Procedures of the Faculty Rights Board for Hearing Appeals From Administrative Actions

I. Introduction

A. Jurisdiction

The Faculty Rights Board (Board) has jurisdiction, as provided in Article XIII, section 3, of the University Senate Code, to consider disputes brought by faculty members alleging that an administrative action violates faculty rights as enumerated in Article III of the Code of Faculty Rights, Responsibilities and Conduct (Faculty Code).  (FSRR 7.3.1)  When a dispute concerns a denial of promotion and tenure, it is governed by FSRR Article VI. Section 8. 

B. Nature and Scope of Procedures

1. The Board’s written procedures, which appear below, govern disputes within the Board’s jurisdiction, except for appeals from denial of promotion and tenure.  When a dispute concerns a denial of promotion and tenure, it is governed by FSRR Article VI, section 8.  (FSRR 7.3.2)

2. Through its procedures, the Board provides for timely disposition of disputes, although it may extend deadlines in particular cases for good cause.  (FSRR 7.3.1)

3. Because the Board’s procedures must be available publicly in written form, they are to be maintained in the University of Kansas Policy Library in the same manner as the University’s governance policies and rules and regulations.  (FSRR 7.3.2.a.)

C. Confidentiality

Confidential treatment shall be given to matters that are at issue in a dispute.  Before a hearing, the Board members may not discuss the facts or issues in the case with a party, unless the Chair first notifies the opposing party and provides an opportunity for the opposing party to be present.  In addition, Board members may not discuss the facts or issues in the case with any non-party except to the extent that doing so may be authorized by applicable rules and regulations and with notice to both parties prior to any discussion.  (FSRR 7.3.2.g.)

D. Conflicts of Interest

Prior to participating in the consideration of a dispute, members of the Faculty Rights Board must affirm that they have no conflict of interest, including any prior involvement in the dispute.  Faculty Rights Board members must also affirm that they will act fairly and impartially when participating in the consideration of a dispute. 

E. Role of the Chair

To the extent that the Chair of the Board makes decisions under these procedures, they are to do so in consultation with other members of the Board.

 II. Informal Settlement, Including Mediation

A. Alternative Resolution

Members of the University community are encouraged to resolve disputes informally if possible.  The means of resolving disputes informally within the University community include mediation; the Office of University Governance and the Office of the University Ombuds maintain a list of mediators within the University and can provide assistance in exploring informal dispute resolution opportunities.  However, in accordance with the guidance provided by the Office for Civil Rights, mediation shall not occur in cases alleging sexual harassment.  A faculty member also may request conflict resolution services from the University’s Department of Human Resources.  

B. Process

1. Before or after filing a dispute, the complainant may engage with the respondent in exploring alternative means for resolving their dispute.  They may agree to an informal settlement, including mediation.  (FSRR 7.3.2.b.)

2. If the complainant and the respondent undertake to resolve the dispute informally, they are responsible for taking steps they deem necessary to protect their own rights.  At the same time, the complainant should keep the Board Chair informed about the effort to resolve the dispute informally.

3. Time limits shall be suspended during the mediation process; that is, the time from the initiation of the mediation process until it is terminated by the mediator or either party shall not count against any time limit contained in these procedures. 

III. Initiation of Dispute

A. Written Statement

1. To initiate a dispute, the complainant must state in writing a summary of the dispute and the alleged violation of specific rights as enumerated in Article III of the Code of Faculty Rights, Responsibilities and Conduct.  Administrative authorities include tribunals formed within the University to hear and rule on faculty grievances. (FSRR 7.3.2 c.)

2. The dispute must:

a. identify the administrative authority that took the action, whether it is a University official or an administrator or tribunal that allegedly violated faculty rights;

b. identify the disciplinary or other administrative action that allegedly violated faculty rights, or the action by a tribunal - such as a hearing panel formed by an academic unit—that allegedly violated faculty rights;

c. assert that a violation of faculty rights occurred because of the administrative action and specify which rights are alleged to have been violated;

d. assert facts that underlie the dispute and describe the circumstances that led up to the alleged violation of faculty rights;

e. attach any documents that relate to the administrative action being challenged or that support the alleged violations asserted in the dispute; and

f. identify any witnesses who the faculty member knows possess information that support the alleged violations, providing a statement of each witness’s information.       

B. Time Limit

Generally, the complainant must file the written statement with the University Governance Office within thirty (30)  days of the administrative action that is the subject of the dispute.  (FSRR 7.3.1.)  The Chair may extend these times limits upon the request of the complainant if the Chair determines a valid basis for the extension (FSRR 7.3.1).  However, a different time limit applies for disputes of administrative actions involving sexual harassment of a student by a faculty member.  In such cases, the United States Department of Education Office of Civil Rights has mandated that universities must fully resolve such complaints timely not to exceed sixty (60) days of first learning of the allegation(s) absent compelling circumstances.  Accordingly, in such cases a faculty member’s dispute must be received within seven (7) days of the administrative action being disputed.

In appeals from notice of non-reappointment, the complainant must file the appeal with the University Governance Office within fourteen (14) days of receiving the notification. The Board’s recommendation on any such appeal shall be forwarded to the Chancellor no later than April 30 each year.

 

C. Burden of Establishing Jurisdiction for Dispute

The burden is on the complainant to demonstrate in the dispute that sufficient grounds exist to invoke the jurisdiction of the Faculty Rights Board.  Conclusory statements that a faculty member’s rights have been violated are insufficient.  Instead the dispute must provide sufficient factual information to demonstrate the alleged violations and claimed prejudice resulting from the alleged violations.

D. Additional Information

On behalf of the Board, the Chair may determine that a complainant’s written statement is not sufficient, such as in alleging violations or making factual assertions.  In that event, the Chair may request additional information from the complainant, such as specification of the grounds for the dispute.  The complainant must respond to a request for additional information within seven (7) days.  (FSRR 7.3.2 d.)

E. Copies

Upon receipt of a dispute, the chair will verify that the University Governance Office has provided a copy of the dispute and any documents submitted with the dispute to the respondent.  The notification to the respondent will include the deadline to file a response.

IV. Response by Other Party

A. Timing of Response

The opposing party shall have a reasonable opportunity to respond.  (FSRR 7.3.2 c.)  Following receipt of the dispute, the opposing party generally shall have fourteen (14) days to file a written response in the Office of University Governance.  However, in disputes from administrative actions involving sexual harassment of a student, the opposing party shall have seven (7) days to file a written response with the Office of University Governance.  The Chair may extend these time limits upon the request of the respondent if the Chair determines that additional time is needed to provide a fair opportunity to respond to the allegations in the dispute (FSRR 7.3.1)

B. Content

1. The written response should indicate whether the respondent admits or denies the allegations and factual assertions in a dispute, provide any additional facts or relevant information, and identify any defenses to the alleged violations.

2. The response should identify the evidence and witnesses relied on by the respondent and include copies of any relevant additional documentation omitted from the initial dispute.

3. The respondent must provide a copy of the response, along with supporting documentation, to the University Governance Office by the deadline requested.  The University Governance Office will provide a copy of the response and any documents submitted with the response to the complainant.

V. Actions Following Receipt of Dispute and Response

A. Information

On behalf of the Board, the Chair may request additional information from either party for a fair and accurate resolution of the dispute.  The Chair will provide notice to the parties of any such request and provide to them copies of, or access to, any information received.

B. Dismissal

The Board may dismiss a dispute in accordance with the grounds and requirements listed in USRR 6.5.3 for dismissal of grievances by the Judicial Board.  (FSRR 7.3.2.d.)  Like the Chair of the Judicial Board under USRR 6.5.3, the Chair of the Faculty Rights Board, after consulting with members of the Board, may dismiss a dispute without a hearing.  A dispute that does not meet requirements set forth in section III. Initiation of Dispute, above, is a type that may be dismissed without a hearing.  The Faculty Rights Board also may dismiss a dispute if the complainant fails to provide information requested by the Board within seven (7) days of the Board’s request.  (FSRR 7.3.2.d.) 

C. Disposition Without A Hearing

On review of the written information filed in the dispute, the Board may decide that it possesses sufficient information in the written record to make a decision without a hearing.  In such disputes, the Board generally will issue its decision and recommendations within forty-five (45) days of the dispute being filed absent good cause for an extension of time.  However, in appeals from a notice of non-reappointment the Board’s decision and recommendation will be submitted to the Chancellor by April 30, and in disputes from administrative actions involving sexual harassment of a student by a faculty member, the Board’s decision and recommendation will be issued within twenty-one (21) days of the appeal being filed.  

D. Hearing

The Board may initiate a hearing, if one is deemed necessary, within forty-five (45) days of the dispute being filed absent good cause for an extension of time.  (FSRR 7.3.2 e.) 

However, if the dispute is from an administrative action involving sexual harassment of a student, then the hearing will be scheduled within such time as to allow for the Board to issue its decision and recommendation within twenty-one (21) days of the dispute being filed; and if the appeal involves a notice of non-reappointment, then the hearing will be schedule within such time as to allow for the Board to issue its decision and recommendation by April 30.

VI. Hearing

A. Purpose

If the Board has determined that the allegations in the dispute are sufficient and that a hearing consequently is warranted, the hearing shall serve as a fair opportunity for the complainant and opposing parties to present their cases and arguments before the Board.  (FSRR 7.3.2 d.)  The Board’s notice to the parties scheduling a hearing shall identify for the parties the specific questions or issues raised in the dispute which the Board has determined are not sufficiently addressed in the written record and on which the Board wishes to hear testimony or evidence at hearing.

B. Conference

The Chair may arrange a conference with all parties to discuss the handling of the case, preliminary evidentiary or procedural issues, and the scheduling and conduct of the hearing.

C. Rulings on Conduct of Hearing

Before a hearing, the Chair may make determinations or rulings as appropriate to promote the fair and efficient conduct of the hearing, including the exclusion of issues, arguments, or evidence that is not relevant or material to the case.  The Chair may direct that testimony be limited after determining the extent to which the written record addresses the issues in the dispute and are not materially in dispute.  Before excluding any issues, arguments, testimony or evidence, the Chair shall afford the parties an opportunity to object and state their reasons for objecting in writing.  These pre-hearing matters shall be ruled on and determined within fourteen (14) days after the Board has received the opposing party’s response to the dispute, unless the Chair finds that good cause exists to extend the time.  Pre-hearing matters and extensions of the time limit for resolving them will not change the time limits for concluding disputes stated in section III.B. of these procedures.

D. Scope

At a hearing, the evidence and testimony considered by the Board shall be limited to how the administrative authority’s action violated a faculty member’s rights as enumerated in Article III of the Faculty Code.  (FSRR 7.3.2 d.) 

The Board shall not conduct a hearing to review factual issues that are not disputed or are not material to the dispute.  (FSRR 7.3.2 d.)

E. Proof

At a hearing, the burden is on the complainant to prove by a preponderance of the evidence that an administrative authority took an administrative action that caused  a violation of established faculty rights as enumerated in Article III of the Code of Faculty Rights, Responsibilities and Conduct.

F. Closed and Open Hearings

1. A hearing shall be closed to the public if it requires consideration of confidential personnel matters.  (FSRR 7.3.2 h.)  The Board may make an exception, however, if the individual or individuals whose confidential information is involved request in writing that the hearing be open to the public. (FSRR 7.3.2 h.) 

2. A party who prefers that the hearing be open must give written notice to the Chair and the opposing party when the Chair contacts the parties to schedule the hearing.  The Chair may allow the parties up to five (5) days to reach agreement on whether the hearing will be open.  If either party objects to an open hearing, the hearing will remain closed.  If they agree that the hearing will be open, their agreement must be in writing, and the Chair must enter it into the written record of the dispute.

G. Scheduling and Conduct of Hearings

1. The Chair will schedule the hearing in consultation with the parties and the other members of the Board, allowing a reasonable opportunity for the parties to be present and to prepare for the hearing.  The burden is on the parties to accommodate their schedules if necessary to find a time for the hearing that allows all members of the Board to attend. The hearing shall begin within forty-five (45) days of the date that the dispute was filed, unless the Chair extends the time for good cause and provides reasons for the delay of the hearing to the parties.  

2. If evidence is to be presented, the parties or their representatives shall have the opportunity to present the testimony of witnesses and to cross examine witnesses presented by the other parties.  The formal rules of evidence do not apply, but the Chair may exclude evidence or testimony if it is irrelevant or otherwise improper.  Witnesses will swear or affirm their testimony and providing false testimony to the Board is a form of academic and professional misconduct that is subject to sanction.  Whether or not evidence is to be presented, the parties or their representatives will also be afforded the opportunity to argue their positions to the Board

3. Although the parties have primary responsibility for questioning witnesses and presenting arguments, the members of the Board may ask questions of witnesses or parties. 

4. During a hearing, the Chair has the authority to make necessary rulings for the conduct of the proceedings, including the exclusion of evidence or arguments, the impositions of reasonable time limits, and similar action.  When necessary, the Chair may exclude any person, including a party, if he or she continues to disrupt the hearing after having been warned to cease disruptive behavior.

H. Electronic Recording

A hearing shall be electronically recorded.  (FSRR 7.3.2 i.)   The recording shall be made by a tape recorder or other device that will provide a true and accurate record, a copy of which shall be provided to either party upon payment by the party of the costs of reproduction.

VII. Post-Hearing

A. Confidentiality

After a hearing, the Board will deliberate confidentially.

B. Deliberation and Vote

After a hearing, the Board shall deliberate and determine, by majority vote, whether the complainant has shown by a preponderance of the evidence that the administrative action adversely affected an established right(s).  (FSRR 7.3.3.1)

C. Decision

1. A written decision stating the conclusions of the Board and the reasons for them, as well as any recommended actions to be taken, shall be provided to the parties, the Provost, the Chancellor, and any other administrative officials involved in the case no later than fourteen (14) days after the hearing is completed. (FSRR 7.3.3.1)

2. The Board’s written decision shall include specific findings of fact regarding contested factual issues, explain how the Board interpreted and applied relevant laws, regulations, rules, or policies or, as applicable, and articulate the basis for its conclusions.  The decision shall also include recommendations concerning appropriate actions to be taken in light of its findings and conclusions, which may be addressed to the parties or other responsible individuals.

3. The decision of the Board constitutes a recommendation to the Chancellor, who has the final authority and responsibility for personnel decisions within the University, or to the Provost when the Chancellor has delegated such authority to the Provost.  The Chair of the Board may respond to inquiries from the Chancellor or Provost to clarify the basis or intent of the Board’s decision and recommendations.  After review of the recommendation and supporting documents, the Chancellor, Provost, or other administrative official shall provide timely written notice of the final decision to the parties and to the President of the Faculty Senate and the Chair of the Board. There is no appeal within the University from the decision of the Chancellor.  (FSRR 7.3.3.2)

4. A copy of the written decision will be provided to the parties, the Chancellor, the Provost, and any other administrative officials involved in the case.

VIII. General Provisions

A. Assistance

Members of the Board will maintain the confidentiality of the proceedings and records unless the parties waive confidentiality.  Board members, however, may obtain confidential assistance from the administrative staff of the Office of University Governance.  Hearings involving confidential personnel matters or other matters required to be kept confidential by law or University regulation, rule, or policy are closed to the public. 

B. Construction and Application

These procedures will be construed and applied in accordance with the procedural guarantees specified in Article XII, section 2 of the University Senate Code and relevant provisions of University Senate Rules and Regulations (USRR) and Faculty Senate Rules and Regulations (FSRR).