GRIEVANCE AND
HEARING RIGHTS
A Primer to the UNC System Code and Policy
Manual
The Code
The Code of the Universityy of North Carolina is the official
governance document for all of the constituent institutions
No policy on any campus or in any Faculty Handbook can
supersede the Code
All policies developed on a campus should follow the
guidelines of the Code
FACULTY RIGHTS BY
RANK
Tenured Faculty Rights in the UNC Code
• Section 603 provides
for Due Process before
Discharge or the
I
Imposition
iti off Serious
S i
Sanctions
• Section 605 is the
section designates
g
the
permissible reasons
for termination of
employment
• Section 607
designates the
grievance process
(
(see
also
l S
Section
ti
100.3.2 of the UNC
Policy Manual)
Tenure Track Facultyy Rights
g in the UNC
Code
• Section 604 sets out the
process for appointment,
nonreappointment and
requirements of notice and
review for tenure track
faculty(see also Section
100 3 1of the UNC Policy
100.3.1of
Manual)
• Section 605 designates
permissible reasons for
the p
termination of employment
• Section 607 designates
the grievance process(see
also Section 100.3.2 of the
UNC Policy Manual)
Other Faculty Appointments
• Section 605
designates the
permissible reasons
p
for termination of
employment
• Section 607
designates the
grievance process
• Section 610 states the
rights of “special
facultyy members.”
SECTION 607:
Grievance Rights
What constitutes a grievance?
• Matters directly
y related to the facultyy member’s:
• Employment status
• Institutional relationships within the constituent institution
• Post-Tenure Review
A Caveat
• When a decision not to p
promote is made at the same time
as a decision not to reappoint a faculty member, all
challenges to those decisions will be made pursuant to
Policy 100
100.3.1.
31
• Campus policy shall determine which faculty committee
shall hear such disputes.
What Matters Fall Outside of the Purview
of the Faculty Grievance Hearing
Committee?
• Matters related to a formal proceeding for suspension,
suspension
discharge, or termination of a faculty member
• Any item under the jurisdiction of another standing faculty
committee (as defined by the institution’s faculty
handbook)
Grievance
• This p
process is open
p to ALL faculty
y members during
g their
period of employment at one of the constituent institutions
• “Special Faculty” (visiting, adjunct, lecturers, artists-in-residence,
writers-in-residence, or other special categories) are entitled to
seek redress under Section 607 during the term of their
employment.
employment
• Once employment is at an end, the right to grieve also ends. A
Ch
Chancellor
ll may allow
ll
a grievance
i
iin process to continue.
i
The Constitution of the Facultyy Grievance
Hearing Committee
• The Chancellor shall
provide for the
establishment of this
committee
• It must be elected by
the faculty
• Members must come
from every faculty rank
• No officer of
administration
((including
g department
p
chairs or heads) can
serve
Placeholder
Here is an ideal location to talk about the constitution of this
committee and clear rules for its functioning. A few clips
from grievance chairs is also likely in order here.
Grievance Process
• A faculty member petitions the
Faculty
F
lt Grievance
Gi
Hearing
H i
Committee for redress
• Petition must follow the campus
procedure
• Petition must be in writing
• It should detail the nature of the
grievance and the name of the person
or persons against whom the grievance
is directed
• All pertinent information to the case
should be included
• It must be delivered to the designated
respondent administrator by certified
mail or another means that provides
proof of delivery
• Unless the parties to the grievance
have undergone
h
d
mediation
di ti prior
i tto
the filing of the petition, the faculty
grievance committee shall refer the
matter to mediation in accordance
with the policies of the constituent
institution
Mediation
• Each constituent institution will
have a policy that requires
parties in a dispute made under
Section 607 to enter into
mediation prior to the formal
faculty grievance process
• Parties may voluntarily enter
into mediation
• Mediated settlement cannot be
compelled
• If a mediated agreement is
reached, it must be executed in
writing
• With regard
g
to mediators,
campuses must:
• Have available a number of
mediators (faculty or staff,
community, or from other UNC
campuses) based on expected
need
• Mediators cannot be members of
the faculty committee hearing
Section 607 grievances
• Require mediators to have
completed formal mediation
training equivalent to that required
for certification by the NC
Administrative Office of the Courts
or formal training in mediation
designed for a university setting
More on Mediation
• A campus
p must:
• Determine under what
circumstances, if any,
attorneys will be allowed to
participate in the mediation
process
• Assure the parties that a
decision
d
i i nott tto pursue
mediation beyond the campus
required minimum will not be
held against either party
• Not blame either party if
mediation does not result in
settlement
• Ensure no record of a failed
mediation exists other than a
simple, unelaborated
statement to the necessary
authority (to get the grievance
process underway)
• Prohibit a mediator from
being called as a witness in
any subsequent proceeding
• Prohibit anything done or said
by either
b
i h party d
during
i a
mediation being referred to or
used against either party in a
subsequent proceeding
What the Facultyy Grievance Committee
Does
• Hear and advise with
respect to the
adjustment
j
of
grievances of a faculty
member
• Facilitate voluntary
adjustment by the
parties
• Advise adjustment by
the administration
when appropriate
pp p
The Grievance Review
• If mediation does not offer
a solution:
• The Faculty Grievance
Committee must determine if
the facts alleged in the
petition merit a detailed
p
investigation
• They are to assume the truth
of the facts presented in the
petition
• The petition is dismissed if
the grievant:
• Fails to allege an injury that
would entitle the faculty
member to relief based on:
• a violation of federal or state law
• university policies or regulations
• commonly shared
understandings about the rights,
privileges and responsibilities of
privileges,
university employment
• If the problem is not within the
committee’s
i
’ jjurisdiction
i di i
The Evidentiary Hearing
• If the petition is
accepted, an
evidentiaryy hearing
g
ensues
• Both sides present
evidence
• A complete
p
transcript
p
must be maintained
• The basis of any
decision is to be based
ONLY on the evidence
heard in this forum
A Preponderance of the Evidence
• This standard shall apply
pp y in the evidentiary
y hearing
g
• A preponderance of evidence means that a party has
shown that its version of facts, causes, damages, or fault
is more likely than not the correct version
Decision
Possible Verdicts and Notices
Role of the Chancellor
• If the committee advises an
j
for the aggrieved
gg
adjustment
faculty member, they will advise
the faculty member and the most
appropriate respondent
administrator
• If the adjustment is not made in a
reasonable period of time, they
shall advise the chancellor
• The Chancellor will review and base a
decision on the recommendation of the
committee and the record
• The Chancellor may consult with the
committee
• The decision of the Chancellor is final if
the committee did not find for the
aggrieved faculty member
• The decision of the Chancellor may be
• If the committee determines no
adjustment is to be made, they
advise the faculty member and
the chancellor
appealed if the committee finds for the
aggrieved faculty member and the
Chancellor’s decision varies
• The appeal is to the Board of Trustees and
their decision is final
Placeholder
I think it would be wise to insert here a “best practices”
p
guide or even a link to a web resource we could put on the
Faculty Assembly page with regard to mediation.
Board of Trustees
• A Grievant must file appeal by submitting notice to the Chancellor
within 10 days after receipt of the Chancellor’s
Chancellor s decision
• The notice shall include a brief statement of the basis for the appeal
• The Chancellor MUST communicate all relevant information to appeal
pp
in the
notice of decision
• If the Board agrees to hear it, it will be scheduled by the Chancellor
p
y as p
possible
as expeditiously
• The standard of review for the Board of Trustees is clear
demonstration by the faculty member that the Chancellor’s decision
was erroneous
• It violated federal or state law
• It violated university
y policies
p
and regulations
g
• The process for deciding the grievance was materially flawed
SECTION 603:
Due Process before discharge or imposition of serious
sanctions
Disciplinary Rights
• If a faculty member
has tenure, that person
is p
protected against
g
unjust and arbitrary
application of
disciplinary penalties
• Tenured faculty
members may be
discharged
g from
employment,
suspended, or
demoted for reasons
of:
• Incompetence
I
t
• Neglect of duty
• Misconduct
Notes
The procedures outlined here are NOT to apply to issues
related to reappointment or termination of employment
Once a faculty member has been notified of the intent to
act, the chancellor may reassign the individual to other
duties or suspend the individual until such time until a final
decision has been reached. Suspension shall be
exceptional and shall be with full pay.
Unjust and Arbitrary
• This is not a legal
g standing
g
• It is related to the definition of tyranny, which is
considered the arbitrary or unjust exercise of absolute
power
• In this instance, the serious sanction MUST be rooted not
only in a clear cause (as outlined in the code), but also
applied in such a way that other rational actors would take
the same action
Incompetence
• This term g
generally
y makes
reference to:
• A person who is diagnosed as
being mentally ill, senile, or
suffering from some other
debility that prevents them
from functioning effectively
• A person who fails to meet
professional codes of conduct
or the standards of conduct
y contract
outlined by
• This heading may include:
• Significant,
Significant sustained
unsatisfactory performance
• The faculty
y member MUST
have been given the
opportunity to remedy
such performance
• The faculty member must
have failed to achieve a
remedy in a reasonable
time
Neglect of Duty
• This term is generally
defined as the
omission to p
perform a
professional duty
• It does not matter if
this conduct is willful,
through malice, by
oversight, or rooted in
ignorance
• For purposes of the
policy, it is defined as
the failure to meet
classes or perform
other significant
professional
obligations
Misconduct
• It must rise to the level of
making the person “unfit” to
continue as a member of the
faculty
• Violation of professional ethics
• Mistreatment of students or other
employees
• Research misconduct
• Financial fraud
• Criminal or other illegal,
inappropriate, or unethical conduct
• To result in seriously
y disciplinary
y
actions, this conduct MUST BE:
• Sufficiently related to the faculty
member’s academic
responsibilities as to disqualify the
individual from effective
performance of university duties,
OR
• Sufficiently serious as to adversely
reflect on the individual’s honesty,
trustworthiness or fitness to be a
trustworthiness,
faculty member
Process
• The Chief Academic
Officer must send a written
notice of intention to
discharge or to sanction
the faculty member
• It must include written
specification of the
reasons
• It must be delivered by a
method that requires a
signature
i
t
f delivery
for
d li
• It must include notice of
the faculty member’s right,
upon request, to a hearing
by an elected standing
committee on hearings
Request for Hearing
• The faculty member,
member if
they desire, must
request a hearing within
14 days* after having
received the notice
*the
the day of the receipt is not
counted in the 14 days
• The request must be
made in writing
• Lacking such a request,
the action proposed may
be executed without
recourse to any
grievance or appellate
procedure
Hearing Committee
• The Chancellor shall ensure a
process for
f a timely
ti l hearing
h i b
before
f
an elected standing committee of
the institution’s faculty
• The
Th h
hearing
i shall
h ll b
be on th
the
WRITTEN specifications of reasons
for the intended discharge or
sanction
• The faculty member shall have 30
calendar days from the time the
hearing committee gets the request
for a hearing to prepare a defense
• This period can be extended by the
committee if it receives a written
request from the faculty member for
good cause
• The hearing committee will
endeavor
d
tto complete
l t th
the h
hearing
i
within 90 calendar days except
under unusual circumstances
• University breaks
• Difficulties assembling the committee
• The hearing will be closed to the
public unless the faculty member
and committee agree it will be open
Rules of the Hearing
Facultyy Rights
g
and
Responsibilities
• Right to:
• Counsel
C
l
• Present testimony of
witnesses and other
evidence
Universityy Rights
g
and
Responsibilities
• Keep a written transcript of all
proceedings
• provide a copy to the faculty
member at university expense
upon request
• Chief Academic Officer or
designee, and/or counsel may:
• Examine all documents and
other adverse demonstrative
evidence
• Make an argument
• Present testimony of witnesses
and other evidence
• Examine all documents
• Make arguments
Burden of Proof
• The University has the
burden of proof
• The standard is “clear
clear
and convincing”
• It means the trier of fact
must be persuaded by the
evidence that it is highly
probable that the claim or
affirmative defense is true
true.
• a heavier burden than the
preponderance of the
evidence standard but less
than beyond a reasonable
doubt
Decisions
• The committee
decision will be based
solelyy on the evidence
presented at the
hearing
• The committee shall
make a written
recommendation
regarding its decision
to the Chancellor
within 14 calendar
days after the hearing
or after the full
transcript is received,
whichever is later
The Chancellor.
Chancellor BOT
BOT, and BOG
Chancellor
• If the chancellor concurs
with a decision favorable to
the faculty member, that
decision is final
• If the chancellor declines to
accept a favorable
recommendation or concurs
with a recommendation
unfavorable to the faculty
member,
e be , tthe
e faculty
acu ty member
e be
may appeal
Appeals
• Board of Trustees
• Appeal shall be transmitted through the
chancellor within 14 calendar days after
receiving the chancellor’s decision
• Heard by the full board or its delegated
group of at least three members
• Written transcript is the basis. Witnesses
can be heard.
• Board of Governors
• Trustee decisions are final unless faculty
member asserts provisions of the Code of
the University of North Carolina have been
violated
i l t d
• 14 days after receiving the Trustee decision
is the calendar on appeals
• Appeal must be written
• Appeals must be done by certified mail or
return receipt through the President of UNC
SECTION 605:
Termination of Faculty Employment
Facultyy Members with Tenure mayy be
terminated under the following conditions:
• The demonstration of
bona fide institutional
financial exigency
• Major curtailment or
elimination of a
teaching, research, or
public service p
p
program
g
Who Declares
• The Chancellor shall have the responsibility
p
y for
determining if financial exigency exists or whether there
shall be a major curtailment of a teaching, research or
public service program
The Process of Consultation
• This determination will be in consultation with campus
p
administrative officers
• It should include the advice and recommendations of academic
administrative officers AND
• faculties of the departments or other units that might be affected
• This determination MUST be approved by the President
and the Board of Governors
When Terminating Faculty
• In terminating a faculty member’s appointment, the Chancellor
MUST give
i consideration
id ti tto
• tenure status
• years of service
• other relevant factors
• Primary consideration shall be the maintenance of a sound and
balanced educational p
program
g
consistent with the functions
and responsibilities of the institution
• A faculty member being terminated must receive notice:
• in writing
• that provide a statement of the conditions that require termination
• generally describing the procedures followed in making the decision
• disclosing pertinent financial and other data forming the basis of the
decision
Timely Notice
• In cases of major
curtailment of a
teaching, research, or
public-service program:
• tenured faculty
f
shall be
given NOT LESS than 12
months notice
• faculty who do not have
tenure are subject to
Section 604 A(1)
• In cases of financial
exigency:
• The institution will make
every reasonable effort to
give the same notice
Replacement
• For two y
years after the termination date of a facultyy
member for financial exigency or major curtailment, that
person MUST be offered the position if it is reopened.
• That offer MUST be made by a method of delivery that
requires a signature
• The faculty member will have 30 days to accept or reject
the offer
Faculty Rights
• Faculty are entitled to
a fair hearing
• A reconsideration
• When requested by
the faculty member,
the institution shall
give
i reasonable
bl
assistance in finding
other employment
procedure must be in
place
l
ffor faculty
f
lt who
h
allege the decision to
terminate is arbitraryy or • All decisions mayy be
capricious
appealed to the Board
of Trustees of the
constituent institution
Arbitrary and Capricious
• A decision is arbitrary
y and capricious
p
if:
• the person or persons making the decision fail to use reasonable
diligence to determine facts necessary to the decision
• there is a failure to give proper consideration to facts relevant to the
decision
• if the bases of the action rest on conclusions that reasonable
persons considering the facts would not reach
SECTION 604:
Appeals of Nonreappointment Decisions
Training
The hearings
g on nonreappointment
pp
bring
g together
g
complex
p
issues of fact, policy, and law. Campuses therefore,
should:
• Provide appropriate training for the faculty committee members
members,
relevant administrators, and aggrieved faculty members
• Allow the faculty governing body to extend the length of service of
pp p
y trained committee chairs to assure the skilled handling
g of
appropriately
a hearing
• Determine if faculty members can have an attorney present and if that
attorney can actively participate in the hearing
• If an attorney is allowed to actively participate, the campus should provide
legal counsel for the respondent administrator
Nonreappointment Notice Requirements
For ranks of instructor,
instructor assistant professor
professor, associate
professor, or professor
• The decision not to reappoint a faculty member includes
provisions for timely notice (UNC Policy Manual 100.1)
• during the first year of service at the institution, the faculty member
shall be given not less than 90 days notice before the employment
contract expires;
• during the second year of continuous service at the institution, the
y member shall be g
given not less than 180 calendar days
y
faculty
notice before the employment contract expires
• after two or more y
years of continual service at the institution, the
faculty member shall be given not less than 12 months notice
before the employment contract expires
Notice in Writing
The notice of reappointment
pp
OR nonreappointment
pp
must
be in writing.
If the decision is not to reappoint, failure to give timely
notice shall obligate the chancellor to offer a terminal
appointment of one academic year
Grounds to Challenge Nonreappointment
• Review does not reconsider
1.
The exercise byy the faculty
y
member of rights
guaranteed by the First
Amendment of the U.S.
Constitution or Article I of
the N.C. constitution.
2.
The faculty member’s
member s
race, sex, religion, national
origin, age, disability, or
honorable service in the
armed services of the U
U.S.
S
3.
Personal malice
professional judgments made
for permissible reasons
• The
Th basis
b i ffor a d
decision
i i nott
to reappoint a faculty
member cannot be made for
one of the three
impermissible reasons.
The First Amendment and Academic
Freedom
• The right to free speech and academic
freedom are related concepts
• AAUP 1940 Statement of Principles on
Academic Freedom and Tenure
• Teachers are entitled to full freedom in
research and in the publication of the results,
subject to the adequate performance of their
other academic duties; but research for
pecuniary return should be based upon an
understanding
g with the authorities of the
institution.
• Teachers are entitled to freedom in the
classroom in discussing their subject
subject, but they
should be careful not to introduce into their
teaching controversial matter which has no
relation to their subject. Limitations of
academic freedom because of religious or
other aims of the institution should be clearly
stated in writing at the time of the
appointment.
• College and university teachers are citizens,
members of a learned profession, and officers
of an educational institution. When they speak
or write as citizens,
citizens they should be free from
institutional censorship or discipline, but their
special position in the community imposes
special obligations. As scholars and
educational officers, they should remember
that the public may judge their profession and
their institution by their utterances.
utterances Hence
they should at all times be accurate, should
exercise appropriate restraint, should show
respect for the opinions of others, and should
make every effort to indicate that they are not
speaking for the institution.
Employment Discrimination
•
Discriminatory practices include bias in hiring, promotion, job
assignment, termination, compensation, retaliation, and various types of
harassment.
•
The University of North Carolina includes honorable military service
•
Discrimination on this basis not related to nonreappointment decisions
should be the subject of action according to campus policies
It is illegal to discriminate in any aspect of employment, including:
•
hiring and firing;
•
compensation, assignment, or classification of employees;
•
transfer, promotion, layoff, or recall;
•
job advertisements;
•
recruitment;
•
testing;
•
use of company facilities;
•
training and apprenticeship programs;
•
fringe benefits;
•
pay, retirement plans, and disability leave; or
•
other terms and conditions of employment.
Discriminatory practices under these laws also include:
•
harassment on the basis of race, color, religion, sex, national origin,
disability, genetic information, or age;
•
retaliation against an individual for filing a charge of discrimination,
participating in an investigation, or opposing discriminatory practices;
•
employment decisions based on stereotypes or assumptions about the
abilities, traits, or p
performance of individuals of a certain sex, race, age,
g
religion, or ethnic group, or individuals with disabilities, or based on
myths or assumptions about an individual's genetic information; and
•
denying employment opportunities to a person because of marriage to,
or association with, an individual of a particular race, religion, national
origin, or an individual with a disability. Title VII also prohibits
discrimination because of participation in schools or places of worship
associated with a p
particular racial,, ethnic,, or religious
g
group.
g p
Personal Malice
• Dislike,, animosity,
y, ill-will based on p
personal
characteristics, traits, or circumstances of an individual
that are nor relevant to valid University decision making.
• Any significant degree of negative feeling toward a
candidate based on irrelevant personal factors, regardless
of the intensity of that feeling, is an improper basis for
making decisions.
Faculty Committee
• Resolving a faculty
member’s claim of an
improper decision not to
reappoint
pp
MUST BE:
• before a duly constituted
faculty committee
• when sufficient allegations
are made
• The faculty committee is
responsible for:
• receiving relevant evidence
• creating a clear, permanent
record of the evidence
• making findings of fact
• providing advice to the
chancellor on the merit of
the facultyy member’s
allegations
Time Limit
• The faculty
y member has “a
reasonable time” of no less
than fourteen (14) calendar
days after receiving notice of
nonreappointment to request
a review
• Campus policies will vary on
the time, but must be outlined
clearly (and should be noted
in the notice of
nonreappointment)
• Once the window passes, the
decision is final
• The chancellor must p
provide
a timely hearing when
requested
Bases of Decision
• The committee shall
consider ONLY
evidence p
presented at
the hearing
• The committee shall
determine what
evidence it allows (oral
and written)
• The burden of proof is
on the faculty member
• The standard is by
preponderance of the
evidence
Purpose of the Review
• To determine whether
the decision was
based on
considerations that
The Code defines as
impermissible
• To determine whether
the procedures
followed to reach the
decision materially
deviated from
prescribed procedures
such that doubt is cast
on integrity of the
decision not to
reappoint
Material Procedural Flaw
Keyy Questions:
Q
• Did the decision maker(s) breach procedural rules?
• Did the decision maker(s) act on wrong principles?
• Did the decision maker(s) overlook some material fact or facts?
• Did the decision maker(s) reach a clearly wrong conclusion?
Preserving Evidence
• All testimony
y and other evidence must be p
preserved for
possible subsequent review
• A professional court reporter, or a similarly reliable means
of record, is recommended to enable a verbatim transcript
• Only the immediate parties to a controversy, the
responsible administrators and attorneys, and the
members of the University governing boards and their
committees and staffs, shall have access
The Chancellor
Chancellor’s
s Decision
• The Chancellor must base his or her decision on:
• review
i
off the
th record
d evidence
id
ffrom th
the h
hearing
i
• review of the report of the faculty hearing committee
• The Chancellor should g
give appropriate
pp p
deference to the advice of the
faculty committee
• The final campus-based decision is that of the chancellor
• If the Chancellor agrees with the faculty committee in favor of the
faculty member, the decision will be final
• If the Chancellor agrees with a recommendation of the faculty
committee that does not favor the faculty member, or offers an
unfavorable recommendation separate from the faculty committee’s
recommendation, the faculty member can appeal to the Board of
Governors
Board of Governors Review
• Must be filed within 14 calendar days of receiving the Chancellor’s
decision
• It must be filed by certified mail with return receipt or other method
providing
p
gp
proof of delivery
y
• It must include the basis for the appeal
• Three standards for appeal:
• Campus-based process for reviewing the decision was procedurally flawed
• That the committee or chancellor erred in determining if there was an
impermissible
p
reason for nonreappointment
pp
• A controlling law or University policy was disregarded, misinterpreted, or
misapplied to the facts of the case
• The decision of the Board of Governors is final
Procedural Flaws
A facultyy member alleges
g that the p
process followed does
not comport with institutional requirements.
If the Board determines this is correct and that this variation
from process resulted in the faculty member not receiving a
fair review by the chancellor, a remedy on appeal will be
granted.
Typically the result is a new hearing.
Sufficiency of Evidence
• A faculty member may
allege the evidence
pointed to an
impermissible
p
reason
and the decision maker
erred in deciding
otherwise.
• The Board must review
the entire record as well
as any supplemental
evidence from the
Chancellor
• The question is if the
decision reached was
reasonable
• Usually only heard if
there is significant
difference between the
faculty committee and
the chancellor
Applicable Law and/or Policy
• The faculty member
may allege law or
policy
p
y was
disregarded,
misinterpreted, or
misapplied to the facts
of the case
Important Note
• The remedy
y of the Board of Governors is NEVER:
• conferral of tenure
• reappointment
• promotion
SECTION 610
Rights of Special Faculty members
Definition and Terms
• “special”
special faculty
covers:
• visiting faculty
• adjunct faculty
• They have a specific
term of service set out
in a letter of
appointment
• lecturers
• artists-in-residence
• writers-in-residence
• other positions
considered “special”
• The term concludes at
that time and the letter
of appointment is full
and timely notice of
non-renewall
Rights
Section 607
• During the term of
appointment,
i t
t special
i l
faculty members are
entitled to seek recourse
under the conditions of
section 607
Section 604
• Whether paid or unpaid,
special
i l ffaculty
lt members
b
do not have rights under
Section 607