Hearing for Discharge or Imposition of Serious Sanctions
Unlike hearings in non-reappointment or non-promotion cases, the primary purpose of the hearing in a discharge or serious sanction case is to give the Faculty Member (hereafter, Petitioner the opportunity to answer the contentions made by the dean and/or the Provost (hereafter, “Administration”) to terminate the Faculty Member’s employment or impose other serious sanctions. Additionally the purpose of the hearing is to create a record of testimony and documentary evidence for review by the parties, the Board of Trustees and/or the Board of Governors, should the Faculty Member seek further review of the discharge or imposition of other serious sanctions.
The burden of proof in discharge and other serious sanctions cases rests with the Administration and not with the Faculty Member.
The standard of proof is proof by clear and convincing evidence. This means that the Administration must prove that the reasons for discharge are more highly probable than not. The Committee determines whether this burden of proof has been met by weighing all of the evidence and the demeanor and credibility of the witnesses, in the light of experience and common sense judgments.
Upon receipt of a request for hearing, the Committee Chair shall convene the committee for the purpose of reviewing the Administration’s reason for discharge and determining whether a hearing shall be granted. A hearing shall be granted, if the Committee determines that the reasons articulated, if established, constitute grounds for discharge or other serious sanction. If the Committee determines that the reasons for discharge, even if established would not establish incompetence, neglect of duty, or misconduct as stated above, the Committee shall notify the Administration and Faculty Member and the matter is concluded. If the Chancellor disagrees with the committee’s determination, he/she will send it back for a hearing. If the reasons articulated for discharge or other serious sanctions are determined to constitute incompetence, neglect, or misconduct, if proved, a hearing shall be scheduled within 30 calendar days, so as to give the Faculty Member time to prepare a defense. The Committee Chair may seek agreement of the Administration and Faculty Member to extend these time limits if the limits are impractical.
When the Committee approves a hearing, the full Committee may hear the case or appoint a hearing panel of not less than five, who will decide the case on behalf of the full Committee. All members of the hearing panel must be free of bias or conflict of interest. The panel shall select its Chair if the elected Chair of the full Committee cannot serve on the panel. The Committee shall notify the Administration and Faculty Member of the intent to conduct a hearing and the membership of the panel.
The Committee chair through the Office of Legal Affairs will arrange for the availability of a court reporter. A copy of the Transcript of the hearing shall be provided to the Administration and to the Respondent, if requested, at the expense of the university.
The hearing shall be conducted informally and in private. Only the members of the committee, the Faculty Member, the Faculty Member’s attorney, if any, the provost, the provost’s designee, the attorney for the provost or provost’s designee, and such witnesses as may be called may attend. Witnesses shall remain outside the hearing chamber except when testifying.
In the spirit of avoiding unfair surprise, and to facilitate the hearing process, the parties shall provide a list of witnesses with a short statement as to the testimony of each witness and copies of exhibits they intend to introduce at the hearing, to each other, and to the Committee chair, at least three days prior to the date set for the beginning of the hearing. Copies of exhibits should also be provided to each Committee member on the day of the hearing. . The failure to list a witness, or to provide advance copies of all exhibits, will not preclude a party from calling the witness or from introducing a document. However, the opposing party may be granted a temporary adjournment of the hearing if the Committee deems a delay necessary in order for that party to adequately respond to the new evidence. It is important to note that the Committee has no authority to compel the attendance of witnesses. However, the chair may request that the chancellor ensure that all witnesses who are employees of the University are given permission to attend the hearing.
1. Call to Order-Quorum
The chair of the hearing panel will call the hearing to order, determine any objection to the
panel, and explain procedures.
2. Challenge to Committee Membership
Hearing Committee members who: (1) hold an appointment in the Faculty Member's
department or school (in schools that have no departments) (2) will testify as witnesses, or (3) have any other conflict of interest are disqualified from participating on the hearing panel.
Following the call to order, each party will be given an opportunity challenge any Committee member's qualifications to serve. The Committee (excluding the Committee member under challenge) will decide whether to grant or deny that challenge based on a majority vote.
3. Court Reporter Swears Witnesses
The court reporter shall swear in all witnesses at the beginning of the hearing or as witnesses appear to give testimony.
4. Opening Remarks
Starting with the Administration, each party will be given the opportunity to make opening remarks limited to five minutes each. The purpose of opening remarks is to orient the Committee to the nature of the case and to the facts the party intends to establish. Opening remarks are not evidence.
5. Administration's Case in Chief
At the conclusion of opening remarks, the Administration will present evidence (witnesses, documents, his or her own testimony, etc.) in support of his or her allegations. All witnesses may be questioned by members of the Committee, by the Administration and Faculty Member, and by the attorneys representing the Administration and Faculty Member, if any. The Administration will be limited to a total of three hours to present its case. The Administration may reserve a portion of those three hours for rebuttal at the conclusion of Faculty Member's evidence. If the Administration wishes to reserve rebuttal time, Administration must notify the Committee of that fact at the beginning of the hearing. If the administration believes additional time is needed to present its case, a request for more time should be made to the hearing committee. The hearing committee must consider all relevant factors and determine how much additional time, if any, will be allowed.
6. Determination of Whether a Prima Facie Case Has Been Presented
After the Administration concludes his or her presentation, the Committee will recess the hearing and withdraw into closed session to determine whether Administration has established a prima facie case. A prima facie case is established if the Administration's evidence, standing without rebuttal and with the most reasonably favorable inferences to be drawn from them, proves his or her contention. The Committee's decision will be by majority vote. If the Committee determines that the Administration has not established a prima facie case, the chair will orally notify the parties of that decision and thereby end the hearing. That decision results in a recommendation against the discharge or other serious sanction decision and will be confirmed in writing to both parties. If the Chancellor disagrees with the committee’s determination, he/she will send it back for a full hearing. If the Committee determines that the Administration has established a prima facie case, it will resume the hearing.
7. Faculty Member's Case
The Faculty Member may present evidence (witnesses, documents, his or her own testimony, etc.) in support of his or her allegations. All witnesses may be questioned by members of the Committee, by the Faculty Member and Administration, and by the attorney representatives of the Faculty Member and Administration, if any. Except under extraordinary circumstances, Faculty Member will be limited to a total of three hours to present his or her case. If a faculty member believes that he/she needs additional time, a request for more time should be made to the hearing committee. The hearing committee must consider all relevant factors and determine how much additional time, if any, the faculty member will be allowed.
8. Administration's Case in Rebuttal
At the close of the Faculty Member's case, the Administration or attorney representative may submit evidence limited to rebuttal of Faculty Member's evidence.
9. Closing Remarks
At the conclusion of all the evidence, Administration or attorney representative of Administration may make closing remarks to the Committee, followed by the closing remarks of Faculty Member or attorney representative of Faculty member. Since Administration bears the burden of proof, Administration may also make brief final remarks in response to Faculty Member's closing. Closing remarks shall not exceed fifteen minutes per side.
10. Committee Deliberations and Decision After closing remarks are concluded, the chair will close the hearing and the Committee will withdraw into closed session. If the Committee wants to read the transcript, the chair will adjourn the hearing and reconvene the Committee after the Transcript is available, otherwise, the Committee may begin its deliberations immediately. The Committee's decision will be by majority vote. The Administration bears the burden of proving, by a preponderance of the evidence, that the discharge or other serious sanctions meets the criteria of "Purpose of the Hearing" herein.
If the Committee decides that the Administration has not established his or her case, it will so notify Administration and Faculty Member by a simple, unelaborated written statement of its findings and decision. If the Committee determines that the Administration has established his or her case, it will so notify the Administration and Faculty Member by a written statement of its findings and decision.
The chair of the hearing panel shall assemble the case file consisting of all documents and correspondence received, sent or accepted by the panel as part of its consideration of the case, including, the Administration’s initial statement, and documents introduced as evidence. The Chair will deliver the case file to General Counsel within 5 Days after all the foregoing procedures are complete. The hearing Transcript shall be provided to General Counsel by the court reporter.
The chancellor shall issue a final written opinion within 30 Days after receiving the hearing documents including the transcript of the hearing. The chancellor’s decision shall be based on the recommendations and evidence received from the hearing committee including the Transcript of the hearing.
A Faculty Member’s appeal on discharge or impositions of serious sanctions is to the chancellor, and from the chancellor to the Board of Trustees. This decision shall be final except that the Faculty Member may, within 14 calendar days after receiving the Board of Trustees decision, file by formal notice, a written petition for review with the Board of Governors if the Faculty Member alleges that one or more provisions of The Code of the University of North Carolina have been violated. Any such petition to the Board of Governors shall be transmitted through the UNC President. The Board of Governors shall grant or deny the petition, or take such other action as it deems advisable. The Board of Governors shall notify the Faculty Member whether it will review the petition.
An appeal in a discharge or imposition of serious sanctions case may be made by sending written notice of appeal to the Board of Trustees c/o WSSU Chancellor, 200 Blair Hall, Winston-Salem State University, Winston-Salem, NC 27110. Notice must be sent within 14 calendar days of receipt of a final agency decision from the chancellor.
If Appeal to the Board of Governors is allowed an appeal is made by sending written notice of appeal to the Board of Governors c/o the UNC President, PO Box 2688, 910 Raleigh Road, Chapel Hill, NC 27515. Notice must be sent within 14 calendar days of receipt of a final opinion from the chancellor.
A Transcript made of each hearing before a panel shall be preserved by the Office of Legal Affairs so long as the possibility of appeal including the filing of a lawsuit remains open. The Transcript or other written record remains the property of the University. The preservation of evidence in a form that will permit later review is mandated by the Board of Governors in the Code.
