The UNC Policy Manual
101.3.1.2[R]
Adopted 07/01/19
I. The Purpose of the Review Process
under Section 604 of The Code
A. Within the University, important faculty personnel
decisions are based on evaluations of performance rendered by a candidate's
colleagues and supervisors, who are in the best position to make such
judgments. These assessments are not the product of mechanically applied
checklists, criteria, or formulas; there is no simple litmus test for
outstanding job performance. Rather,
these decisions must reflect careful exercises of discretion, in which the
faculty colleagues draw on their own academic knowledge, experience, and
perceptions to evaluate the candidate's qualifications and performance.
The academic review process seeks to obtain the collective good faith
professional academic judgment of the candidate’s colleagues and responsible
university administrators, as the basis for personnel decisions. These
decisions are entitled to great deference and weight and, as such, must be
based on considerations that are relevant to the candidate’s performance and potential
to contribute to the good of the institution.
B. The purpose of reviewing decisions not to reappoint is to
determine whether the decision was materially flawed, in violation of
applicable laws, policies, standards, or procedures. A review is not to second-guess professional
judgments based on permissible considerations. The purpose of the campus-based
review process in Section 604 C(1) of The
Code is to determine (1) whether the decision was based on considerations
that The Code provides are
impermissible; and (2) whether the procedures followed to reach the decision
materially deviated from prescribed procedures such that doubt is cast on the
integrity of the decision not to reappoint.
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, so as to raise questions about whether the faculty
member’s contentions were fairly and reliably considered; (2) the result
reached by the chancellor was clearly erroneous; and/or (3) the decision was
contrary to controlling law or policy.
II. Nonreappointment Decisions Under
Section 604 of The Code
A. Basis for
Review. A decision not to reappoint a faculty member may be made for any reason
that is not an impermissible reason. The three impermissible reasons for
a decision not to reappoint a faculty member, as stated in Section 604 B of The Code, are: (1) the exercise by the
faculty member of rights guaranteed by the First Amendment to the United States
Constitution, or by Article I of the North Carolina Constitution; (2) forms of
discrimination prohibited under policies adopted by the University; or (3)
personal malice. A faculty member who asserts that the decision not to
reappoint was based on impermissible reasons may file a request for review from
that decision in accordance with the procedure established by the constituent
institution.
B. Definition of
“Personal Malice.” As used in The Code,
the term “personal malice” means dislike, animosity, ill-will or hatred based
on personal characteristics, traits or circumstances of an individual that are
not relevant to valid University decision making. However, a faculty member’s inability or
incapacity to relate constructively to his or her peers, in a necessarily
collegial environment, may warrant a decision not to reappoint.
Disposition of such a case requires a determination as to whether the faculty
member’s lack of collegiality or other attitudinal considerations impeded the
faculty member’s job performance. While the terms “ill-will,” “dislike,”
“hatred,” and “malevolence” may connote different degrees of antipathy, such
distinctions make no difference in applying the fundamental rationale of the
prohibition. Any significant degree of negative feeling toward a
candidate based on irrelevant personal factors is an improper basis for making
decisions.
C.
Role of the Faculty Committee. The
primary role of a faculty committee is to provide, through the established
campus process, the opportunity for a formal hearing to review the decision not
to reappoint. Such faculty committees provide an opportunity for both parties
to present relevant evidence and provide a recommendation to the chancellor on
the merits of the faculty member’s contentions. The faculty committee
creates a clear, permanent record of the evidence presented at the hearing and
advises the chancellor whether or not the faculty member has demonstrated, by a
preponderance of the evidence, that the decision not to reappoint was
materially flawed or was based in significant part on an impermissible reason. The faculty member has the burden of proof. The faculty 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 hearings in matters of
non-reappointment can present complex and difficult questions of fact, policy,
and law, and because of the central role of the faculty committee hearing in
gathering and preserving the evidence upon which decisions related to the
matter will be based, chancellors, in consultation
with campus counsel, should ensure that faculty committee members have access
to appropriate training materials and that relevant administrators and
aggrieved faculty members have access to information regarding the hearing process.
2. Election
Procedures. The faculty council or senate
of each constituent institution should consider whether to establish election
procedures for the faculty committee so as 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 faculty committee. Election
procedures may permit the establishment of a pool of trained faculty from which
hearing committee members and a chair may be drawn for each hearing.
3. Counsel. Each
constituent institution must decide whether to allow faculty members to have
the assistance of an attorney or other advisor at the hearing and, if so,
whether the advisor is permitted actively to participate in the hearing.
Constituent institutions are discouraged from allowing attorneys to participate
during the hearing. If, however, an attorney will be permitted to
participate during the hearing on behalf of the faculty member, then the campus
should provide legal counsel for the respondent administrator. Legal counsel for the respondent
administrator may be provided by in-house campus counsel, counsel from another
constituent institution, a member of the Attorney General’s Office, or outside
counsel.
D. Preservation
of Evidence. It is essential that all
testimony and other evidence received by a faculty 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 faculty committee’s recommendation. Similarly, the board of
trustees, when considering an appeal from a 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 hearing and
properly to maintain a record of the documents received by the faculty
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.
E. The
Chancellor’s Decision. The chancellor must base his or her decision on a
thorough review of (1) the record evidence from the hearing, and (2) the recommendation
of the faculty committee. While the chancellor should give appropriate
deference to the advice of the faculty committee, the final decision is the
chancellor’s. If the chancellor is considering taking an action that is
inconsistent with the recommendation of the hearing committee, the chancellor
should consult with the hearing committee, either in person or in writing,
before making a decision. The chancellor shall notify the faculty member and
relevant administrators of the chancellor’s decision in writing. In addition, the notice of the decision is to
be conveyed to the faculty member by a method which produces adequate evidence
of delivery.
F. Notice of Appeal
Rights. The chancellor's notice to the faculty member of the decision
concerning the faculty member's case must inform the faculty member: (1) of the
permissible grounds for appeal; (2) of the time limit within which the faculty
member may file a notice of appeal through the chancellor requesting review by
the board of trustees; (3) that a simple written notice of appeal with a brief
statement of the basis for the appeal is all that is required within the 14-day
period; 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.
G. Time Limits for
Appeal. The campus policies, faculty
handbook, or other informational document which addresses procedures for review
of faculty nonreappointment decisions shall indicate the time limits for appeal
of such decisions.
III. Appeals
to the Board of Trustees
A. Schedule. If 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 604 C
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 of the
faculty member's written grounds for appeal to determine whether the issues
raised on appeal fall within one of the three grounds for appeal as set out in
this regulation and Section 604 of The
Code. If the appeal does not present issues that fall within the
established grounds for appeal, the board may dismiss the appeal without
further proceedings.
The three 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 responsible faculty committee or the process
followed by the chancellor included a material procedural error that, but for
the error, could have resulted in a different decision. The Board may review
allegations that the faculty committee and/or the chancellor 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 not to reappoint was based on an
impermissible 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 chancellor
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 faculty committee or the chancellor; rather, the question
is whether the decision reached was a reasonable one, in light of the competent
evidence.
3. Contrary to law or policy. A faculty member may allege
on appeal that, in disposing of the request for review, 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
campus-based process or decision had material procedural errors, was clearly
erroneous, or was contrary to controlling law or policy.
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, preponderance of the evidence, was met by the faculty member. 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 nonreappointment is
appropriate based on a preponderance of the evidence.
After review on appeal, the board of trustees may affirm the
chancellor’s decision; or, if the board finds that the campus-based process or
decision had material procedural errors, was clearly erroneous, or was contrary
to controlling law or policy, the board may remand the matter to the chancellor
to provide for a new hearing or a supplemental review inquiry. The remedy
available on appeal is never an award by the board of trustees of the conferral
of tenure, reappointment or promotion.
IV. Other
Matters
A. Effective Date. The requirements of this regulation shall be effective for any non-reappointment decision effective on or after July 1, 2019.
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, those statutory
enactments which may govern or relate to faculty personnel decisions.