Subject:
Employees Exempt from the State Personnel Act
Section:
HR
Part:
Policy
Statement: 29
Effective Date: 03/12/01
A.
Scope of Category
Employment positions at Fayetteville State University (hereinafter
referred to as “university”) that are covered by this Employment
Policy for Employees Exempt from the State Personnel Act
(hereinafter referred to as “Policy”) are those positions
that are not subject to the State Personnel Act and are not
otherwise categorized. This category includes the following:
1.
Senior Academic and Administrative Officers.
This category of employees is defined in Section I.B. of Board of
Governors’ policy
§
300.1.1 and includes employees
classified as associate and assistant vice chancellors, associate
and assistant deans, and employees who hold administrative positions
within the university that have been designated by the President as
Senior Academic and Administrative Officers; and
2.
Instructional and Research Staff. This category of
employees is defined in Board of Governors’ policy § 300.2.5 and
includes, but is not limited to employees in areas of academic
advising, academic preparation and enhancement, co-operative
education, coaching, student support services, counseling,
institutional research, academic computing and community service.
Employment positions that are not covered by this Policy
include the following:
1.
Faculty positions subject to university tenure regulations;
2.
Positions within the "physicians or dentists" category;
3.
University students who are employed incident to their status as
students, as in graduate teaching assistantships or work-study
positions; and
4.
Senior Academic and Administrative Officers defined in
Section I.A. of Board of Governors’ policy § 300.1.1 and includes
employees classified as chancellors, vice chancellors, provosts,
deans and directors of major administrative, educational, research
and public services activities.
B. Applicability of Policies
This
Policy applies to all permanent covered positions.
SECTION II
APPOINTMENTS TO POSITIONS COVERED BY THIS POLICY
A.
Method of Appointment
Every appointment to a position covered by this Policy within
the University shall be made by or on behalf of the chancellor by
means of a letter of appointment that fulfills the requirements of
this Policy.
B. Letter of Appointment
Every letter of appointment to a position covered by this Policy
shall include the following:
1. the title of the position;
2. the initial salary;
3. provision for periodic review of compensation*
4. provision consistent with Sections II.C. and II.D. below,
if contingencies based on availability of
funding are applicable;
5. the annual leave entitlement of the employee;
6.
notice that the employment conferred is either for a stated
definite term or is an "employment at will" subject to continuation
or discontinuation at the discretion of the chancellor; and,
7.
notice that the employment is subject to this Policy,
as it was originally adopted and as it may periodically be revised
from time to time. A copy of this Policy shall be attached to
the letter of appointment.
*Subject to
any compensation policies adopted by the Board of Governors or the
Board of Trustees
C.
Contingent Appointments
When
a position covered by this Policy is funded in whole or
substantial part from sources other than continuing State budget
funds or permanent trust accounts, the letter of appointment shall
include the following:
1. a
statement indicating that continuation of the employee's service in
that position is contingent upon the continuing availability of
funds from such other sources to support that position,
2.
specification of the source of such
funds, and
3.
a statement which indicates that the
effect of such contingency may apply without the additional notice
otherwise required by Section III.A., III.B., and III.C., provided
that the affected employee shall be informed at the earliest
practicable date of he occurrence of such a funding contingency.
D.
Individuals Covered by More than One Employment Policy
When an employee is to serve simultaneously in both a position
covered by this Policy and a position of university
employment not covered by this Policy, with the result
that two different prescriptions may apply, one position shall be
designated the base position. The base position shall be used to
determine the conditions of employment and the rights and
responsibilities of the employee. In this situation, the following
shall apply:
1.
Subsequent Appointment to a Position Covered by
this Policy
If appointment to a position covered by this Policy occurs
subsequent to an appointment to a position not covered by
this Policy, the letter of appointment to the position
covered by this Policy shall embody the required designation
of base employment. The designation of base employment shall
specifically describe the different rights, duties, and compensation
for each position and the relationship, if any, between the two
positions.
2.
Subsequent Appointment to a Position Not
Covered by this Policy
If appointment to a position covered by this Policy
precedes appointment to a position not covered by this
Policy, the letter of appointment or contract establishing the
second employment shall embody the required designation of base
employment. The designation of base employment shall specifically
describe the different rights, duties, and compensation for each
position and the relationship, if any, between the two positions.
3.
Funding Contingency
Any funding contingency of the type referred to in
Section II.C. shall be set forth separately for the position covered
by this Policy and for the position not covered by this
Policy, since the operation of any such contingencies may be
independent.
4.
Appointment to an Adjunct Faculty Position
When an appointment to a covered position is to be
accompanied by appointment to a faculty position that is intended to
be nominal or honorary or to create a faculty affiliation not
entailing significant duties or compensation, the term "adjunct"
shall be used to identify the faculty appointment.
SECTION III
DISCONTINUATION OF EMPLOYMENT IN COVERED POSITIONS
A. Discontinuation of Appointment With Notice or Severance
Pay
Employment
within a position covered by this Policy that is established
by the letter of appointment to be an "employment at will" is
subject to discontinuation at any time at the discretion of the
chancellor or chancellor’s designee, provided that such a
discontinuation (as distinguished from discharge for cause, Section
III.D.) shall be subject to advance timely notice of discontinuation
or the payment of severance pay, in calendar days, as follows:
1. During the first year of service, not less than thirty
(30) days notice prior to discontinuation of employment or the
payment of severance pay for thirty (30) days;
2. During the second and third years of service, not less than
sixty (60) days notice prior to discontinuation of employment or the
payment of severance pay for sixty (60) days; and
3. During the fourth and all subsequent years of continuous
service, not less than ninety (90) days notice prior to
discontinuation of employment or the payment of severance pay for
ninety (90) days.
The chancellor
shall determine whether the employee shall receive notice of
discontinuation or severance pay.
B. Expiration of a Fixed-Term
Appointment
Employment within a position covered by this Policy that is
established by the letter of appointment to be for a stated definite
term expires automatically at the conclusion of the stated term.
Such an appointment may be renewed at the option of the chancellor
or chancellor’s designee, by written notice which satisfies the
requirements of Section V.
The decision not to renew an individual’s appointment at the
expiration of a fixed term of service shall be made early enough to
permit timely notice to be given as follows:
1. No notice of intent
not to renew shall be required
for an individual with a one (1) year appointment. The letter of
appointment is considered to be adequate notice of the expiration of
the term.
2. With respect to a term of more than one (1) year but less
than four (4) years, notice of intent not
to renew shall be transmitted in writing at least sixty (60) days
prior to the expiration date of the term;
3. With respect to a term of four (4) years or more, notice of
intent not to renew shall be transmitted in writing at least ninety
(90) days prior to the expiration date of the term.
Failure to provide written notice as required in subsections (2) and
(3) shall result in the automatic extension of employment for a
period, respectively, of either sixty (60) days or ninety (90) days,
beyond the scheduled expiration date of the term.
C. Termination of Employment Because of Financial Exigency or
Program Elimination
Employment within a position covered by this Policy
that is established by the letter of appointment to be for a stated
definite term may be terminated prior to the expiration of the
stated term because of the following
1.
demonstrable, bona fide university financial exigency, or
2.
major curtailment or elimination of a program.
"Financial exigency" shall mean a significant decline in financial
resources of the university that compels a reduction in the
university's budget. The determination of whether a condition of
financial exigency exists or whether there shall be a major
curtailment or an elimination of a program shall be made by the
chancellor, with advance notice to and approval by the President and
the Board of Governors.
If the
financial exigency or curtailment or elimination of a program is
such that the contractual obligation to an employee within a
position covered by this Policy cannot be met, the employment
of the individual may be terminated, subject to the following notice
requirements:
1.
During the first year of service, not less than thirty (30)
days notice prior to termination;
2.
During the second and third years of service, not less than sixty
(60) days notice prior to termination; and,
3.
During the fourth and all subsequent years of continuous service,
not less than ninety (90) notice prior to termination.
D. Discharge for Cause
1. Any
employee occupying a position covered by this Policy may be
discharged for stated cause. Discharge for cause is to be
distinguished from discontinuation of an employment at will (Section
III.A.), automatic expiration of a term appointment (Section III.B.)
and termination (Section III.C.). Stated causes for discharge shall
include, but not necessarily be limited to, incompetence,
unsatisfactory performance, neglect of duty, or misconduct that
interferes with the capacity of the individual to perform
effectively the requirements of his or her employment. Discharge for
cause is to be preceded by written notice of intent to discharge and
is subject to Section III.D.2. below.
When an employee occupying a position covered by
this Policy has been notified of the intention to discharge
for cause, the chancellor may suspend the employee at any time and
continue the suspension until a final decision concerning discharge
has been reached. The power to suspend shall be invoked only in
exceptional circumstances and such suspension shall be with full
pay.
2.
Procedures for Discharge for Cause
a. The vice-chancellor of the employee’s division shall send
the employee to be discharged, by certified mail, return receipt
requested, a written statement of the intention to discharge or
suspend the individual. The statement shall include the reason(s)
for the intended discharge and a notice of the individual's rights.
b. If, within five (5) days*
after receiving the notice referred to in subsection 2.b. above, the
employee makes no written request for a hearing, the employee may be
discharged without recourse to any University grievance or appellate
procedure.
c.
If
the employee makes a written request for a hearing within five (5)
days, the procedures outlined in Appendix A, Sections C-J shall
apply.
* As used in this policy, the word
"day" shall mean any day except Saturday, Sunday, or an
institutional holiday. In computing any period of time, the day in
which notice is received is not counted but the last day of the
period being computed is to be counted.
E. Review of Employment Decisions and Grievances
Individuals in position covered by this Policy may secure
review of decisions concerning a discharge for cause or other
disciplinary action, or of grievances concerning the interpretation
and application of any provision of this Policy, provided,
however, that grievances concerning discontinuations or terminations
of employment with notice, pursuant to Sections III.A., III.B. or
III.C. may be brought only upon allegations of violations of
applicable notice requirements or violations of any provision of
Section IV and Section V of this Policy.
All reviews of
employment decisions or grievances shall be in accordance with
procedures outlined in Attachment A, Grievance Policy and
Procedures for EPA Non-Faculty Employees. Decisions reached
pursuant to the grievance procedures concerning the discontinuation
or termination of employment may be had in accordance with Section
501(c)(4) of The Code. (Effective,
January 1,
2004, an individual may petition for a subsequent review of a
decision pursuant to Section
609C of
The Code.)
SECTION IV
EQUAL
EMPLOYMENT OPPORTUNITY
It is the
policy and intention of Fayetteville State University that there be
equal employment opportunity and freedom from unlawful
discrimination in all employment within the university. There shall
be no discrimination in positions covered by this Policy on
the basis of race, color, creed, national origin, sex, religion,
disability, age, or honorable service in the armed services of the
United States.*
Employment in positions covered by this Policy shall be
conducted in accordance with all provisions of state or federal law
or regulation prohibiting any such discrimination, and in accordance
with the university's affirmative action policy.
* Bona fide occupational qualifications or other exceptions to those
general prohibitions, specifically provided for by State or Federal
law are applicable to EPA positions.
SECTION
V
PROTECTED
ACTIVITY
Employment in
positions covered by this Policy shall not be adversely
affected by the exercise of rights guaranteed by the First Amendment
to the United States Constitution or by Article I of the North
Carolina Constitution; provided, that employees in positions covered
by this Policy shall be subject to any limitations on
political activity established by Article 5 of N.C.G.S., Chapter
126. The Board of Governors' policies concerning political activity,
Policy §§300.5, et seq. as they may be revised
from time to time, shall apply to positions covered by this
Policy.
SECTION VI
HOLIDAY AND
LEAVE ENTITLEMENT
A.
Holidays
Employees in
positions covered by this Policy shall be subject to the same
State-prescribed holidays given employees subject to the State
Personnel Act.
B.
Annual Leave (effective July 1, 2001)
1.
Basic Leave Policy
The monthly
earnings amount of annual leave is equal to one-twelfth of the
annual rate for each month the employee works or is on approved
leave with pay. Monthly leave is earned when an employee works or is
on approved leave with pay at least half the working days of a
month.
2.
Permanent Full-Time Employees
The amount of
annual leave to which a permanent full-time (1.00 FTE) employee
covered by this Policy shall be entitled to accrue is
twenty-four (24) workdays per year. With respect to an incumbent
employee who is earning more than twenty-four (24) days per year as
of the date this policy becomes effective, such employee shall be
entitled to continue to earn leave at that rate.
3.
Part-Time Employees
Annual leave
is accrued at a monthly rate and is adjusted proportionately for a
part-time employee who works half-time or more (0.50 - 0.99 FTE).
4.
Definition of Year
A
year is defined as the "calendar year" (January 1 - December 31).
5.
Scheduling of Leave
The
scheduling of an employee's annual leave shall be subject to the
approval of the employee's supervisor.
6.
Leave Carry Forward and Conversion
The maximum
number of unused days of annual leave that an employee subject to
this Policy may carry forward from one calendar year to the
next shall be thirty (30) workdays. Annual leave in excess of thirty
(30) days will be automatically converted to sick leave at the end
of the calendar year.
7.
Transfer of Accrued Annual Leave
Fayetteville
State University accepts the transfer of annual leave. This includes
any leave from a UNC constituent university or State of North
Carolina agency or local North Carolina government. Upon
discontinuation of employment from this university, an employee may
elect a payout of accrued annual leave or transfer the remaining
balance of any unused annual leave to another UNC constituent
university or State of North Carolina agency or local North Carolina
government, subject to the receiving agency’s approval.
8.
Advancement of Annual Leave
a.
Subject to approval by the employee's supervisor, an employee
subject to this Policy may be advanced an amount of annual
leave up to a combined maximum deficit balance of five (5) days. A
supervisor may approve a deficit balance of annual leave, for
extenuating circumstance or exceptional need. The permissible
negative balance is adjusted proportionately for a permanent
part-time employee who works half-time or more (0.50 - 0.99 FTE).
b. If
an employee separates from the university and has taken more annual
leave than has been accrued, then the university shall determine the
amount of annual leave the employee must repay to the university and
make deductions from the employee's final salary check accordingly.
However, if the employee has been advanced more leave than can be
repaid in the employee's final paycheck, the employee will be billed
accordingly.
9.
Payout of Accrued Annual Leave
a. An
employee subject to this Policy who is separating from the
University and who has accrued unused annual leave shall be paid for
such unused annual leave if the employee does not elect or is not
eligible to transfer such accrued leave to another State or local
governmental agency.
b.
The amount paid to an employee subject to this Policy
who has been employed an aggregate of twenty-four (24) months or
less by one or more State or local governmental agencies is equal to
one day for each month worked less the number of days of annual
leave taken during the employment period. An employee who has been
employed for more than 24 months shall be paid subject to a maximum
of thirty (30) such days.
c.
If an
employee subject to this Policy changes contract status from
twelve (12) months to nine (9) months, the employee's annual leave
balance as of the effective date of the contract change will be paid
out at the time of the appointment conversion. An EPA employee who
transfers inside the university to an SPA position shall have the
annual and sick leave balances transferred to that position.
C. Sick
Leave, Family and Medical Leave, Family Illness Leave, Civil Leave,
Military Leave, Community Service Leave and Special Annual Leave
Bonus
1.
Sick Leave
a. A
permanent employee subject to this Policy shall be subject to
the same policies concerning sick leave as may be prescribed for
employees subject to the State Personnel Act.
b.
Subject to the approval of the employee's supervisor, an
employee subject to this Policy may be advanced an amount of
sick leave up to a combined maximum deficit balance of five (5)
days. Appropriate uses for sick leave are prescribed in the State
Personnel Manual, Section 5,
http://www.osp.state.nc.us/manuals/man5.html. A supervisor may
approve a deficit balance of sick leave, for extenuating
circumstance or exceptional need. The permissible negative balance
is adjusted proportionately for a permanent part-time employee who
work half-time or more (0.50 - 0.99 FTE).
c.
If an employee separates from the university and has taken
more sick leave than has been accrued, the university will determine
the amount of sick leave the employee must repay to the university
and make deductions from the employee's final salary check
accordingly. However, if the employee has been advanced more leave
then can be repaid in the employee's final paycheck, the employee
will be billed accordingly.
2.
Family and Medical Leave, Family Illness Leave, Civil Leave,
Military Leave, Community Service Leave
Employees in
positions covered by this Policy shall be subject to the same
policies concerning family and medical leave, family illness leave,
civil leave, military leave and community service leave as may be
prescribed for employees subject to the State Personnel Act.
3.
Special Annual Leave Bonus
a. Awarded to Employees on Leave Earning Status as of
9/30/2002
Employees in
positions covered by this Policy who were in leave-earning
status on 9/30/2002 shall be subject to the same policies concerning
special annual leave bonus as may be prescribed for employees
subject to the State Personnel Act, except that employees covered by
this Policy are entitled to ten
(10) days of bonus leave.
b.
Awarded to
Employees on Leave Earning Status as of 7/1/2003
Employees in
positions covered by this Policy who were in leave-earning
status on 7/1/2003 shall be subject to the same policies concerning
special annual leave bonus as may be prescribed for employees
subject to the State Personnel Act, except that employees covered by
this Policy are entitled to ten
(10) days of bonus leave.
4.
Leave of Absence without Pay
A permanent
employee subject to this Policy may request a leave of
absence without pay, subject to the approval of such leave by the
chancellor or chancellor's designee.
5.
Voluntary Shared Leave
Employees in
positions covered by this Policy shall be subject to the same
provisions concerning shared leave as are applicable to employees
subject to the State Personnel Act with the exception that the
donation and acceptance of such leave shall be computed on the basis
of days rather than hours.
6.
Educational Entitlement
A permanent
EPA employee is entitled to the same opportunities as other
university employees to invoke the privilege of tuition waiver
conferred by N.C.G.S. § 116-143.
SECTION VII
STATUTORY AND OTHER RULES OF EMPLOYMENT
A.
Privacy of Personnel Records
Employees in
positions covered by this Policy have the protections of and
are subject to the provisions of Article 7 of N.C.G.S. § 126,
entitled, The Privacy of State Employee Personnel Records.
B.
Employment Preference for Veterans
Employees in
positions covered by this Policy enjoy the protections of and
are subject to the provisions of N.C.G.S. § 128-15 and § 128-15.1,
which provide for preference in employment for veterans of United
States military service and their spouses and widows or widowers.
C.
Employment of Related Persons
Employees in
positions covered by this Policy are subject to the Board of
Governors’ policy § 300.4.2, as it may be revised from time to time
concerning employment of related persons.
D.
Retirement
Employees in
positions covered by this Policy may retire in accordance
with the provisions of Chapter 135 of the North Carolina General
Statutes (Retirement System of Teachers and State Employees).
SECTION
VIII
IMPLEMENTATION
The Board of
Trustees of this university has adopted this Policy for
university employees in positions covered by this Policy.
Any proposed provision that in any manner adds to or modifies the
provisions of this Policy must be submitted for review and
approval by the President of the University of North Carolina prior
to its adoption by the Board of Trustees and its subsequent
implementation.
APPENDIX A
Grievance Policy and Procedures
for EPA Non-Faculty Employees
A.
Definition of Grievance and Scope of Grievance Procedure
The purpose of this grievance policy is to allow employees covered
by Fayetteville State University’s Employment Policy for
Employees Exempt from the State Personnel Act (hereinafter
referred to as Policy) to secure a review of the following:
1.
a decision concerning a discharge for cause (see Section III.D. of
the Policy) or other disciplinary action; or
2.
a grievance concerning the interpretation and application of any
provision of the Policy; or
3.
a discontinuation or termination of employment with notice, pursuant
to Sections III.A., III.B. and III.C. of the Policy. Such a
grievance may only be brought upon allegations of violations of
applicable notice requirements or violations of any provisions of
Sections IV and V of the Policy.
This grievance
procedure cannot be used to challenge the general application of a
university or college policy on the grounds that the policy itself
is unfair or inadvisable.
B.
Filing a Grievance
1. A formal grievance may be filed only
after an employee covered by the Policy (hereinafter referred
to as “grievant”) has attempted to resolve the grievance with his or
her department head and the department head’s supervisor without
satisfactory results. No grievance may be considered until a
determination is made that an unsuccessful attempt has been made by
the grievant to resolve it with the administrative officials
previously mentioned.
2. After the grievant has attempted to resolve the
grievance, the grievant may file a written request for
a hearing with the Director of Human Resources or his or her
designee (hereinafter referred to as
“Director of HR”). The request must be filed within fifteen (15)
calendar days of the decision cited in the
grievance. This filing deadline can be extended only if, in the
judgment of the Director of HR, there are
significant extenuating circumstances. The grievant should send
copies of this request to all parties
against whom the grievance is directed at the same time the request
is sent to the Director of HR.
3.
The written request for a hearing must include the following:
a.
the exact nature of the grievance, including what alleged
violations, as provided in Part A above,
occurred;
b. the
identity of all parties against whom the grievance is filed;
c. the
redress sought; and
d. a
statement giving members of the Committee authorization to review
documents submitted by the parties from the grievant's personnel
files for the purpose of resolving the grievance.
C.
Grievance Committee
1.
Upon receipt of the written request for the formation of a
grievance committee, the Director of HR shall meet with the
chancellor or his or her designee for the purpose of selecting a
three (3) member grievance committee and a grievance committee
chair.
2.
Once selected, the Human Resources Director shall notify the
grievant of the individual who will chair the grievance committee
(hereafter referred to as the Committee ) and the Committee
members. This shall be done no less than ten (10) calendar days
following receipt of the grievant's written request.
3.
The Human Resources Director shall forward a copy of the
grievant’s statement to the Committee chair and Committee members
and promptly convene the Committee for its initial meeting. Copies
of these grievance procedures shall be provided to the Committee
chair and each member of the Committee in advance of the initial
meeting.
4.
At the initial meeting of the Committee, the Director of HR
or his or her designee shall provide the members of the Committee
with an orientation covering the role and responsibilities of the
Committee and a review of the grievance process.
5.
After the orientation, the Committee chair and members shall
review the grievant’s statement and determine whether the matter as
stated is properly grievable. The matter is not considered properly
grievable if the individual presenting the grievance is not an
employee covered by this Policy, if the subject matter does not
concern a matter listed in paragraphs A.1., .A.2. or A.3. above, and
if the grievance was not filed in a timely manner. (See paragraph
B.2. above.)
6.
If the matter is properly grievable, the Committee chair
should proceed to schedule a hearing with the parties to the
grievance. If it is not properly grievable, the Committee may
either:
a.
allow the grievant to amend the grievance statement if this will
enable the grievant to prepare a properly grievable claim. If
allowed to amend the grievance statement, the grievant should submit
the revised statement to the Committee chair no less than three (3)
calendar days following notification by the Committee; or
b.
proceed to Part F below by preparing a report that dismisses the
grievance for reasons stated.
D.
Hearing Schedule and Pre-Hearing Exchanges
1. The
hearing shall be scheduled no less than forty-five (45) calendar
days from the Human Resources Director’s receipt of the grievance
statement. Only if the Committee chair is aware of significant
extenuating circumstances shall the opening date of the hearings be
delayed beyond forty-five (45) calendar days from receipt of the
grievance statement. The chair shall notify the grievant and all
other parties in writing of the dates and location of the hearing.
2. The
Committee chair shall require the parties to exchange witness lists
and copies of exhibits the parties wish to introduce as evidence,
and the Committee chair shall specify that the exchange occur at
least ten (10) calendar days in advance of the hearing.
3. If
a party wishes to introduce exhibits at the hearing that were not
included in a pre-hearing exchange, the Committee chair shall decide
whether there is a good reason for accepting such evidence.
4. Any
pre-hearing exchange of proposed exhibits shall be between the
parties only, and in no case should evidence be provided to the
Committee prior to the hearing.
5.
Exhibits must be numbered sequentially and identified by party;
e.g., Grievant's Exhibit No. 1, Department Head Exhibit No. 3, or
Committee Exhibit No. 5. The exhibit numbers should be written on
the exhibits, and pages numbered, at the time they are first
presented to the Committee. References to documents during the
hearing should be by exhibit number with page references as
applicable.
E. Guidelines for the Conduct of Grievance Hearings
1.
Committee Members
Hearings shall
be conducted with the chair and all three Committee members
present. If the Committee is unable to convene and hear the
grievance in a timely manner or is not functioning effectively, any
Committee member or party to the proceeding may ask the Human
Resources Director to disband the Committee or replace members who
are delaying or otherwise obstructing the Committee's progress. The
Human Resources Director shall have the discretion to make any
changes to the Committee, including the Committee chair, that are
necessary to have it function effectively. The request to disband or
replace, and the decision of the Human Resources Director in
response, must be in writing and be included in the Official Record.
2. Observers
The grievant
and the respondent each are allowed to have one third-party observer
present. That observer cannot be an attorney and cannot participate
in the hearing.
3.
Control of Hearings
The Committee
chair shall exercise complete control over all stages of the
hearings and over pre-hearing matters. Consistent with the
principles of impartiality and equity, the Committee chair shall
determine, among other things, the following:
a.
additional information or documentation, if any, that should be
requested;
b.
admissibility of all questions and evidence and compliance with
procedures; and
c.
parties who may be allowed to be present at any hearing. With the
exception of persons specifically designated as third-party
observers, grievance hearings are not open to spectators.
4. Relevance of Evidence
The strict
rules of legal evidence do not apply and the Committee chair may
admit any information determined to be pertinent and the Committee
shall have access to any available information relevant to the case.
If any hearsay evidence is to be admitted, however, the source of
that information must be revealed so that the person(s) can be
requested to appear before the Committee for questioning. The
Committee chair shall determine whether information or testimony is
material and relevant to the issues involved in the grievance and
may rule that certain presentations not be considered. All materials
submitted as evidence, including any written documents, photographs,
audio recordings, and video-materials shall be retained by the
Committee until its final report is complete, at which time both the
evidence and material excluded from evidence shall be incorporated
into the Official Record and forwarded to the chancellor along with
the final report. If material is excluded from evidence, the chair
shall make a record of the reasons.
5.
Testimony
Parties shall
have the right to testify, to present testimony of witnesses, to
hear and question witnesses, and to examine all documents and other
information considered by the Committee.
6.
Order of Presentation
In the
standard order of presentation, the grievant makes an opening
statement, and then the respondent(s) makes an opening statement, if
desired. Next, the grievant should present his or her case through
the grievant's own testimony, exhibits, and witnesses.
If the
Committee decides that the grievant's evidence, if taken as entirely
true, is not adequate enough to justify corrective action, then the
Committee shall proceed to dismiss the grievance. If the Committee
decides that the grievant's evidence is adequate enough to justify
corrective action, then the Committee chair will ask the
respondent(s) to present evidence through testimony of parties,
exhibits, and witnesses.
Following each
party's and witness' testimony, the Committee chair should allow
questions from the other parties. The Committee members may ask
questions of the parties and witnesses at any time. After all
evidence has been presented, the grievant may make a closing
statement, followed by the respondent(s), and a last statement by
the grievant.
The Committee
chair should set a time limit for opening and closing statements and
should prohibit the discussion of any new information in closing
statements.
7.
Questioning of Witnesses
The Committee
chair shall have the prerogative to determine the appropriateness of
all questions and the method of questioning. The Committee chair
should not allow any questioning that is irrelevant, immaterial,
unduly repetitious, or abusive.
8.
Confidentiality
Members of the
Committee, parties, and witnesses shall maintain strict confidence
concerning all aspects of the grievance process. This is required by
state law as well as university policy. Access to material placed in
evidence and to any records of the proceedings shall be strictly
limited for the duration of the hearings procedure to members of the
Committee, persons who have a need to know as part of the process
(witnesses, observers, etc.), and the parties.
Any breach of
confidentiality, which in the judgment of the Committee
compromises or substantially affects the process, may result in a
Committee decision to terminate the grievance process. In this
event, the Committee shall advise the chancellor and the Director of
HR as to whether or not another Committee should be formed to hear
the case.
9.
Hearings Records
The Committee
chair shall ensure that the University’s legal counsel is made aware
of the date, time, and place of the hearing early enough that
arrangements can be made to record the proceedings using a court
reporter.
At any stage
prior to submission of the Official Record to the Office of the
chancellor, any party shall be granted, under supervision of the
Committee chair, access to the official transcript and the
Committee records.
After the
Official Record is delivered to the chancellor, access shall be
determined in accordance with state personnel records law. Once the
Official Record has been delivered to the chancellor, or a grievance
terminated, Committee members may destroy extra copies of records,
but any original or unique records, including personal notes of
Committee members, must be retained in accordance with state public
records law and sent promptly to the Director of HR.
10. Withdrawal of Grievance
At any time
prior to submission of the Committee's final report, the grievant
shall have the right to withdraw the grievance by submitting a
written request to the Committee chair. Receipt of this request
shall cancel the proceedings, and the Official Record of the hearing
shall consist only of the following:
a.
names of Committee members and its chair;
b.
date Committee was formed;
c.
dates of pre-hearing conference and any grievance hearings;
d.
date of withdrawal;
e.
withdrawal request; and
f.
grievance statement.
The Committee
chair shall promptly transmit the Official Record and all other
documents to the Director of HR, who shall in turn discharge the
Committee.
F. Deliberations and Report of the Grievance Committee
1.
Upon the conclusion of the grievance hearing, the Committee shall
deliberate and decide whether to sustain all or any part of the
grievance. The Committee chair shall be present during the
Committee's deliberations and may instruct the Committee regarding
its jurisdiction and other grievance related matters. The chair may
participate in the discussions but may not vote, veto the decision
of the Committee, or write the Committee's report.
2. The
Committee shall prepare a written report of its findings and
recommendations based solely on evidence presented at the hearing.
The report should state a separate finding for each particular issue
of the grievance, make findings that resolve the material issues of
fact that have been disputed, and recommend action(s) for the
chancellor to take. The Committee should be careful not to
substitute its judgment simply for that of the respondent(s).
Rather, the Committee should decide if the decision being grieved
was reached for improper or unfair reasons (e.g., based on
irrelevant factors such as age or race or political views or
personnel procedures violated to the prejudice of the grievant). The
Committee may recommend a compromise solution not advanced by any
party. The report shall include any minority views of Committee
members and shall note the intent of any Committee member to file a
separate report. Failure of the Committee to note such intent shall
not prohibit any Committee member from filing a separate report.
3. The
Committee chair shall send the Committee 's report, together with
the Official Record of the grievance, to the chancellor. Copies of
the report shall be sent to the parties and to the Director of HR.
4. The
Committee may write a separate report to the Director of HR and the
chancellor recommending any changes within the university that might
prevent similar grievances in the future or recommending any
proposed improvements in the grievance procedure.
G.
Response of The chancellor to The Report of The Committee
1.
Upon receipt of the report, the chancellor may do one of the
following:
a.
accept or reject within thirty (30) calendar days any or all
findings and recommendations of the Committee or
b.
remand the matter to the Committee for further consideration of the
grievance or
c.
may seek clarifying information from the Committee.
2. In
considering the Committee's report, the chancellor may, with proper
respect for confidential matters, share parts of the report with
appropriate administrators (other than parties or witnesses) for
their advice.
3. If
the chancellor's decision is a rejection of the findings or
recommendations of the Committee, the chancellor shall notify the
Committee members in writing, with copies to the parties and to the
Director of HR, giving his/her specific reasons for not accepting
the Committee's findings or recommendations. The chancellor shall
provide the opportunity for the Committee and parties to respond to
the chancellor's decision. The chancellor shall notify the grievant
of the final decision by registered return-receipt mail. Copies of
the decision shall be sent to the respondent, the Committee, and the
Director of HR.
H.
Official Record
1. The
Official Record of a grievance hearing shall consist of all
correspondence pertaining to the grievance and every item, piece of
information, document, and exhibit that was either submitted to or
given consideration by the Committee, along with the court
reporter's transcript of the hearing. All information relevant to
the Committee's procedural rulings, factual findings,
recommendations, and any other aspects of its final report should be
included in the Official Record.
2. If
the Committee decided that certain information offered by a party or
witnesses should be excluded from consideration, the decision to
exclude should be recorded for the record and the excluded
information should be kept as part of the Official Record but
segregated from the information that was accepted as evidence.
3. The
Official Record should include a table of contents so that every
document and record can be easily identified and located. The
Official Record should be forwarded to the chancellor along with the
Committee's final report.
I. Discharge of Grievance Committee
Upon receipt
of the chancellor's final decision, the Committee will have
completed its work and shall be officially discharged in writing by
the chancellor.
J. Appeals from the Decision of the Chancellor
An individual
may petition for a subsequent review of a decision pursuant to
Section 501(c)(4) of The Code. (Effective,
January 1,
2004, an individual may petition for a subsequent review of a
decision pursuant to Section
609C of
The Code.
Amended: 12/94
9/03
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