Procedures of the Faculty Rights Board for Hearing Appeals From Administrative Actions
These procedures establish the process for appeals by faculty members from administrative actions that involve faculty rights, responsibilities and conduct.
Faculty of the University of Kansas, Unclassified Academic Staff who hold Faculty equivalent rank.
The Faculty Rights Board (Board) has jurisdiction, as provided in Article XIII, section 3, of the University Senate Code, to consider appeals by faculty members from administrative actions that involve faculty rights, responsibilities and conduct. (FSRR 7.3.1)
B. Nature and Scope of Procedures
1. The Board’s written procedures, which appear below, govern appeals within the Board’s jurisdiction, except for appeals from denial of promotion and tenure. When an appeal concerns a denial of promotion and tenure, it is governed by FSRR Article VI, section 8. (FSRR 7.3.2).
2. Through its procedures, the Board provides for timely disposition of appeals, although it may extend deadlines in particular cases for good cause. (FSRR 7.3.1)
3. Because the Board’s procedures must be available publicly in written form (FSRR 7.3.2 (1)), they are to be maintained in a public file for reference at the University Governance Office and are to be available on the Internet in the same manner as the University’s governance policies and rules and regulations.
C. Conditions for Appeals
1. The grounds for an appeal to the Board are limited to allegations that action by an administrative authority violated established University procedures and adversely affected faculty rights. (FSRR 7.3.2 (3)) Administrative authorities include tribunals formed within the University to hear and rule on faculty grievances. (FSRR 7.3.2 (3))
2. Generally, an appeal must be in writing and must be received by the Board within fourteen (14) days of the administrative action being appealed. (FSRR 7.3.1) However, a different time limit applies for appeals of administrative actions involving sexual harassment of a student by a faculty member. In such cases, the United States Department of Education Office for Civil Rights has mandated that universities must fully resolve such complaints timely not to exceed sixty (60) days of first learning of the allegation(s) absent compelling circumstances. Accordingly, in such cases a faculty member’s appeal must be received within seven (7) days of the administrative action being appealed.
3. In appeals from notice of non-reappointment, the Board’s recommendation on any such appeal shall be forwarded to the Chancellor no later than April 30 each year.
4. In no event will an appeal that has been filed be continued into another academic year.
Confidential treatment shall be given to matters that are at issue in an appeal. Before a hearing, the Board members may not discuss the facts or issues in the case with a party, unless the Chair first notifies the opposing party and provides an opportunity for the opposing party to be present. In addition, Board members may not discuss the facts or issues in the case with any non-party except to the extent that doing so may be authorized by applicable rules and regulations and with notice to both parties prior to any discussion. (FSRR 7.3.2 (7))
E. Role of the Chair
To the extent that the Chair of the Board makes decisions under these procedures, he or she is to do so in consultation with other members of the Board.
A. Alternative Resolution
Members of the University community are encouraged to resolve disputes informally if possible. The means of resolving disputes informally within the University community include mediation; the Office of University Governance and the Office of the University Ombuds maintain a list of mediators within the University and can provide assistance in exploring informal dispute resolution opportunities. However, in accordance with the guidance provided by the Office for Civil Rights, mediation shall not occur in cases alleging sexual harassment. A faculty member also may request conflict resolution services from the University’s Department of Human Resources and Equal Opportunity.
1. Before or after filing an appeal, the appellant may engage with the respondent in exploring alternative means for resolving their dispute. They may agree to an informal settlement, including mediation. (FSRR 7.3.2)
2. If the appellant and the respondent undertake to resolve the dispute informally, they are responsible for taking steps they deem necessary to protect their own rights. At the same time, the appellant should keep the Board Chair informed about the effort to resolve the dispute informally.
3. Even as the parties engage in the dispute resolution effort, the Board shall follow its procedures and timetable for processing the appeal. The parties shall meet the requirements for filing and responding to an appeal, taking necessary pre-hearing and hearing actions and complying with all applicable time limits.
A. Written Statement
1. To initiate an appeal, the appellant must state in writing the grounds for the appeal and the basis for the jurisdiction of the Board. (FSRR 7.3.2 (3)) The grounds for an appeal are limited to allegations that action by an administrative authority violated established University procedures and adversely affected faculty rights. (FSRR 7.3.2 (3)) Administrative authorities include tribunals formed within the University to hear and rule on faculty grievances. (FSRR 7.3.2 (3))
2. The appeal must:
a. identify the administrative authority that took the action, whether it is a University official or an administrator or tribunal that allegedly violated faculty rights;
b. identify the disciplinary or other administrative action that allegedly violated faculty rights, or the action by a tribunal—such as a hearing panel formed by an academic unit—that allegedly violated faculty rights;
c. allege that the administrative authority violated established University procedures and specify the procedures;
d. assert that a violation of faculty rights occurred because of the alleged procedural violation and specify the rights;
e. assert facts that underlie the appeal and describe the circumstances that led up to the alleged procedural violation;
f. attach any documents that relate to the administrative action being challenged or that support the alleged violations asserted in the appeal; and
g. identify any witnesses who the faculty member knows possess information that support the alleged violations, providing a statement of each witness’s information.
B. Time Limit
Generally, the appellant must file the written statement with the University Governance Office within fourteen (14) days of the administrative action that is the subject of the appeal. (FSRR 7.3.2 (3)) However, a different time limit applies for appeals of administrative actions involving sexual harassment of a student by a faculty member. In such cases, the United States Department of Education Office of Civil Rights has mandated that universities must fully resolve such complaints timely not to exceed sixty (60) days of first learning of the allegation(s) absent compelling circumstances. Accordingly, in such cases a faculty member’s appeal must be received within seven (7) days of the administrative action being appealed.
In appeals from notice of non-reappointment, the Board’s recommendation on any such appeal shall be forwarded to the Chancellor no later than April 30 each year.
In no event will an appeal that has been filed be continued into another academic year.
C. Burden of Establishing Jurisdiction for Appeal
The burden is on the appellant to demonstrate in the appeal that sufficient grounds exist to invoke the jurisdiction of the Faculty Rights Board. Conclusory statements that a faculty member’s rights have been violated or that a procedural violation has occurred are insufficient. Instead the appeal must provide sufficient factual information to demonstrate the alleged violations and claimed prejudice resulting from the alleged violations.
The appellant is responsible for providing a copy of the appeal, along with supporting documentation, to the opposing party and any other parties to the dispute at the same time the appeal is filed with University Governance. The Chair will verify that the appellant has fulfilled the responsibility to provide a copy.
E. Additional Information
On behalf of the Board, the Chair may determine that an appellant’s written statement is not sufficient, such as in alleging violations or making factual assertions. In that event, the Chair may request additional information from the appellant, such as specification of the grounds for the appeal. The appellant must respond to a request for additional information within seven (7) days. (FSRR 7.3.2 (4))
A. Timing of Response
The opposing party shall have a reasonable opportunity to respond. (FSRR 7.3.2 (3)) Following receipt of the appeal, the opposing party generally shall have fourteen (14) days to file a written response in the Office of University Governance. However, in appeals from administrative actions involving sexual harassment of a student, the opposing party shall have seven (7) days to file a written response with the Office of University Governance. The Chair may extend these time limits upon the request of the respondent if the Chair determines that additional time is needed to provide a fair opportunity to respond to the allegations in the appeal. Any such extensions will not change the time limits for concluding appeals stated in section III.B of these procedures.
1. The written response should indicate whether the respondent admits or denies the allegations and factual assertions in an appeal, provide any additional facts or relevant information, and identify any defenses to the alleged violations or grounds for appeal
2. The response should identify the evidence and witnesses relied on by the respondent and include copies of any relevant additional documentation omitted from the initial appeal.
3. The respondent must provide a copy of the response, along with supporting documentation, to the appellant and any other parties to the dispute. The Chair will verify that the respondent has fulfilled the responsibility to provide a copy.
On behalf of the Board, the Chair may request additional information from either party for a fair and accurate resolution of the dispute. The Chair will provide notice to the parties of any such request and provide to them copies of, or access to, any information received.
The Board may dismiss an appeal in accordance with the grounds and requirements listed in USRR 6.5.3 for dismissal of grievances by the Judicial Board. (FSRR 7.3.2 (4)) Like the Chair of the Judicial Board under USRR 6.5.3, the Chair of the Faculty Rights Board, after consulting with members of the Board, may dismiss an appeal without a hearing. An appeal that does not meet requirements set forth in section III. Initiation of an Appeal, above, is a type that may be dismissed without a hearing. The Faculty Rights Board also may dismiss an appeal if the appellant fails to provide information requested by the Board within seven (7) days of the Board’s request. (FSRR 7.3.2 (4)) When the requested information is not received by the Board within seven (7) days, the Chair, after consulting with Board members, may dismiss the appeal.
C. Disposition Without A Hearing
On review of the written information filed in the appeal, the Board may decide that it possesses sufficient information in the written record to make a decision without a hearing. In such appeals, the Board generally will issue its decision and recommendations within forty-five (45) days of the appeal being filed absent good cause for an extension of time. However, in appeals from a notice of non-reappointment the Board’s decision and recommendation will be submitted to the Chancellor by April 30, and in appeals from administrative actions involving sexual harassment of a student by a faculty member, the Board’s decision and recommendation will be issued within twenty-one (21) days of the appeal being filed.
The Board may initiate a hearing, if one is deemed necessary, within forty-five (45) days of the appeal being filed absent good cause for an extension of time. (FSRR 7.3.2 (5)) However, if the appeal is from an administrative action involving sexual harassment of a student, then the hearing will be scheduled within such time as to allow for the Board to issue its decision and recommendation within twenty-one (21) days of the appeal being filed; and if the appeal involves a notice of non-reappointment, then the hearing will be schedule within such time as to allow for the Board to issue its decision and recommendation by April 30.
If the Board has determined that the allegations in the appeal are sufficient and that a hearing consequently is warranted, the hearing shall serve as a fair opportunity for the appellant and opposing parties to present their cases and arguments before the Board. (FSRR 7.3.2 (4)) The Board’s notice to the parties scheduling a hearing shall identify for the parties the specific questions or issues raised in the appeal which the Board has determined are not sufficiently addressed in the written record and on which the Board wishes to hear testimony or evidence at hearing.
The Chair may arrange a conference with all parties to discuss the handling of the case, preliminary evidentiary or procedural issues, and the scheduling and conduct of the hearing.
C. Rulings on Conduct of Hearing
Before a hearing, the Chair may make determinations or rulings as appropriate to promote the fair and efficient conduct of the hearing, including the exclusion of issues, arguments, or evidence that is not relevant or material to the case. The Chair may direct that testimony be limited after determining the extent to which the written record on appeal addresses the issues in the appeal and are not materially in dispute. Before excluding any issues, arguments, testimony or evidence, the Chair shall afford the parties an opportunity to object and state their reasons for objecting in writing. These pre-hearing matters shall be ruled on and determined within fourteen (14) days after the Board has received the opposing party’s response to the appeal, unless the Chair finds that good cause exists o extend the time. Pre-hearing matters and extensions of the time limit for resolving them will not change the time limits for concluding appeals stated in section III.B. of these procedures.
At a hearing, the evidence and testimony considered by the Board shall be limited to how the administrative authority’s action violated established University procedure and how the alleged violation adversely affected the faculty member’s established rights. (FSRR 7.3.2 (4))
The Board shall not conduct a hearing to review factual issues that are not disputed or are not material to the dispute. (FSRR 7.3.2 (4))
At a hearing, the burden is on the appellant to prove the allegations and assertions that he or she has made to the Board. (FSRR 7.3.2 (6)) The appellant’s proof is to consist of clear and convincing evidence (FSRR 7.3.2 (6)). In particular, the appellant’s burden is to prove, by clear and convincing evidence, that there has been a violation of established University procedures and that the violation adversely affected an established faculty right. (FSRR 7.3.2 (6))
F. Closed and Open Hearings
1. A hearing shall be closed to the public if it requires consideration of confidential personnel matters. (FSRR 7.3.2 (8)) The Board may make an exception, however, if the individual or individuals whose confidential information is involved request in writing that the hearing be open to the public. (FSRR 7.3.2 (8))
2. A party who prefers that the hearing be open must give written notice to the Chair and the opposing party when the Chair contacts the parties to schedule the hearing. The Chair may allow the parties up to five (5) days to reach agreement on whether the hearing will be open. If either party objects to an open hearing, the hearing will remain closed. If they agree that the hearing will be open, their agreement must be in writing, and the Chair must enter it into the written record of the appeal.
G. Scheduling and Conduct of Hearings
1. The Chair will schedule the hearing in consultation with the parties and the other members of the Board, allowing a reasonable opportunity for the parties to be present and to prepare for the hearing. The burden is on the parties to accommodate their schedules if necessary to find a time for the hearing that allows all members of the Board to attend. The hearing shall begin within forty-five (45) days of the date that the appeal was filed, unless the Chair extends the time for good cause and provides reasons for the delay of the hearing to the parties. Any such extension will not change the time limits for concluding appeals stated in section III.B. of these procedures.
2. If evidence is to be presented, the parties or their representatives shall have the opportunity to present the testimony of witnesses and to cross examine witnesses presented by the other parties. The formal rules of evidence do not apply, but the Chair may exclude evidence or testimony if it is irrelevant or otherwise improper. Witnesses will swear or affirm their testimony, and providing false testimony to the Board is a form of academic and professional misconduct that is subject to sanction. Whether or not evidence is to be presented, the parties or their representatives will also be afforded the opportunity to argue their positions to the Board
3. Although the parties have primary responsibility for questioning witnesses and presenting arguments, the members of the Board may ask questions of witnesses or parties.
4. During a hearing, the Chair has the authority to make necessary rulings for the conduct of the proceedings, including the exclusion of evidence or arguments, the impositions of reasonable time limits, and similar action. When necessary, the Chair may exclude any person, including a party, if he or she continues to disrupt the hearing after having been warned to cease disruptive behavior.
H. Electronic Recording
A hearing shall be electronically recorded. (FSRR 7.3.2 (9)) The recording shall be made by a tape recorder or other device that will provide a true and accurate record, a copy of which shall be provided to either party upon payment by the party of the costs of reproduction.
After a hearing, the Board will deliberate confidentially.
B. Deliberation and Vote
After a hearing, the Board shall deliberate and determine, by majority vote, whether the appellant has proved by clear and convincing evidence that the administrative action violated established University procedure and whether the violation adversely affected an established faculty right. (188.8.131.52)
1. A written decision stating the conclusions of the Board and the reasons for them, as well as any recommended actions to be taken, shall be provided to the parties, the Provost, the Chancellor, and any other administrative officials involved in the case no later than fourteen (14) days after the hearing is completed. (184.108.40.206)
2. The Board’s written decision shall include specific findings of fact regarding contested factual issues, explain how the Board interpreted and applied relevant laws, regulations, rules or policies, and articulate the basis for its conclusions regarding whether a violation of established procedures occurred. The decision shall also include recommendations concerning appropriate actions to be taken in light of its findings and conclusions, which may be addressed to the parties or other responsible individuals.
3. The decision of the Board constitutes a recommendation to the Chancellor, who has the final authority and responsibility for personnel decisions within the University, or to the Provost when the Chancellor has delegated such authority to the Provost. The Chair of the Board may respond to inquiries from the Chancellor or Provost to clarify the basis or intent of the Board’s decision and recommendations. After review of the recommendation and supporting documents, the Chancellor, Provost, or other administrative official shall provide timely written notice of the final decision to the parties and to the President of the Faculty Senate and the Chair of the Board. There is no appeal within the University from the decision of the Chancellor. (220.127.116.11)
4. A copy of the written decision will be provided to the parties, the Chancellor, the Provost, and any other administrative officials involved in the case.
Members of the Board will maintain the confidentiality of the proceedings and records unless the parties waive confidentiality. Board members, however, may obtain confidential assistance from the administrative staff of the Office of University Governance. Hearings involving confidential personnel matters or other matters required to be kept confidential by law or University regulation, rule, or policy are closed to the public.
B. Construction and Application
These procedures will be construed and applied in accordance with the procedural guarantees specified in Article XIV, section 2 of the University Senate Code and relevant provisions of University Senate Rules and Regulations (USRR) and Faculty Senate Rules and Regulations (FSRR).
The above procedures do not apply to Appeals from Tenure and Promotion Decisions, and hearings on dismissal of Tenured faculty.
Violations of these procedures by parties to an appeal may result in appropriate action by the Faculty Rights Board, including an adverse decision on the appeal. Violations of procedures by the Faculty Rights Board may be taken into consideration by the Chancellor when evaluating a recommendation of the Board. Violation of some provisions of these procedures, such as confidentiality requirements, may constitute academic or professional misconduct that is actionable pursuant to other university policies.
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Recommended by the FRB on 3/31/11;
Revised and approved by FacEx on 5/3/11
Approved by the Faculty Senate on 5/5/11
Approved by Provost September 2, 2011
Approved by Chancellor September 14, 2011
March 8, 2016, updated Item 1. A. Jurisdiction, Article XV, has been changed to Article XIII. these changed due to the merging of the University Support Staff and Unclassified Staff Senates.