4.36 Due Process
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I. Policy

 

When, in accordance with the College's Policy 4.38 III. B. c.,  policies, it is necessary to propose dismissal of an employee during the term of any employment contract or to propose during the term of an extendible or improvement contract that no additional contract be issued, the affected employee may exercise the right to a hearing.  an exempt employee has received notification of recommendation for the employee's dismissal, or notification of the College's refusal to grant the employee an additional extendible or improvement contract, that employee has the option to exercise his or her right to a Due Process hearing and have the recommendation be considered by an Academic Rights and Responsibilities Panel. 

 

II. Procedure

 

A. The employee's immediate administrator and the responsible dean or manager, as applicable, shall make their recommendation to the unit vice president that the employee be dismissed or that the College refuse to grant an additional extendible or improvement contract. Any recommendation to the unit vice president of dismissal during the term of an employment contract shall be accompanied by a further recommendation as to whether the employee should be suspended with or without pay, pending the final decision on dismissal. The foregoing recommendations shall state the grounds for the proposed actions, and a copy of the recommendations shall be forwarded to the affected employee.

 

B. Within ten work days after receipt of the recommendations, the unit vice president shall schedule and conduct an informal conference to be attended by the affected employee, the immediate administrator, and the responsible dean or manager. The unit vice president shall ascertain that the affected employee has received a copy of the recommendations and shall afford the employee an opportunity to address the matters set forth in the recommendations. The unit vice president may make any such inquiries of either the affected employee or the involved administrators as may be deemed appropriate.

 

The unit vice president shall determine whether the grounds cited by the involved administrators warrant further action by the College. If the unit vice president determines that further action by the College is warranted, the unit vice president shall, within ten work days following the informal conference, so advise the affected employee by certified letter specifying the effective date of the action.  The letter shall also inquire as to whether the affected employee elects for the involved administrators' recommendations to be considered by the Academic Rights and Responsibilities Panel as specified within this policy.

 

If within 10 work days after notification by the unit vice president the affected employee does not elect such a hearing, then the unit vice president, after reviewing the recommendations and the facts presented during the conference, shall recommend to the President whether the administrators' recommendation be implemented. If the affected employee elects a hearing before the Academic Rights and Responsibilities Panel, the unit vice president shall within three work days so notify the Panel's presiding officer.

 

In such event, and where dismissal has been recommended, the unit vice president also shall make a decision upon any recommendation that the affected employee be suspended with or without pay, pending the final decision of the dismissal issue. If it is finally decided that the employee is not to be dismissed, the employee shall be entitled to receive any pay which has been withheld and shall be reinstated without loss of status or benefits. In any event, suspension without pay shall not exceed 90 work days.

 

C. The Academic Rights and Responsibilities Panel shall consist of five members as follows:

 

1. The Executive Assistant to the President - Presiding Officer.

 

2. The Associate Vice-President of Human Resources .

 

3. The President of the College Senate.

 

4. Two employees to be selected for the particular hearing jointly by the Presiding Officer and the President of the College Senate.

 

No member of the Panel shall have any personal interest or be directly or indirectly involved in the matters under consideration.  The Panel shall appoint a substitute member when necessary.

 

III. Due Process Procedure

 

A.  Within ten five work days after receipt of the request for a by the involved employee, hearing  , the Presiding Officer of the Academic Rights and Responsibilities Panel shall cause the necessary appointments to the Panel to be made and scheduled  the Executive Assistant to the President shall make the necessary appointments to an Academic rights and Responsibilities Panel, and give notice of the hearing.

B.   The Academic Rights and Responsibilities Panel shall consist of five members plus the Executive Assistant to the President serving as the Presiding Officer.  The President of the College Senate and the presiding Officer will select five members of the Panel.  The President of the College Senate, or a designee, and a representative from Human Resources will account for two members.  The remaining three members will be selected from the College Senate and Leadership Council, with the majority from the involved employee's peer group.  No member of the Panel shall have any personal interest or be directly or indirectly involved in the matters under consideration.  The Panel shall appoint a substitute member when necessary.  

C.  The hearing date shall be set no later than ten working days from the date of the request by the employee.   hearing notice. Any request for postponement must be submitted in writing to the Presiding Officer at least three work days prior to the scheduled hearing.  The President  Presiding Officer reserves the right to extend the notice of the hearing or date of the hearing if additional time is needed. 

 

IV. Due Process Hearing
 

A.  The Due Process hearing shall be closed to the public. The hearing shall be tape recorded, and a duplicate of the tape recording shall be made available to the affected  involved employee upon request. A Notary Public shall swear in all witnesses.

 
B.  The Presiding Officer shall open the hearing by reading the recommendations of the involved administrators into the record. The Presiding Officer shall then read into the record those issues which the unit vice president submitted to the Panel.

 

C.  The involved administrators shall present evidence in support of their recommendations and shall have the burden of establishing by the greater weight of evidence that the employee should be dismissed or should not receive an additional extendible or improvement contract. The involved administrators and the involved affected employee shall have the right to counsel, to confront and cross examine adverse witnesses, and to examine all documents and other adverse demonstrative evidence. Any member of the Panel may ask questions of the involved administrators, the affected involved employee, their counsels, and any witness.
Rules of evidence shall not apply to the due process hearing.  If, due to extenuating circumstances, a witness can not be present at the hearing, a written statement may be submitted prior to the hearing.  The involved employee is responsible for arranging for the attendance of any witnesses that he/she would like to be present at the hearing in support of the case.  To protect the confidentiality of the hearing, the involved employee, or counsel, may decide if witnesses will be called one at a time or brought in all together. 

 

D. After hearing all of the evidence, the Panel shall afford both the involved employee, or counsel, and then the involved administrators, or counsel, and the affected employee an opportunity to summarize their respective positions.  Any such summarization shall not exceed 15 minutes. The Presiding Officer then shall direct the Panel to adjourn to closed session, which may be adjourned and subsequently reconvened within ten working days at the discretion of the Panel.

 

E.  In its closed session, the Panel will consider the evidence presented and will prepare the Panel's its report to the President.  The five panel members, by majority vote, will respond to the recommendation of the unit vice president, answer the issues presented by the unit vice president, and the Presiding Officer is responsible for delivering the Panel's report to the President. The report shall be delivered to the President within five working days after completion of deliberations.  The Panel's report may be accompanied by the Panel's recommendations as to the actions believed to be warranted.

 

F. Upon receipt of the Panel's advisory report, the President shall decide whether the involved affected employee is to be dismissed or deprived of any additional extendible or improvement contract.  The President's decision shall be delivered to the involved served upon the affected employee and/or counsel by certified mail, postmarked no later than ten working days after receipt of the Panel's report.  If it is finally decided that the employee is not to be dismissed, the employee shall be entitled to receive any pay that may have been withheld and shall be reinstated without loss of status or benefits.  In any event, suspension without pay shall not exceed 90 working days in accordance with Policy 4.38 II. 

 

G. If the involved employee wishes to appeal the President's decision, the employee may request in writing to the President, within 10 working days of receipt of the President's decision, that the decision be reviewed by the Executive Committee of the Board of Trustees. Such a request shall be submitted to the President.

 

H. Upon receipt of a request for review by the Executive Committee of the Board, the President shall within three ten working days advise the Chairman of the Executive Committee of the request. Thereafter, the Executive Assistant to the President shall within five ten work days forward to the Chairman and to the other members of the Executive Committee tape recordings of the proceeding before the Academic Rights and Responsibilities Panel, copies of all documents relative to such proceedings, and copies of the President's decision.

 

I. The Chairman of the Executive Committee shall forward copies of the President's submission to the other members of the Executive Committee for their review. In addition, The Chairman shall schedule a meeting of the Executive Committee for consideration of the appeal by a majority of the Committee. Notice of the meeting shall be given to the President and the involved employee who, with or without counsel, shall have the right to appear and argue in support of their respective positions. The Executive Committee will not receive additional evidence but will confine its review to the record and arguments before it.  The Executive Committee shall review the record and decision, hear arguments, conduct its deliberations, and shall vote upon a majority report.  The Committee shall submit its report to the full Board of Trustees at the next meeting of the Board following the Committee's vote upon the report.  The majority vote of the Board of Trustees shall be final.

Updated by Cabinet on 2/21/2005; changes approved by the Board of Trustees 1-9-08
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