The
UNC Policy Manual
101.3.1.1[R]
Adopted
07/01/19
Amended
07/28/23
I. Purpose
A. Section
603 of The Code provides a faculty
member who is the beneficiary of institutional guarantees of academic tenure shall
enjoy protection against unjust and arbitrary application of formal discharge,
suspension, or demotion; specifies the reasons for imposition of formal discharge,
suspension, or demotion; and establishes the procedures for the imposition of
formal discharge, suspension, or demotion.
The process of discharge or the imposition of formal discharge,
suspension, or demotion must be fundamentally fair to the faculty member. Section 603 includes certain procedures to assure
fairness, but there is no expectation that the process be attended by the
formality or technicality which characterizes civil or criminal legal
proceedings in a court of law. Rather,
the process should be conducted by administrators and faculty in a manner
designed to determine whether discharge, suspension, or demotion is warranted.
These procedures shall not apply to Non-Reappointment, Denial of Tenure, or
Denial of Promotion as provided in Section 604 of The Code, Separation
Due to Financial Exigency or Program Curtailment as provided in Section 605 of The
Code, grievances as provided in Section 607 of The Code, or any
employment action that is not a formal discharge, suspension, or demotion.
B. The
purpose of a disciplinary hearing by a disciplinary hearing committee is to
make a recommendation about whether by clear and convincing evidence there are grounds
for discharge, suspension, or demotion. The disciplinary hearing committee
bases its written recommendations to the chancellor on the competent evidence
presented to the disciplinary hearing committee. The decision as to whether to discharge,
suspend, or demote the faculty member is the chancellor’s.
C. The purpose of appellate review by
the board of trustees is to determine whether (1) the campus-based process for
making the decision was materially flawed; (2) the result reached by the
chancellor was clearly erroneous; and/or (3) the decision was contrary to controlling
law or policy.
II. Decision to Discharge, Suspend or
Demote
A. Basis
for Decision. A decision to impose
discharge, suspension, or demotion, may only be made for one or more of the
three defined permissible reasons in Section 603(1) of The Code:
1.
Incompetence, including
significant, sustained unsatisfactory performance after the faculty member has
been given an opportunity to remedy such performance and fails to do so within
a reasonable time;
2.
Neglect of duty,
including but not limited to, the sustained failure to: meet assigned classes,
respond to communications from individuals within the faculty member’s
supervisory chain, report to the employment assignment and by continuing to be
absent for fourteen (14) consecutive calendar days without being excused by
their supervisor, or to perform other essential duties of their position;
and/or
3.
Misconduct of such a
nature as to indicate that the individual is unfit to continue as a member of
the faculty, including violations of professional ethics or engaging in other
unethical conduct; violation of university policy or law; mistreatment of
students or employees; research misconduct; financial or other fraud; or criminal
or other illegal or inappropriate conduct.
To justify formal discharge, suspension, or demotion, such misconduct
should be either (a) sufficiently related to a faculty member’s
responsibilities as to disqualify the individual from effective performance of job
duties, or (b) sufficiently serious as to adversely reflect on the individual’s
honesty, trustworthiness, or fitness to be a faculty member.
The reasons for discharge, suspension, or demotion are not
mutually exclusive. Certain facts
presented to support a discharge, suspension, or demotion may fall under one or
more of the reasons listed above. So
long as there is sufficient evidence of the underlying facts to support a
discharge, suspension, or demotion, an action shall not be invalid because the
reason provided mislabeled or miscategorized the underlying facts.
The chancellor or chief academic officer of an institution
has the discretion to place a faculty member on administrative leave with pay at
any time if the chancellor or chief academic officer determines in his or her
discretion that circumstances warrant it and may choose to do so at any time. The
decision to place a faculty member on administrative leave with pay is not
grievable under any process under The Code.
If the faculty member timely requests a disciplinary
hearing, the disciplinary hearing will be on the written specification of
reasons for the intended discharge, suspension, or demotion.
B. Role of the Disciplinary Hearing Committee.
The primary role of the disciplinary hearing committee is to provide the
opportunity for a hearing on the intent to discharge, suspend, or demote the
faculty member. The disciplinary hearing
committee provides an opportunity for the faculty member and the chief academic
officer (or designee(s)) to present relevant evidence. The disciplinary hearing committee shall create
a clear, permanent written record of the evidence presented at the hearing and make
a recommendation to the chancellor of whether or not to impose a discharge,
suspension, or demotion, based on a finding that the chief academic officer (or
designee(s)) showed by a standard of clear and convincing evidence that there is a permissible basis for the
discharge, suspension, or demotion (e.g. – incompetence, neglect of duty, or
misconduct (as defined by Section 603 of The Code and Section II.A of
this Regulation)). The disciplinary hearing committee does not have authority
to render a decision or any part of a decision.
The chancellor has the authority to render the final decision.
1. Training. Because disciplinary
hearings in matters of the imposition discharge,
suspension, or demotion present complex
and difficult questions of fact, policy, and law, and because of the central
role of the disciplinary hearing committee in gathering and preserving the
evidence upon which a decision related to the matter will be based,
chancellors, in consultation with campus counsel, should ensure that disciplinary
hearing committee members have access to appropriate training materials and
that relevant administrators and aggrieved faculty members have access to
information regarding the disciplinary hearing process.
2. Election Procedures.
The faculty council or senate of each constituent institution should
consider whether to establish election procedures for the disciplinary hearing
committee to extend the length of service of appropriately trained committee
chairs, in order to make it more likely that each hearing has an experienced
member to oversee a disciplinary hearing committee. Election procedures may permit the
establishment of a pool of trained hearing committee members from which hearing
committee members and a chair may be drawn for each hearing.
3. Counsel. Each constituent institution must allow the
faculty member the opportunity to have counsel who is able to represent the
faculty member’s interests before the disciplinary hearing committee if the
faculty member so chooses. If an attorney will be representing the
faculty member during the hearing, then the campus should provide legal counsel
for the institution. Legal counsel for
the institution may be provided by in-house campus counsel, counsel from
another constituent institution, a member of the Attorney General’s Office, counsel
from the System Office, or outside counsel.
C. Preservation
of Evidence. It is essential that all testimony and other evidence received by
a disciplinary hearing committee be preserved for review by the parties to the
proceeding, the chancellor, and, if applicable, the board of trustees. Both
the chancellor, in making the final decision, and the board of trustees in
reviewing any appeal, must have access to a complete record of the evidence
received at the hearing. The chancellor is responsible for determining whether
the competent evidence in the record supports the proposed discharge,
suspension, or demotion. Similarly, the board of trustees, when
considering an appeal of the chancellor's decision, must be able to determine
whether the competent evidence in the record supports the chancellor’s
decision.
A professional court
reporter, or a similarly reliable means, should be used to enable the
production of a verbatim written transcript of the disciplinary hearing and to
maintain a record of the documents received by the disciplinary hearing
committee. Any such record shall be considered part of the faculty
member’s personnel file and is confidential.
Access to such materials is only allowable as provided by law.
D. The
Chancellor’s Decision. Following receipt of the hearing committee’s
written recommendations, the decision whether to discharge, suspend, or demote
the faculty member is the chancellor’s. The chancellor shall notify the faculty
member and relevant administrators of the chancellor’s decision in
writing. Notice of the decision is to be
conveyed to the faculty member by a method which produces adequate evidence of
delivery.
E. Notice of Appeal Rights. The chancellor's notice to the
faculty member of the decision must inform the faculty member: (1) of the
permissible grounds for appeal pursuant to Section 603 of The Code; (2) that the faculty member has 14 calendar days to file a notice of appeal through the
chancellor requesting review by the board of trustees as provided in Section
603(2)(b) of The Code; (3) that a written notice of appeal with a brief
statement of the basis for the appeal is all that is required within the 14-day
period provided in Section 603(2)(b) of The Code; and (4) that,
thereafter, a detailed schedule for the submission of relevant documents will
be established if such notice of appeal is received in a timely manner.
F. Time Limits for Appeal.
Requests for an appeal of the imposition of discharge, suspension, or
demotion shall be made within 14 calendar days from the faculty member’s
receipt of the chancellor’s decision in accordance with Section 603(2)(g) of The
Code.
III. Appeals to the
Board of Trustees
A. Schedule.
If the board, or committee of the board, determines that the faculty member has
set forth appropriate grounds for an appeal, the board will notify the parties
of a schedule for perfecting and processing the appeal. If the faculty member fails to comply with
the schedule established for perfecting and processing the appeal, the board
may extend the period for complying with the schedule for good cause shown or
it may dismiss the appeal. The board of trustees will issue its decision on
appeal as expeditiously as is practical.
B. Review
on Appeal by the Board of Trustees. Consistent with The Code, deference is given to the chancellor’s decision; the
board of trustees will exercise jurisdiction under Section 603 of The Code in a manner that assures the
integrity of campus procedures.
The first step in any
appeal to the board of trustees will be an evaluation by the board of trustees of
the written grounds for appeal to determine whether the issues raised on appeal
fall within one of the grounds for appeal as set out in this regulation and
Section 603 of The Code. If the appeal does not present issues that
fall within the established grounds for appeal, the board of trustees shall dismiss
the appeal without further proceedings.
The grounds for appeal to
the board of trustees are as follows:
1. Material
procedural error. A faculty member may allege on appeal that the hearing
conducted by the disciplinary hearing committee, or the process followed by the
institution included a material procedural error that, but for the error, could
have resulted in a different decision.
The board may review allegations that the disciplinary hearing committee
and/or the institution did not follow its own procedures and such failure
materially affected the credibility, reliability, and fairness of the process.
A faculty member must demonstrate that, because of a material procedural error,
he or she did not receive a fair hearing or fair review by the chancellor such that,
but for such error, a different decision may have been reached.
2. Clearly
erroneous. A faculty member may allege
on appeal that the competent evidence in the record established that the
decision to discharge, suspend, or demote was not based on a permissible
reason. A clearly erroneous decision is one that a reasonable person could not
have reached, based on the competent evidence in the record taken as a whole
and the relevant controlling laws or policies. To demonstrate that a
decision was clearly erroneous, the faculty member must show that a reasonable
person could not have reached the conclusion that the decision maker reached.
Such an appeal constitutes a request that the board of trustees review the
entire record of evidence to determine whether a reasonable person could have
arrived at the decision in question. The issue is not whether the board
of trustees would have evaluated the evidence the same way and reached the same
conclusion as did the hearing committee or the chancellor; rather, the question
is whether the decision reached was a reasonable one, in light of the competent
evidence in the record.
3. Contrary
to law or policy. A faculty member
may allege on appeal that, during the disciplinary hearing process, controlling
law or University policy was disregarded, misinterpreted, or misapplied to the
facts of the case.
During its review, the board
of trustees considers whether the procedures or decision had material
procedural errors, was clearly erroneous, or was contrary to controlling law or
policy, such that but for the error(s), the outcome would have been different.
In
reviewing whether a decision was clearly erroneous, the board of trustees
considers whether the evidence introduced at the hearing and reviewed by the chancellor
is such that a reasonable fact finder could find the applicable burden of
proof, clear and convincing, was met. When
conducting its review, the board of trustees does not reweigh the evidence,
express its independent judgment on the factual issues, determine credibility
of witnesses, or otherwise conduct the same review that would be conducted by
the chancellor. Instead, the board of
trustees views the record in the light most favorable to the judgment below and
decides if the evidence in support of that decision is reasonable, credible,
and of solid value, such that a reasonable fact finder could find that
discharge or serious sanction is appropriate based on clear and convincing
evidence. The appeal to
the board of trustees shall be decided by the full board of trustees.
After
review on appeal, the board of trustees may affirm the chancellor’s decision;
or, if the board finds that the procedures or decision had material procedural
errors, was clearly erroneous, or was contrary to controlling law or policy, such that but for the error(s), the
outcome would have been different, the board may, in its sole discretion, remand
the matter to provide for a new hearing or a supplemental review inquiry.
IV. Other Matters
A.
Effective Date. The requirements of this
regulation shall be effective for any discharge or serious sanction proposed on
or after August 1, 2023.
B. Relation to State
Laws. The foregoing regulations as adopted by the president are meant to
supplement, and do not purport to supplant or modify, applicable state law or
administrative regulations.