Reconsideration, President Accepts At Least One, But Not All, Findings and/or Recommendations. If, after panel reconsideration, the President accepts at least one, but not all, of the panel's findings and/or recommendations for sanctions, the President shall direct that those recommendations that the President accepts be implemented. The President shall inform the panel members in writing of those findings and/or 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.
[top]

29.8 UNACCEPTABLE PERFORMANCE OF DUTY WARRANTING TERMINATION.
(1/02)

a. Introduction.
(1) Scope. This section establishes procedures to be followed by the University in initiating and conducting proceedings against a faculty member whose performance of duty is alleged to fall for a significant period of time, below the standard of performance required of an individual in the position occupied by the faculty member, to such an extent that the person is unfit to serve on the faculty.

(2) Alternative Conclusions. The procedures set forth in this section are intended only in cases for which dismissal for unacceptable performance of duty is contemplated, although the proceedings under this section may result in a recommendation other than termination. For example, the procedures may result in a change of the faculty member's assigned duties, a reallocation of effort, or other adjustments in the terms and conditions of the faculty member's employment.

(3) Academic Freedom. All proceedings under this section shall respect the principles of academic freedom stated in the Statement on Tenure and Academic Vitality at The University of Iowa (III-10.1 a(2), Regents 2/14/74 ), which commits the university to the principle that "free inquiry and expression are essential to the maintenance of excellence; tenure is essential to free inquiry and expression."

(4) Responsibility for lodging a complaint of unacceptable performance of duty warranting termination lies with the collegiate dean, according to the procedures set out in this section.

(5) Responsibility for formal notice of a charge of unacceptable performance of duty warranting termination lies with the academic officer, according to the procedures set out in this section.

b. Conditions. A tenured faculty member may be subject to a complaint of unacceptable performance of duty warranting termination only under the following conditions:
(1) When a faculty member's performance of duty is judged to have been, for a significant period of time, below the standard of performance required of an individual in the position occupied by the faculty member, to such an extent that the person is unfit to serve on the faculty, for reasons that may include but are not limited to substantial and manifest neglect of faculty duties, or inability to perform those duties.

(2) When reasonable efforts have been made by University, collegiate, and departmental officers to resolve concerns about unacceptable faculty performance in accordance with the University's policies governing post-tenure performance, including but not limited to yearly evaluations for merit pay, and periodic post-tenure review, and through other remedies short of termination.

c. Complaint.
(1) The collegiate dean shall make a complaint of unacceptable performance of duty warranting termination only after formal consultation with faculty colleagues in the department or academic unit of the faculty member's principal and secondary appointments, according to the following procedures.
(a) The dean shall request an independent report from the departmental consulting group(s), consisting where possible of all faculty with primary appointments in the faculty member's unit of equal and higher rank and in no case fewer than four (as defined in policies governing tenure and promotion) or an ad hoc committee elected by the relevant consulting group(s) and charged with the function of rendering confidential advice in such situations. When making the request, the dean shall state explicitly the basis for the request with reference to each of the conditions outlined in paragraph b above. At the time the request is made, the dean shall inform the faculty member in writing that a request for a report has been made to the departmental consulting group(s), and shall provide the faculty member a copy of the request.

(b) In the report, each departmental consulting group(s) or elected committee(s) shall make a judgment concerning whether the faculty member's performance of duties warrants termination. Qualified faculty peers (both internal and external) carry primary responsibility for assessing the acceptability of a faculty member's teaching, scholarship, and service.

(c) In colleges with DEOs, the dean also shall request an independent report from the faculty member's DEO.

(d) If the faculty member has a joint appointment within a college, the dean shall request the reports described in this section (III-29.8b(1)(a)-(c)) from each academic unit in the college.

(e) If the faculty member has a joint appointment in more than one college, the dean initiating the investigation will inform the dean(s) of the other appropriate college(s) and have each dean request the reports described in this section (III-29.8b(1)(a)-(c)) from each relevant academic unit in the college(s). When the reports from each unit in the college have been received, the dean(s) will forwarded them with his/her own letter regarding the faculty member's performance to the dean initiating the investigation.

(f) All evaluations and reports solicited by the dean must include an explanation of the standards used to judge the faculty member's performance and the basis for determining any conclusions or recommendations.

(g) Before the reports prepared by the departmental consulting group(s) and DEO(s) are transmitted to the dean, the DEO(s) of the faculty member's principal and secondary academic unit(s) will provide the faculty member with a complete redacted copy of all reports. The faculty member shall be given a reasonable opportunity (normally up to 30 days) to respond in writing to the reports before they are transmitted to the dean.

(2) The collegiate dean's complaint of unacceptable performance of duty warranting termination shall be based on a thorough evaluation of the written record concerning the faculty member's overall performance.
(a) The evaluation shall consider whether or not the faculty member's performance of duty has been for a significant period of time, below the standard of performance required of an individual in the position occupied by the faculty member to such an extent that the person is unfit to serve on the faculty.

(b) The collegiate dean shall assemble a written record which shall include, but not be limited to, post-tenure reviews and other methods of peer evaluation, the findings and recommendations of the departmental consulting group(s) and the DEO(s), and any responses to those reports by the faculty member.

(c) The faculty member shall have the right to comment on a redacted copy of the entire written record prepared by the dean, and a reasonable amount of time (normally up to 30 days) to respond in writing.

(d) Before the dean notifies the academic officer of a complaint of unacceptable performance of duty warranting termination, the responsible departmental executive officer or the collegiate dean shall fully inform the faculty member of the grounds for the complaint, and may explore with the faculty member possible settlements, which might preclude the necessity for formal University-level action charging the faculty member with unacceptable performance of duty warranting termination.

(e) The dean may deviate from the findings of the departmental consulting groups on the acceptability of the faculty member's academic performance only to the extent that the dean finds them to be clearly erroneous.

(3) The collegiate dean shall notify the academic officer of a complaint of unacceptable performance of duty warranting termination by setting forth in writing the specific findings of unacceptable performance of duty warranting termination. The dean's notification shall include the entire written record (including all responses from the faculty member), and a review of the efforts that have been made to resolve the matter within the established procedures of the college in question, addressing each of the conditions set out in paragraph b above.

d. Formal Notice by Academic Officer. On receipt of the dean's notification of a complaint of unacceptable performance of duty warranting termination, the academic officer shall:
(1) Determine whether there is a reasonable basis for the complaint that the faculty member's performance of duty has been for a significant period of time, below the standard of performance required of an individual in the position occupied by the faculty member to such an extent that the person is unfit to serve on the faculty.

(2) Ascertain whether good faith efforts have been made by collegiate and departmental officers to resolve concerns in a manner mutually acceptable to all parties.

(3) Decide whether further action is warranted.

(4) Upon a determination that further action is warranted, the academic officer shall:

(a) Send to the presiding officer a copy of the collegiate dean's notification, a statement providing the academic officer's reasons for deciding that further action is warranted, and a request that the presiding officer appoint a mediator from the Faculty Judicial Commission;

(b) File a formal charge of unacceptable performance of duty warranting termination against the faculty member and send it and a copy of the collegiate dean's notification, and a copy of the academic officer's statement, to the faculty member, together with a notice that the matter will proceed to mediation, pursuant to the procedures set forth in III-29.8d.

e. Mediation.
(1) Proceedings will be suspended for twenty days from the date of the academic officer's formal notice. During this time, the presiding officer shall select a mediator from the list of mediators then serving on the Faculty Judicial Commission. The presiding officer shall remove from this list any mediator against whose service the academic officer or the faculty member shows cause to the satisfaction of the presiding officer. Then the faculty member may indicate the order of preference for mediation by each of the mediators remaining on the presiding officer's list. The presiding officer will make necessary arrangements with the mediator for whom the faculty member indicated first preference. If this individual declines to serve as mediator, the presiding officer will contact the person next in the order of the faculty member's stated preference, and so on until a mediator is selected. If none of the mediators can serve, then the mediator shall be selected by agreement of the faculty member and the academic officer. If the presiding officer determines that no agreement can be reached, then the presiding officer shall select randomly three members of the Faculty Judicial Commission who qualify and are available for such service, placing them on the list of potential mediators. The faculty member and the academic officer each may make one peremptory challenge, after which the presiding officer shall appoint as mediator that individual remaining on the list, or, if more than one individual remains on the list, the presiding officer shall select the mediator randomly from those remaining.

(2) Parties. The academic officer and the faculty member shall be the parties to the mediation.

(3) Mediation shall begin at any time after twenty days after the date of the academic officer's formal notice. Mediation must be completed or declared unsuccessful by the mediator within thirty days after mediation begins.

(4) Preliminary Matters. The mediator shall meet with the parties at the outset of the mediation to establish the procedures under which the mediation will be conducted.

(5) At the conclusion of the mediation, the mediator shall submit a report to the academic officer and the presiding officer, with copies to the parties involved. Such report shall state only whether the matter was settled or not settled, and if settled, the mediator shall attach to the report a copy of the settlement agreement which shall be signed by the parties.

(a) The appropriate administrative officers shall implement any settlement achieved through the mediation, and the case will then be closed. Such settlement shall remain confidential unless the faculty member and the academic officer agree otherwise.

(b) If the mediator reports that no settlement was achieved, the academic officer may, at his or her discretion, dismiss the case or notify the presiding officer that a faculty panel will have to be appointed to investigate and decide the case. This notification shall include a summary of actions in the case that occurred since the date of the formal notice.

f. Faculty Judicial Panel Appointment. If a faculty judicial panel is needed to review and decide the case, the presiding officer is responsible for the appointment. In its discretion, the faculty judicial panel may seek the assistance of the investigating officer in investigating the formal notice prior to holding a hearing.

g. Hearing.

(1) The investigating officer shall assist the faculty judicial panel as necessary in obtaining, with notice to the faculty member and the academic officer, any non-testimonial evidence the panel may desire before proceeding to hearing. The investigating officer also shall assist the panel in making arrangements for the hearing and shall have other duties as described below.

(2) Open Hearing. The hearing shall be open unless:

(a) both the academic officer and the accused faculty member 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.

(3) Recording. The hearing shall be recorded by videotape and may also be recorded by a stenographic reporter, as the panel may decide. The record of the hearing may, at the discretion of the panel, exclude the discussion of procedural matters. The investigating officer shall ensure that the recording process maintains the confidentiality of the proceedings, and that the resulting videotape is maintained in a secure manner, protecting its confidentiality. 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.

(4) Refusal to Testify. A faculty member against whom a charge has been brought has the right to refuse to testify or even to appear at a hearing on the case. No adverse inferences shall be drawn from the faculty member's failure to testify and such failure shall not prejudice the faculty member's case in any way.

(5) Sequestration of Witnesses. Any witness, other than the faculty member or the academic officer, shall be sequestered from the hearing until such witness has completed testifying unless the panel, in the interests of justice, objects to such sequestration.

(6) Rights of the Parties. Subject to the investigating officer's power to control the hearing, described in paragraph (7) below, the accused faculty member may be accompanied by another faculty member of his or her choice, subject to paragraph (5) above, regarding sequestration of witnesses. In addition, the academic officer and the accused faculty member 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.

(7) 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 called by either party;

(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 which 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;

(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;

(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; and

(h) to sequester witnesses, pursuant to paragraph (5) above.

(8) The Panel. The panel shall have the power:
(a) to ask questions of any witness; and

(b) to make the findings and recommendations and to write the report described below.

h. Burden of Proof and Standards of Judgment. In all cases brought under this section seeking dismissal or termination, the academic officer, on behalf of the University, shall bear the burden of proving, by clear and convincing evidence in the record as a whole, the findings of unacceptable performance of duty warranting termination set forth in the dean's notification, and shall bear the burden of proving, by clear and convincing evidence in the record as a whole, that the determination of unacceptable performance of duty warranting termination involves no violation of the academic freedom of the faculty member, if the faculty member has alleged such a violation.

i. Report. The panel shall state its findings and 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 hearing.

(1) The report shall be written in a manner that satisfies the requirement of protecting confidentiality to the maximum extent possible as provided in III-29.4i.

(2) The report shall contain findings of fact and conclusions drawn from those findings. The report shall specify any sanctions that the panel recommends, including termination of appointment, change in the faculty member's assigned duties, or other adjustments in the terms of the faculty member's employment.

(3) In preparing its report, the panel in its discretion may seek the assistance of the investigating officer.

(4) The panel shall send its report and recommendations, if any, to the presiding officer. The presiding officer then shall send copies of the report to the faculty member, the President, the academic officer, and the investigating officer.

j. President's Review. The President shall determine what action, if any, the University shall take, based on the panel's findings and recommendations. The President may seek advice of counsel concerning the decision, but the Office of the General Counsel shall not provide that advice if it had previously advised the academic officer or 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 be bound by the burden of proof and standard of judgment stated in paragraph g above.

(2) President Accepts All Findings and/or Recommendations. If the President accepts all of the panel's findings and/or recommendations for sanctions, 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 Findings and/or Recommendations. If the President does not accept one or more of the findings and/or recommendations of the panel, the President shall inform the panel members in writing of the reasons for not accepting such finding(s) and/or recommendation(s) and shall send a copy thereof to the faculty member, the academic officer, the presiding officer and the investigating officer. Within five days of receiving the President's decision, the faculty member and the academic officer each 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 findings and 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, the faculty member and the academic officer each 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) President Rejects all Findings and/or Recommendations. If, after panel reconsideration, the President rejects all of the panel's findings and/or recommendations for sanctions, 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 further review by the Board of Regents.

(b) After Panel Reconsideration, President Accepts At Least One, But Not All, Findings and/or Recommendations. If, after panel reconsideration, the President accepts at least one, but not all, of the panel's findings and/or recommendations for sanctions, the President shall direct that those recommendations that the President accepts be implemented. The President shall inform the panel members in writing of those findings and/or 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.

k. Appeal to the Board of Regents. Any tenured faculty member terminated for unacceptable performance of duty shall have the right of appeal to the Board of Regents.
[top]

29.9 CLINICAL FACULTY MEMBER TERMINATION OR DENIAL OF PROMOTION OR REAPPOINTMENT.

a. Introduction.
(1) Scope. The procedures described in this section constitute the exclusive remedy within the University for a salaried clinical faculty member who wishes to challenge a decision by the University to terminate or to deny promotion or reappointment to the clinical faculty member. A clinical faculty member may challenge the University's administrative action or non-action by following the procedures set forth in III-29.6. The procedures for determination of unethical conduct by a clinical faculty member are governed by III-29.7. The University's general policy regarding clinical faculty members is stated in III-10.9.

(2) Grounds for a Challenge to a Decision to Deny Initial Reappointment. A challenge by a clinical faculty member to a decision by the University to deny reappointment before the clinical faculty member has received a successful three-year review 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 reappointment to the clinical faculty member by an authorized administrator of the University;

(b) Clearly Adequate Record of Achievement: that the decision is unjustified in view of the clinical 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 clinical faculty member's age, race, sex, religion, national origin, affectional or associational preference, disability, other characteristic that should be irrelevant to the decision, or for a reason that violates the clinical faculty member's academic freedom;

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

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

(3) Grounds for a Challenge to a Decision to Deny Promotion. A challenge by a clinical faculty member to a decision by the University to deny promotion may be made only on one or more of the grounds which are identified as follows:
(a) Violation of a University Obligation: that the decision was made in violation of a written promise of promotion to the clinical faculty member by an authorized administrator of the University;

(b) Clearly Adequate Record of Achievement: that the decision is unjustified in view of the clinical 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 clinical faculty member's age, race, sex, religion, national origin, affectional or associational preference, disability, other characteristic that should be irrelevant to the decision, or for a reason that violates the clinical faculty member's academic freedom;

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

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

(4) Ground for a Challenge to a Decision to Terminate or to Deny Subsequent Reappointment. A challenge by a clinical faculty member to a decision by the University to terminate the clinical faculty member during the term of appointment, or to deny reappointment after the clinical faculty member has received at least one successful three-year review, may be made only on the ground of Lack of Justification: that the decision is not consistent with the standards set forth under III-10.9h(1)(a) or (b).

(5) Stages in These Procedures. The stages in the procedures in a clinical faculty member's challenge to a decision by the University to terminate or to deny promotion or reappointment to the clinical 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 clinical faculty member who wishes to challenge a decision by the University to terminate or to deny promotion or reappointment to the clinical 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 clinical 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 terminate or to deny promotion or reappointment to the clinical faculty member, the collegiate dean shall promptly, in writing, officially inform the clinical faculty member of the decision and of the clinical 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 clinical faculty member who wishes to pursue a challenge to a decision by the University to terminate or to deny promotion or reappointment to the clinical 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 clinical 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 clinical faculty member's satisfaction and the clinical faculty member wishes to pursue the challenge, the clinical faculty member may request an investigation. This request must be made within twenty business days after the clinical 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 clinical faculty member's departmental executive officer, and the Academic Officer. In the request, the clinical faculty member must attach a copy of the collegiate dean's official notice, a copy of the clinical faculty member's request for a statement of reasons, and a copy of the Academic Officer's statement of reasons and 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 clinical 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 clinical 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 clinical 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 or professional service of other clinical faculty members. Absent a showing of particular relevance, only the personnel records of clinical faculty members, and not those of tenure-track faculty members, shall be used in cases under this Section III-29.9. 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 III-29.9d(11), 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.

(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 clinical 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 clinical faculty member's Final Statement, the University shall submit its Final Statement, which may respond to the arguments raised in the clinical faculty member's Final Statement.

(c) The clinical faculty member may submit a written Rebuttal to the University's Final Statement, provided that the clinical faculty member does so within ten business days following the clinical 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 the Investigating Officer deems appropriate. 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 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, in consultation with the panel, shall impose any limitations on the factual issues to be considered in a hearing and on the time for argument to the panel.

(13) Communication between the Panel and the Parties. All communication regarding the matter in dispute by the Judicial Panel or any of its members to either party shall copy 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 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 clinical 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, the parties 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;

(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.

(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.
(1) Denial of Promotion or Initial Reappointment. In a challenge to the University's denial of reappointment before the clinical faculty member has received a successful three-year review or to the University's denial of promotion, the Judicial Panel shall make findings of fact and shall draw conclusions based on those findings, in accordance with the burdens of proof and standards of judgment applicable to each Ground for Challenge, as set forth below.
(a) Violation of a University Obligation.
(i) In order to gain a favorable recommendation from the panel on this ground, the clinical faculty member must show, by clear and convincing evidence, that, on the basis of a written promise to the clinical faculty member by departmental executive officer, collegiate dean, or other authorized administrator of the University, the clinical faculty member was justified in believing that promotion or reappointment would be granted on the basis of the clinical faculty member's acknowledged accomplishments and that the clinical faculty member relied detrimentally on the promise. In order to rely on a written promise the clinical 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 clinical 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 clinical faculty member on this ground.

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

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

(ii) The panel shall judge the merits of a claim of a Clearly Adequate Record of Achievement in the case of a promotion or reappointment decision by the relevant clearly defined written standards of the clinical faculty member's department or other academic unit that were in effect at the time of the clinical faculty member's original appointment or reappointment, unless other standards by which the clinical faculty member would be judged were stated in a written communication made to the clinical faculty member by the departmental executive officer or collegiate dean at that time. If other standards were thus communicated, they shall govern the case. The panel may take into account formulations of standards adopted later only if doing so does no harm to the clinical faculty member's case. The panel may also consider comparable decisions concerning other clinical faculty members in interpreting and applying written standards. In the absence of written standards or written communication, the panel shall deem the standards to be those that prevailed in comparable decisions concerning other clinical faculty members; or, where the clinical faculty member has made a showing of particular relevance, comparable decisions concerning tenure-track faculty members may be used.

(iii) The panel shall give great weight to the assessment of any person or persons knowledgeable in the faculty member's teaching area 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.

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

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

(c) Improper Reason.
(i) In order to gain a favorable recommendation from the panel on this ground, the clinical faculty member must show, by a preponderance of the evidence, that the decision to deny promotion or reappointment to the clinical faculty member was substantially affected by an improper reason as defined in paragraph (ii) below.

(ii) An Improper Reason is one based in whole or in part on the clinical faculty member's age, race, sex, religion, national origin, affectional or associational preference, disability, or other characteristic that should be irrelevant to the decision, or by a reason that violates the clinical faculty member's academic freedom.

(iii) If the panel finds in favor of the clinical faculty member on this ground, it shall recommend that a reconsideration of the original decision to deny the clinical faculty member 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 clinical faculty member's record as updated to the time of the reconsideration; and that an extension of the clinical faculty member's probationary appointment be granted as appropriate to make such reconsideration possible.

(d) Improper Procedure.
(i) In order to gain a favorable recommendation from the panel on this ground, the clinical faculty member initially must show, by a preponderance of the evidence, that in the actions leading to the decision by the University (to deny promotion or reappointment to the clinical 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 clinical 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.

(ii) If the panel finds in favor of the clinical faculty member on this ground, it shall recommend that a reconsideration of the original decision to deny the clinical faculty member 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 clinical faculty member's record as updated to the time of the reconsideration; and that an extension of the clinical faculty member's probationary appointment be granted as appropriate to make possible such reconsideration.

(e) Unfair Impediment.
(i) In order to gain a favorable recommendation from the panel on this ground, the clinical 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 clinical faculty member's failure to meet established standards.

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

(2) Termination or Denial of Subsequent Reappointment. In a challenge to the University's termination of a clinical faculty member during the term of appointment, or to the University's denial of reappointment after the clinical faculty member has received at least one successful three-year review, the Judicial Panel shall make findings of fact and shall draw conclusions based on those findings, in accordance with the burdens of proof and standards of judgment applicable to each Ground for Challenge, as set forth below.
(a) Lack of Justification.
(i) In order to gain a favorable recommendation from the panel on this ground, the University must show, by the preponderance of the evidence, that its termination of or decision not to reappoint the clinical faculty member was for the clinical faculty member's failure to meet applicable written standards of competence and performance; or that the decision not to reappoint was for changed economic circumstances or program needs such that the position itself is terminated, and that appropriate notice was given to the clinical faculty member.

(ii) If the panel finds in favor of the clinical faculty member on this ground in the case of termination, it shall recommend that the clinical faculty member be reinstated under the prior appointment. If the panel finds in favor of the clinical faculty member on this ground in the case of denial of reappointment, it shall recommend that the clinical faculty member be reappointed for a term no less than three years. The panel, in its discretion, may recommend reappointment for a longer term, and the panel also may recommend other actions, except for the paying of fees of counsel, that it judges to be required by the equities of the case.

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 clinical faculty member, it may make, in addition to its major recommendation concerning the clinical faculty member's termination, promotion or reappointment, recommendations for other actions, except for the paying 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 clinical 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 clinical faculty member, including the identity and definition of each ground specified in III-29.9a(2) and (3);

(b) an express statement of the burden of proof governing each ground raised by the clinical faculty member as specified in III-29.9f;

(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 clinical 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-29.4j and III-29.9d(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 clinical faculty member on any ground, the Presiding Officer shall send copies of the report only to the clinical 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 clinical faculty member further review.

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

h. The President's Decision. If the panel has found in favor of the clinical 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 clinical faculty member promotion or reappointment as the case may be unless the panel has specifically recommended that action.

(2) President Accepts All Recommendations in Favor of Clinical Faculty Member. If the President accepts all of the panel's findings and recommendations in favor of the clinical 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 clinical 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 Clinical Faculty Member. If, after panel reconsideration, the President decides against the clinical 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 clinical 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 clinical faculty member a request for review.

(b) After Panel Reconsideration, President Accepts At Least One, But Not All, Recommendations in Favor of Clinical Faculty Member. If, after panel reconsideration, the President accepts at least one, but not all, of the panel's recommendations in favor of the clinical 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 clinical 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 clinical faculty member a request for review with regard to those recommendations not accepted by the President.
[top]