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Dismissal of Tenured Faculty for Cause

IV. ACADEMIC HUMAN RESOURCES POLICIES (Cont.)

DISMISSAL OF TENURED FACULTY FOR CAUSE¹

The following policy was approved by the Board of Trustees on March 16, 1967 and revised on May 5, 2006.

Preamble

The University is a community of scholars dedicated to the advancement of knowledge. Among the functions of a University is the establishment of a proper intellectual integrity among the faculty, between the faculty and the students, and between the faculty and the national and international academic community. This intellectual integrity is fostered by the creation of an environment of personal interaction and mutual trust whereby its members are mindful of their responsibilities to maintain standards of competence, and a proper attitude of objectivity, industry, and cooperation with their associates within and outside the University community. However, if the community is to be sustained it is necessary for it to take action when commonly held standards of conduct are violated. Thus, disciplinary action up to and including dismissal may be undertaken for cause, with dismissal being reserved for the most serious of cases. Dismissal or the threat of dismissal may not be used to restrain faculty members in their exercise of academic freedom.

Grounds for Dismissal

A tenured faculty member may be dismissed for cause, including but not limited to: (1) intellectual dishonesty; (2) acts of discrimination, including harassment, prohibited by law or University policy; (3) acts of moral turpitude; (4) theft or misuse of University property; (5) incompetence; (6) refusal to perform reasonable assigned duties; (7) use of professional authority to exploit others; (8) violation of University policy substantially related to performance of faculty responsibilities, and (9) conviction of violation(s) of law(s) which are substantially related to the fitness of faculty members to engage in teaching, research, service/outreach, and/or administration. 1, 2

If dismissal proceedings are initiated against a tenured faculty member and result in a finding of cause, dismissal or disciplinary action other than dismissal may be recommended and imposed. Disciplinary action other than dismissal may include, but is not limited to, reprimand, suspension with or without pay, reassignment of duties, reduction in appointment, denial of salary increase, mandatory counseling, and/or monitoring of behavior and performance.

I.   INFORMAL RESOLUTION/PRELIMINARY CONFERENCE STAGE.

Dismissal for Cause Review Officer’s Recommendation

A dean or separately reporting director (“charging party”) proposing to initiate dismissal for cause proceedings against a faculty member must file a written request with the Provost that details the reasons for considering dismissal and provides copies of all relevant documentation, including copies of any past disciplinary action or warnings to the faculty member that his/her conduct might lead to dismissal.   

Upon receipt of such a request, the Provost shall notify the faculty member of the request and ask the Dismissal for Cause Review Officer (see Appendix III) to review the matter and to provide a confidential report and recommendation to the Provost as to whether dismissal for cause proceedings should be initiated and, if so, whether the faculty member should be relieved from any or all duties during the proceedings.

The review process is intended to provide an opportunity for informal resolution of the matter. Accordingly, meetings between the faculty member and the Review Officer and between the faculty member and the Provost during the review process will proceed without counsel present. At any stage during the review process, the faculty member may elect to forgo meeting or talking with the Review Officer or the Provost.

The Review Officer shall review the reasons for considering dismissal and the evidence in support of dismissal with the charging party. The Review Officer shall also talk with the charging party, faculty member, and the faculty member’s department chairperson/school director, prior to making a recommendation to the Provost.  

In reaching his/her recommendation, the Review Officer should consider what steps have been taken to achieve informal resolution of the matter; whether, in cases involving a pattern of conduct, the faculty member had any warning that the conduct might lead to dismissal; and whether any measures might be taken to resolve the matter short of instituting dismissal for cause proceedings. The Review Officer’s report and recommendation should be forwarded to the Provost within 30 days3  of the Review Officer’s selection by the President, unless an extension of time is approved by the Provost.

Determination by the Provost

The Provost shall review the report and recommendation of the Review Officer and determine whether the matter is of sufficient seriousness to warrant the initiation of dismissal for cause proceedings.4   In reaching his/her decision, the Provost may discuss the matter with the Review Officer, charging party, and/or faculty member.  

The confidential report and recommendation of the Review Officer is advisory to the Provost5  and shall not be available to either party or become part of the record if dismissal for cause proceedings are instituted. 

Conference with the Faculty Member

If the Provost determines that dismissal for cause proceedings are warranted, he/she shall notify the faculty member and the charging party (the “parties”) of that decision in writing and offer the faculty member an opportunity for a personal meeting. No formal charges shall be filed until 30 days after this notification.  The matter may be resolved informally during this time, including by the faculty member’s resignation.  If the faculty member is not available for a personal meeting during the 30-day period, the Provost may communicate with the faculty member by telephone and/or by correspondence that provides the faculty member with a reasonable opportunity to confer informally with the Provost.

II. MAILING OF NOTICES UNDER THIS POLICY.

Whenever possible, the faculty member shall be sent the notices required by this Policy by certified mail to his/her address of record filed with the University.  However, if delivery by certified mail is not possible or if the faculty member refuses or waives delivery of certified mail, mailing notices to the faculty member at his/her address of record by first class mail will be considered sufficient.  An email will also be sent to the faculty member’s University email address notifying him/her of the fact that a notice required by this Policy has been sent by one of the methods described above.

III.   INITIATION OF FORMAL PROCEEDINGS.

If the Provost determines that the matter is serious enough to warrant initiation of  dismissal for cause proceedings, the Provost shall provide written notice of that determination to the President, along with a recommendation as to whether the faculty member should be relieved from some or all of his/her duties during the dismissal for cause proceedings.  The parties should receive a copy of this notice.  If the President decides to relieve the faculty member from all of his/her duties, the faculty member shall be placed on a leave of absence with pay during the pendency of the dismissal for cause proceedings.

Following written notification by the Provost to the President, the charging party may initiate dismissal for cause proceedings against a faculty member by filing written charges with the President and Chairperson of the University Committee on Faculty Tenure (“UCFT”).  The charges must contain: (1) the allegations; (2) the names of the witnesses, insofar as then known, who will testify in support of the allegations; and (3) the nature of the testimony likely to be presented by each of these witnesses.

The Chairperson of the UCFT shall promptly send a copy of the written charges to the faculty member. 

IV.   MEETINGS BETWEEN THE PRESIDING OFFICER AND THE PARTIES.

As soon as practicable following the filing of formal charges, the Presiding Officer6  shall meet with the parties.  The purposes of such meetings include:

A.  The empaneling of a Hearing Committee (see Appendix I).

B.  Exchange of documents and witness lists between the parties.

C.  Stipulations by the parties on any relevant matters of fact. Any stipulation shall be reduced to writing and signed by both parties and the Presiding Officer.

D.  Rulings by the Presiding Officer on any proposed revisions to the charges that might be offered or requested.

The Presiding Officer may ask legal counsel to attend these meetings.  The Presiding Officer shall arrange that minutes of these meetings are made and included in the complete case record.

V.  THE HEARING.

A.  Service on the Hearing Committee shall be a high priority University responsibility for the duration of the hearing.  Accordingly, administrators of units shall take all reasonable measures to reduce the Hearing Committee members' other responsibilities.  Unit administrators are encouraged to provide additional support (such as graders and graduate assistants) to Hearing Committee members for the duration of their service.

B.  The Secretary for Academic Governance shall make available to the Chairperson of the Hearing Committee any necessary secretarial and clerical assistance.

C.  Legal counsel to the Hearing Committee shall arrange for a full stenographic record to be made of the hearing. If any party requests additional copies of the record or an expedited copy of the record, the additional costs of that request shall be paid by the requesting party.

D.  The Chairperson of the Hearing Committee shall request the presence of any witness or the delivery of any University document germane to the hearing. University administrators are expected to cooperate with such requests.

E.  The Chairperson of the Hearing Committee shall schedule the hearing within a reasonable time after the faculty member is provided notice of the charges against him/her, due consideration being given to the faculty member’s opportunity for the preparation of a defense.

F.  The hearing shall be closed, except that the Hearing Committee may consider a request from the faculty member to open the hearing. If such a request is made, the Hearing Committee shall hear the views of both parties on the question and shall determine whether the hearing sessions are to be open or closed. Regardless of the faculty member’s request, the Chairperson of the Hearing Committee may, in the interest of orderly and equitable proceedings, rule that a given session or portion of a session be closed.  Sessions or portions of sessions that will involve student testimony or testimony that includes personally identifiable student information must be closed.  Sessions that will involve non-student witness testimony may also be closed at the discretion of the Chairperson of the Hearing Committee.

G.  The Chairperson of the Hearing Committee shall conduct the hearing in accordance with the procedures stipulated in Appendix II.

H.  The charging party or his/her representative shall be present at all sessions of the Hearing Committee at which evidence is presented or arguments are heard, and may (1) present evidence, (2) call, examine, and cross-examine witnesses, and (3) examine all documentary evidence received by the Hearing Committee.  The charging party’s advisor or legal counsel (if any) may also be present at the request of the charging party.

I.  The faculty member and/or his/her representative may be present at all sessions of the Hearing Committee at which evidence is presented or arguments are heard, and may (1) present evidence, (2) call, examine, and cross-examine witnesses, and (3) examine all documentary evidence received by the Hearing Committee.   The faculty member’s advisor or legal counsel (if any) may also be present at the request of the faculty member.   If the faculty member cannot be present at a hearing session due to circumstances beyond the faculty member’s control, the Chairperson may either reschedule the hearing session or choose to conduct the hearing session in the absence of the faculty member.  If the faculty member chooses not to be present, the Chairperson shall conduct the hearing sessions in the absence of the faculty member. 

J.  The Provost (or his/her designee) shall be available to the Hearing Committee to provide guidance on policy or procedural questions.  In the event that a policy or procedural question is at issue in the dismissal for cause proceedings, the Provost may choose to file a position statement with the Hearing Committee regarding the policy or procedural issue.  In those cases, the Provost (or his/her designee) will not serve in an advisory capacity to the Hearing Committee regarding policy or procedural questions. 

K.  The burden of proof shall rest with the charging party.  (See Section VI.A.2 of this Policy.)

L.  Except as provided below, only those members of the Hearing Committee who have been present at all sessions in which evidence has been presented or arguments have been heard shall have the right to vote. An exception to this attendance requirement shall be made by the Chairperson of the Hearing Committee for a member who has missed, for good cause, no more than one session and who has informed the Chairperson in writing that he/she has read the official transcript of that session.  This attendance requirement may also be waived by unanimous consent of the parties.

M.  Within a reasonable time following final arguments, the members of the Hearing Committee will vote to determine whether cause has been established.  If they determine that cause has been established, they shall recommend either dismissal or other disciplinary action(s).   If a majority of the Hearing Committee determines that cause has not been established, the matter is closed.7  

VI.  PROCESSING THE RECORD AND RENDERING JUDGMENT.

A.  Hearing Committee Report.

1. Within 30 days following the final arguments, the Hearing Committee shall submit its written report to the parties. If additional time is needed, the Chairperson of the Hearing Committee shall request an extension of time from the Chairperson of the UCFT.
   
2. The Hearing Committee report must include an explanation of its determination as to whether cause has been established.  If the Hearing Committee determines that cause has been established, the report must also include an explanation of its recommendation for either dismissal or some other disciplinary action(s).  A report which recommends dismissal for cause must state that at least one of the charges made against the faculty member has been proven by clear and convincing evidence.8  A report which recommends discipline other than dismissal must state that at least one of the charges made against the faculty member has been proven by a preponderance of the evidence.9
   
3. Subject to subsection 4 below, all members of the Hearing Committee shall sign the report attesting that they have read it and that it constitutes the findings and recommendations of a majority of the Hearing Committee.
   
4. Any member(s) of the Hearing Committee may file and sign a minority report, which shall become part of the Hearing Committee report.

B.  Appeals.

1. Grounds for appeal are limited to whether the Hearing Committee committed a prejudicial violation of the required procedures (see Appendix II) during the hearing process.
   
2. Either party may appeal the decision of the Hearing Committee to the then-current members of the UCFT, excluding the Presiding Officer and any members of the UCFT who served on the Hearing Committee. The remaining UCFT members shall constitute an appellate body (“the Appeal Panel”) and shall select a chairperson by majority vote.
   
3. A party wishing to appeal (“appellant”) must submit a written appeal to the Chairperson of UCFT within 15 days after the date that the Hearing Committee report was mailed.  The Chairperson of UCFT will transmit the appeal and a copy of the Hearing Committee report to the Appeal Panel and the appellee.10
   
4. The appeal must be in writing and must specify the claimed procedural violation(s) on which the appeal is based.
   
5. The appellee may submit a written response to the appeal. The response must be sent to the Chairperson of the UCFT and the party who initiated the appeal no later than 15 days after the date the appeal was mailed to the appellee.
   
6. The Appeal Panel will convene to decide the appeal.  The Appeal Panel will usually decide the appeal based on the written materials presented and in the absence of the parties.  If necessary, the Appeal Panel may request that both parties present oral argument and/or respond to questions regarding the appeal. The Appeal Panel may impose reasonable limits on the time allotted for oral arguments.
   
7. The Appeal Panel shall render a decision on the appeal within ten days of receiving all arguments.  A decision will be made by a simple majority vote.  In rendering a decision, the Appeal Panel may not amend the findings or the recommendations of the Hearing Committee.  The Appeal Panel may reach one of the following determinations:
   
   i. No violation found.  The Hearing Committee did not commit a prejudicial violation of the required procedures during the hearing process.
   
   ii. Harmless Error.  Although a violation of the procedures occurred, it did not materially harm the appellant’s ability to present his/her case fully.
   
   iii. Rehearing.  The Hearing Committee committed a prejudicial violation of the procedures during the hearing process which can and should be corrected by the original Hearing Committee.
   
   iv. Rehearing/New Hearing Committee.  The Hearing Committee committed a prejudicial violation of the procedures during the hearing process which has tainted the hearing to an extent that correction by the original Hearing Committee is impossible.  A new Hearing Committee must be established to rehear the case.

C.  Final Hearing Committee Report.

1. After appeals and rehearings, if any, are concluded, the Hearing Committee's report shall be considered final and shall be sent to the President, the Provost, and the parties.
   
2. A copy of the complete transcript of the hearing shall be sent to the faculty member.
   
3. The Chairperson of the Hearing Committee shall file the complete record of the case with the Office of the Provost.  The complete record shall contain: (i) the final Hearing Committee report, (ii) any Appeal Panel decision, (iii) meeting minutes (see Section IV above), (iv) the record required by part 11 of Appendix I, and (v) the transcript of the hearing. The complete record shall be held for review in the Provost's Office and shall be available to the President, the Provost, the Board of Trustees, and the parties, for their review, in a place designated by the Provost.
   
4. If the Hearing Committee finds cause, the Provost and the parties may, within 15 days of the date of the mailing of the Hearing Committee’s report, review the record and file written comments with the Chairperson of the Hearing Committee and the President.11 

D.  The President, within a reasonable time, will review the Hearing Committee’s report and provide his/her preliminary response in writing, accompanied by supporting rationale, to the Chairperson of the Hearing Committee, the Provost, and the parties.

E.  The Provost, the parties, and the Hearing Committee, through its Chairperson, may, within 15 days of the date that the President's preliminary response was mailed, submit written comments to the President about his/her preliminary response. 

F.  Following the 15 day period for submitting written responses, the President will issue a final report on the charges against the faculty member.   Copies of the President’s final report will be provided to the Chairperson of the Hearing Committee, the Provost, and the parties.

1. If the Hearing Committee and the President both determine that there is cause for disciplinary action but not dismissal, the President’s final report will conclude the matter and the disciplinary action recommended by the President will be imposed.12   

G.  If either the Hearing Committee (by majority vote) or the President recommends dismissal, the President shall submit the following materials to the Board of Trustees:  the final Hearing Committee report (along with any written comments), the preliminary response of the President, and the final report of the President.  Any Trustee may have access to the complete record of the case.

H.  The Office of the Provost shall provide notice to the parties of the date and time that the Board of Trustees is expected to take action on the matter.

I.  After reviewing the relevant materials, the Board of Trustees may: (1) dismiss the faculty member for cause, (2) impose discipline other than dismissal, or (3) determine that cause has not been established and close the matter.

VII.   CONFIDENTIALITY.

All proceedings and records of dismissal for cause proceedings shall be kept confidential to the degree permitted by the law.  The Board of Trustees will decide on a case by case basis whether action taken by the Board pursuant to this Policy will identify the affected faculty member by name.  

¹This Policy does not apply with respect to: (1) a tenure system faculty member's material misrepresentation made to the University in obtaining employment, or (2) cases where disciplinary action other than dismissal is sought. In such cases, the Policy and Procedure for Rescission and the Policy and Procedure for Implementing Disciplinary Action where Dismissal is not Sought, respectively, shall be followed.

²This Dismissal of Tenured Faculty for Cause Policy (the “Policy”) also applies to the dismissal of non-tenured faculty appointed in the tenure system prior to the expiration of the term of appointment.

³Unless otherwise noted, references to “days” in this Policy refer to calendar days.

⁴The decision of the Provost as to whether the matter is serious enough to warrant initiation of dismissal for cause proceedings is not a determination regarding the merits of the charges against the faculty member and shall not be viewed as the Provost’s agreement or disagreement with the charges against the faculty member.

⁵The Provost shall not comment on any information contained in the confidential report of the Review Officer at any stage of the dismissal for cause proceedings unless that information is also contained in the record of those proceedings.

⁶The Chairperson of the UCFT shall serve as the Presiding Officer for the selection of the Hearing Committee.  In the event that one of the parties is from the same college as the Chairperson of the UCFT, the Associate Chairperson of the UCFT shall preside.  If the Associate Chair is unable to serve, the most recent past UCFT Chairperson who is available shall preside.  The Presiding Officer is not eligible to serve on the Hearing Committee or any Appeal Panel.

⁷If membership on the Hearing Committee has been reduced to four members (see Appendix I, part 11) and there is a “tie” vote on the issue of whether cause has been established, the Hearing Committee shall issue a split report as its decision to the parties and the matter will proceed.

⁸ “Clear and convincing” means the standard of proof that is beyond a mere preponderance but below that of “beyond a reasonable doubt.”  The “clear and convincing” standard would be met where the members of the Hearing Committee have a firm belief that the facts in issue have been established.

⁹“Preponderance of the evidence” means that the existence of the fact in issue is more probable than not.  The “preponderance of the evidence” standard would be met where the members of the Hearing Committee find that the evidence supporting one of the charges is more convincing than the opposing evidence.

¹⁰ The “appellee” is the party who did not file the appeal.

¹¹When provided an opportunity to comment, the Provost and parties are expected to confine their comments to the record and not introduce new information.  However, the Provost may comment on procedural or policy issues at any time.

¹²Disciplinary action implemented under this Policy may not be challenged through the Faculty Grievance Procedure.

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