Procedures of the Faculty Rights Board for Hearing Appeals in Cases Involving Administrative Action of Dismissal of a Tenured Faculty Member

Hearing Procedures for Cases of the Dismissal of Tenured Faculty 

Section 1.

As a condition precedent to the institution of hearing proceedings before the Faculty Rights Board (hereafter referred to as the FRB), the mediation procedures set forth in Section II Informal Settlement, Including Mediation of the Procedures of the Faculty Rights Board for Hearing Appeals from Administrative Actions shall first be exhausted. The faculty member shall notify the Provost within two weeks after the termination of mediation procedures of the faculty member's desire to insist upon the formal hearing before the FRB.

Section 2.

After such notification, the Provost shall dispatch to the faculty member and the chairperson of the FRB identical copies of a formal communication containing the following:

1. A statement of the Charge or Charges relied upon (i.e., incompetence or moral turpitude), set forth in plain and descriptive English, and
2. A detailed summary of the evidence upon which the Charges are based, and
3. A first list of witnesses to be called (the names of other witnesses to be communicated when they become known), and
4. A copy of the pertinent Kansas statutes and University regulations that govern the faculty member’s procedural and substantive rights, specifically including but not being limited to relevant (a) statutes, (b) by-laws and rulings of the Kansas State Board of Regents, (c) faculty legislation, including (d) statements concerning the proper composition procedures and powers of the FRB, and
5. A statement that the FRB shall conduct a hearing on the Charges, and
6. A statement that the time and place of the hearing shall be set by the FRB, and shall be communicated to the faculty member, and shall be such as shall allow the faculty member adequate opportunity to prepare a defense, normally not less than five weeks, nor more than eight weeks from notification of the hearing date, and
7. A formal invitation to the faculty member to attend the hearing, accompanied by academic advisers and legal counselors of the faculty member's choice.

Section 3.

Separate copies of the Statement of Charges shall be sent to the American Association of University Professors and to any other appropriate professional organizations. If the faculty member has no objections, formal invitations to send an observer to the hearing shall be issued by the FRB to the AAUP and to any other appropriate professional organization.

Section 4.

Not less than two weeks before the date set for the hearing, the faculty member shall submit to the Provost and to the FRB a written Answer to the Charges, containing the following:

1. A detailed summary of the evidence to be used to respond to the Charges and
2. A first list of witnesses to be called (the names of the other witnesses to be communicated when they become known).

If the faculty member does not desire a hearing, the faculty member shall so state in writing to the Provost and the FRB.

Section 5.

In order to avoid unnecessary testimony and submission of documents, the chair of the FRB shall call a meeting of the parties not less than one week before the hearing, at which the parties shall make a good-faith effort to state what each is prepared to stipulate.

Section 6.

Prior to the hearing a copy of the Answer shall be sent to each of any professional organizations that have been sent copies of the Statement of Charges, or each of them shall be informed that the faculty member does not desire a hearing to be held.

Section 7.

If any evidence is tendered during the hearing to which objection is made on the ground that it is not within the issues raised by either the Statement of Charges or the Answer, the FRB may allow either the Statement or the Answer to be amended, and shall do so freely, especially when the presentation of the substantive issues will thereby be facilitated. Whenever an amendment has been allowed at the instance of one party, and the other party so requests, the FRB shall grant the objecting party a reasonable time within which to prepare the objecting party's case on the new issue or issues that have been raised and to meet the evidence tendered.

Section 8.

If a faculty member fails to answer the Provost’s Statement of Charges, or if the faculty member states that the faculty member does not desire a hearing to be held, the FRB shall consider whether the alleged grounds constitute adequate cause for dismissal, and the FRB may, in its discretion, (a) request the Provost to present proof of the Charges and (b) independently investigate their truth. Ultimately, the FRB shall forward a statement of its decision on each of the Charges, and on the case as a whole, to the Provost and to the faculty member, and shall place at least one copy in the University Archives. All documents, including but not limited to the Provost’s statement of charges and the FRB’s decision, shall be treated as personnel records, and not disclosed by the parties except as required by law.

Section 9.

The FRB’s decision on the cases of Section 8 above shall be final and binding, and the case shall be deemed closed, unless either the Provost or the faculty member seeks to appeal to the Chancellor.

Section 10.

If the faculty member submits an Answer to the Statement of Charges as contemplated in Section 4, then the following procedures shall apply:

1. The Provost or the faculty member each may by written request to the chairperson of the FRB ask, at least two weeks before the date set for the hearing, that no more than two named members of the FRB be disqualified because they are biased or prejudiced or have a personal interest in the case or its outcome. After providing an opportunity to appear and be heard, the FRB shall determine whether cause for the requested action has been shown, and this determination shall be made at least three days prior to the start of the hearing. If cause is found, the regular members of the FRB who have been challenged shall be replaced by other members of the Faculty Senate chosen by the Faculty Senate Executive Committee.

   If cause is not found, but the challenging party disagrees with the FRB’s decisions, the challenging party can appeal to the Faculty Senate Executive Committee for a review of the decision. The appeal must be made within 24 hours of the decision. The Faculty Senate Executive Committee must respond within one week of the appeal, either by affirming the decision of the Faculty Rights Board or by reversing it and providing a substitute member (or members) acceptable to both parties. In the event an appeal is made, the FRB shall reschedule the hearing for a date no later than two weeks from the original hearing date.

2. When the membership of the hearing panel has been determined, the FRB chairperson shall write to the department chairpersons or school deans of hearing panel members, asking that the University/School/ Department obligations of hearing panel members be reduced, if possible, for the duration of the hearing. The FRB chairperson shall also advise those responsible for merit raise decisions affecting the salaries of hearing panel members of the extraordinary service obligation of hearing panel service.
3. The faculty member may, at least one week before the hearing is scheduled to begin, indicate to the chairperson of the FRB the desire that the hearing shall be (a) public or (b) private, and the chairperson shall grant the request. However, if the faculty member fails to indicate a preference, the hearing shall be private. Material introduced into evidence in a private hearing shall be designated as confidential, if either the Provost or the faculty member so requests in writing.
4. Under exceptional circumstances, the FRB has the authority to order parts of the hearing closed.
5. The Provost, the faculty member, and their respective academic advisers and legal counselors all shall have the right to be present at the hearing at all times, as shall any observer sent by a professional organization in response to a formal invitation.
6. The hearing shall proceed in the following order: The submission of (a) evidence by the Provost in support of the Statement of Charges; (b) evidence by the faculty member in support of the Answer; (c) rebuttal evidence by the Provost; (d) rebuttal evidence by the faculty member; and (e) closing arguments. However, in rare cases, if the FRB believes that a clearer or more efficient way of exploring the issues can be achieved by varying this normal order of proceeding, it may so order with the agreement of all parties to the charges.
7. The testimony of witnesses and other evidence shall be received by the FRB; however, except where hearsay evidence is resorted to in accordance with Section 10.6, any testimony on which the opposing party is not afforded a reasonable opportunity for cross-examination shall be stricken from the record of the hearing. If a witness is otherwise unavailable, testimony by telephone may be accepted by the FRB subject to the same conditions as testimony presented by witnesses in the presence of the FRB. The rules of evidence applicable in courts of law shall not be binding at the hearing, but may be consulted by the FRB at its discretion. For urgent and unusual reasons, affidavits taken outside the hearing may also be accepted by the FRB. In such cases, each side shall provide to the other the identity of witnesses and copies of statements one week prior to their presentation so that rebuttals can be made. All the evidence shall be duly recorded.

   Both parties, their representatives, and the FRB shall have the right to request the appearance of and to question all witnesses. The FRB may request and the parties may present other evidence relevant to the issues of the hearing. The University shall render all reasonable assistance to the faculty member, and to advisers and lawyers, to obtain information and to require the presence of witnesses and the production of evidence relevant to the issues of the hearing. If the faculty member requests access to information not otherwise disclosed by the administration, reasonably describing the kind of information desired, the administration will make it available to the faculty member if it is not privileged.

8. In the event the faculty member, through no fault of the faculty member, is unable to obtain information or the presence of witnesses or the production of evidence within the University of Kansas community relevant to the issues of the hearing that the faculty member considers indispensable to the proof of the case, the FRB shall make every reasonable effort to assist the faculty member in obtaining such information, presence of witnesses, or production of evidence. If the FRB’s efforts are to no avail, it may take into account the faculty member’s statement as hearsay evidence of what such testimony or evidence would have been if it had been available.
9. The FRB, in its discretion, may exclude a witness from the hearing room except whilethe witness is testifying.
10. If professional incompetence has been charged, the following procedures shall be followed, unless the FRB determines that extraordinary circumstances in an individual case require deviation therefrom in whole or in part. There shall be admitted as evidence, in addition to individual testimony, a formal report on the work of the faculty member by colleagues in the faculty member's department and in cognate departments of the University; and if the faculty member so requests, there shall be admitted as evidence a report by a committee of fellow specialists from other institutions, selected by agreement between the faculty member and departmental colleagues; and, if the Charges include incompetence in the classroom, testimony from students who have been taught by the faculty member may be received, as may testimony from colleagues who have visited the faculty member’s classes (this, in addition to the formal report alluded to above) and from the faculty member. 

    Any judgment by the FRB on the point of professional incompetence must be restricted to, and based upon, evidence delimited above, and cannot properly rest upon any other considerations. When extraordinary circumstances exist, the FRB shall set forth in writing its reasons for failing to follow normal procedures.

11. In its discretion, the FRB may proceed independently to secure the presentation of evidence at the hearing, and it may direct the parties, or either of them, to produce evidence on specific issues that it deems significant.
12. The principle of confrontation and full examination of the evidence shall prevail throughout the hearing.
13. The burden of proving the charges shall rest on the Provost, and the burden of proving a Charge must be sustained by clear and convincing evidence in the record considered as a whole.
14. A verbatim record of the proceedings shall be made. The record may be made by a recording device or by a stenographic reporter, at the sole discretion of the FRB. A full transcript of the proceedings shall be furnished the FRB and the parties. In the event the record is made by a recording device, it shall be sufficient if the FRB and the parties are furnished the original recording or duplicates thereof in lieu of a written transcript. The cost of making the record and the transcriptions shall be borne by the University.
15. The FRB shall not be bound by the formal procedure of the law courts, including the rules related to the admissibility of evidence.
16. In its discretion, the FRB may adjourn the hearing from time to time in order to permit the parties to obtain further evidence.
17. The FRB may request written briefs from the parties, and shall accept them if they are offered.
18. The FRB shall not be bound by any specific statute of limitations.
19. The FRB should conclude the hearing expeditiously. Only under unusual circumstances should the hearing extend past the conclusion of a semester.

Section 11.

The FRB shall defer its decision until the verbatim record of the hearing has become available, except in a case where the FRB believes that it can render a just decision in the absence of a verbatim record. In all cases, the FRB shall render its decision in the full light of the requirement that the burden of proof of the charges rests upon the party bringing them.

Section 12.

All the decisions of the FRB shall be based solely upon the record of the hearing. Should the FRB conclude that adequate cause for dismissal has not been established but that a sanction less than dismissal would be appropriate, it will so recommend, with supporting reasons.

Section 13.

The FRB shall make specific findings of fact to support its conclusions on each of the alleged grounds for dismissal. A copy of the FRB’s opinion, setting forth its disposition of each issue in the case together with the reasons by which it justifies its conclusions, shall be made available to each of the parties, and to any observer who was sent to the hearing by a professional organization in response to a formal invitation, at the time when the FRB announces its decision in the case, and at least one copy shall be filed at that time in the University Archives. When the hearing was public, the FRB’s decision shall be available to the public. Documents in the University Archives related to hearings under these proceedings are personnel records and shall not be disclosed by the parties except to the extent required by law.

Section 14.

The FRB’s decision on the cases of Section 13 above shall be a recommendation to the Chancellor and the Chancellor shall make the final and binding decision. The decision of the Chancellor will be transmitted to the parties and to the Faculty Senate Executive Committee as the University’s final agency action.