NC State University Office of General Counsel Box 7008 ■ Raleigh ■ NC ■ rd Floor – Holladay Hall (919) Faculty Review/Grievance Panel Training

Training Overview/Agenda The 604/607 Committee –why, what, who, etc. Review (604) versus Grievance (607) Panel Roles and responsibilities of panel members What can be reviewed under section 604 What can be grieved under section 607 Overview of the hearing process Miscellaneous issues

The 604/607 Committee (aka Review/Grievance Committee) A University Standing Committee charged with: Hearing requests for reviews of non-reappointment decisions (UNC Code Section 604) Hearing other employment-related grievances (UNC Code Section 607) Carrying out the duties set forth in the Faculty Grievance and Non-Reappointment Review Policy (POL ) and Faculty Grievance and Non-Reappointment Review Regulation (REG )Faculty Grievance and Non-Reappointment Review Policy (POL ) Faculty Grievance and Non-Reappointment Review Regulation (REG ) 604/607 Committee Web Page

Who is on the 604/607 Committee? Each college elects two members from the General Faculty– at least one must be a tenured associate or full professor The General Constituency also elects two faculty members to the 604/607 Committee Two-year term; eligible for re-election to a subsequent term, however, must have at least a one year break if have served two consecutive terms

The 604/607 Committee Chair Chair of the 604/607 Committee appointed by the Chancellor to serve a two-year term Chair puts together panels and selects panel chair Schedules initial meeting of panel Authority to remove panel member or dissolve panel Prepares annual report re: reviews and grievances

What is a Panel? Review Panel – 604 reviews Grievance Panel – 607 grievances Panel = 3 members and 1 non-voting chair Selected by the Chair of the 604/607 Committee when a petition for review or grievance is filed Members must have attended/completed training as a pre-requisite to serving on a panel **Attorney from OGC appointed to advise the Panel

Panel Chair Responsibilities Be familiar with NC State POL and NC State REG Oversee all meetings and proceedings Be a “presider” not a “decider” Ensure due process for all parties Seek advice from OGC attorney assigned to the Committee on procedural matters or questions on legal standards Write final report with findings/recommendations Compile official record and transmit to Chancellor

Panel Member Responsibilities Be familiar with NC State POL and NC State REG Be fair and impartial; no favoritism toward either party Follow due process Determine if matter is appropriate for review/grievable issue Collect/hear the evidence; determine credibility; weight Determine if petitioner/grievant met burden of proof Make findings of fact/recommendations to Chancellor Establish official record Maintain confidentiality Seek advice from Office of General Counsel representative on procedural issues or questions relating to legal standards

What is the Panel’s authority? The Panel makes a recommendation to the Chancellor concerning the review or grievance. The panel does not have the authority to reverse an administrative decision, but can recommend a reassessment of that decision if it finds that the decision was reached improperly.

Fair and Impartial Hearing Panel No actual or perceived bias of panel member(s) toward any party No “ex parte” communications No “going rogue” Avoid/disclose conflicts of interest

Conflicts of Interest A relationship to a party or particular knowledge of the grievance that would prevent a panel member from deciding the case solely on the basis of the evidence presented at the hearing uninfluenced by matters of personal interest or other factors If there is a conflict, disclose the conflict Determine whether the panel member can make a fair, objective decision based solely on the facts, evidence and arguments made during the hearing? If the panel member cannot objectively decide the case, he/she should disqualify him/herself Provide the parties an opportunity to object to the panel member’s participation after disclosing the conflict

Due Process Opportunity for matter to be heard fairly and impartially Opportunity for parties to present evidence and question witnesses Panel makes recommendation to Chancellor based only on the evidence presented at the hearing

What is a Section 604 Review? Procedure by which a tenure track faculty member may seek review of a non-reappointment decision— that is either non-reappointment after initial appointment, or the denial of tenure May only be filed by tenure-track faculty members

Grounds for a Section 604 Review Material procedural irregularity Violation of rights guaranteed by the First Amendment to the US Constitution/Article I of NC Constitution (freedom of religion, speech and association) Discrimination (race, color, sex-including pregnancy, religion, national origin, age (over 40), disability, genetic information, veteran’s status, or other discriminatory bases prohibited under UNC or BOT policies—i.e. sexual orientation) Personal malice

Who is the respondent in a Section 604 review? The Provost is a respondent in all reviews of non- reappointment decisions A dean/department head can be named as a co- respondent if he/she materially contributed to the violation of rights alleged in the petition No one else can be named as a respondent unless all parties agree

What is a Section 607 grievance? Procedure by which a faculty member of any rank may seek redress concerning employment-related decisions Grievance can be filed for post-tenure review decisions

Grounds for a Section 607 (general) Grievance Decision by a university administrator that allegedly violates a law, university policy, regulation or rule or commonly shared understandings within the academic community about the rights, privileges and responsibilities attending university employment Faculty member must be adversely (negatively) affected in his/her professional or academic capacity

Can a faculty member grieve any employment-related matter? No; a faculty member may not grieve the following: general unhappiness with an administrative decision where there has not been a negative (adverse) effect on the faculty member’s academic or professional status general dissatisfaction with the application of a PRR on the basis that it is unfair or inadvisable; non-renewal/non-extension of contract upon expiration of contract (non-tenure track faculty); complaints, grievances or appeals subject to another university procedure or within jurisdiction of another committee (i.e. research misconduct, trespass); claims for compensatory/punitive damages that can be filed with the NC Industrial Commission (tort claim, workers’ compensation claim)

Grounds for a Section 607 (Post-Tenure Review) Grievance “Does Not Meet” Expectations Decision by PTR Same as grounds for a Section 604 review -Material procedural irregularity that casts doubt on the decision - Violation of rights guaranteed by the First Amendment to the US Constitution/Article I of NC Constitution -Discrimination (see above) -Personal Malice Grievance cannot be used to second guess the academic judgment of PTR Committee

Pre-filing Requirements Must meet with decision maker first to address the issue (attempt to resolve at lowest level) Must be timely filed (within 60 calendar days of the decision forming the basis of the petition for review or grievance)

Review/Grievance Procedures Formation of Review Panel or Grievance Panel Initial Meeting Pre-hearing Meeting Hearing Closed Session Record Compiled Decision and Record sent to Chancellor

Initial Meeting Review NC State POL and companion regulation, NC State REG as well as any other resources (i.e., checklists) Review petition (for 604 reviews) or grievance (for 607 grievances) and any request by the respondent to dismiss to determine whether the petition or grievance is appropriate for review (“jurisdiction”) Set potential dates for pre-hearing meeting (if applicable)

Pre-Hearing Meeting Review hearing procedures with the parties and expectations for the hearing Set aside date(s) for hearing Identify any observers Review proposed witness list Set date for exchange of proposed exhibits Other housekeeping matters

Hearing Chair – opening remarks Opening statements by parties (may be a time limit) Presentation of evidence by petitioner/grievant Dismissal after presentation if burden not met Presentation of evidence by respondent(s) Closing Statements

Closed Session Chair facilitates discussion and guides but does not decide Burden of Proof on Petitioner/Grievant (“preponderance of the evidence”) Discussion of facts as they relate to each key issue Resolution of conflicting evidence Deciding the ultimate issue Findings of Fact/Recommendation to Chancellor

Panel Report Introduction - describing the process followed by the Panel Brief Description of the review/grievance and the parties to the review/grievance Findings of Fact and Conclusions (basis for conclusions, how facts support conclusions, resolution of conflicting evidence) Recommendations Use report template OGC attorney assigned to Panel should review

Official Record Important for all levels of review! Petition or grievance statement and response All correspondence sent by the Chair, the parties or committee members that pertains to the petition/grievance (includes ) All exhibits presented to the Panel by either party Court reporter’s transcript Panel’s written report

Miscellaneous Issues Confidentiality of Grievance Proceedings Admissible evidence; hearsay evidence Affidavits from absent witnesses; participation via “Skype” Failure of a party to exchange documents or witness lists Failure of a party to appear Requests to amend the petition/grievance Separate report to the Chancellor Withdrawal of grievance or settlement – effect

Questions? Office of General Counsel Office of General Counsel Contact Chair of 604/607 Committee