BYLAWS[Am 5/24/88; Am 5/22/90; Am 2/24/04] |
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| | (A) | Membership. This committee shall consist of seven ordinary members of the Division, none of whom is an officer of the Division or an officer of the administration. In particular, the members shall not include the President of the University, the Chancellor at San Diego, the University Librarian, the Registrar, any Vice Chancellor, any Dean, Associate Dean or Assistant Dean, any Provost, any Department Chair, nor any Director. No two members should be from the same department. One member shall serve on the University Committee on Privilege and Tenure [see Bylaw 185(C)(8) and SBL 195]. [Am 4/28/92; Am 5/23/95; Am 2/24/04]. |
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| | (B) | Jurisdiction. |
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| | (1) | This committee shall advise the Chancellor at San Diego and the Division on general policies involving privilege or tenure of members of the Division. |
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| | (2) | Grievance Cases |
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| | (a) | Any member of the Academic Senate may complain to this committee that the member's rights or privileges have been violated. The committee may require that the complainant shall first exhaust all appropriate administrative avenues of redress. |
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| | (b) | In cases of personnel review involving tenure, promotion, or reappointment, such complaints may be based only on allegations: (1) that the procedures were not consonant with the applicable rules and requirements of the University or any of its Divisions, and/or (2) that the challenged decision was reached on the basis of impermissible criteria, including -- but not limited to -- race, sex, or political conviction. The committee shall be empowered to determine the validity of the complaints under (1) or (2) but shall not be empowered to reevaluate the academic qualifications or professional competence of the complainant. |
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| | (3) | Disciplinary Cases |
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| | In cases of disciplinary action commenced by the administration against a member of the Academic Senate, or against other faculty members in cases where the right to a hearing before a Senate committee is given by Section 103.9 or 103.10 of the Standing Orders of The Regents, proceedings shall be conducted before this committee. |
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| | (4) | Early Termination Cases |
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| | In cases of proposed termination of a Senate or non-Senate faculty member before the expiration of the faculty member's contract, the faculty member may request a hearing before this committee. The committee shall conduct a hearing on the case to determine whether, in its judgment, the proposed early termination is for good cause and has been recommended in accordance with a procedure that does not violate the privileges of the faculty member. |
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| Procedures |
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| | (C) | Extensions of Time Limits |
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| | The Vice Chancellor for Academic Affairs and the chair of the Committee on Privilege and Tenure, on written mutual agreement, may grant a reasonable extension of any of the time limits designated in this Bylaw. |
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| | (D) | Pre-Hearing Procedure in Grievance Cases |
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| | (1) | A grievance alleging a violation of a faculty member's privilege or tenure should be filed with the Committee on Privilege and Tenure within 180 calendar days of the action or incident giving rise to the complaint. |
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| | (2) | A panel of advisors is appointed each year by the Committee on Committees. A member of the panel may discuss the claim of violation of rights and privileges with the aggrieved Senate member and provide counsel on the appropriate procedure to be followed. Such advisors shall not serve as representatives of any complainant. |
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| | (3) | Upon receipt of a complaint, the Committee on Privilege and Tenure should first determine, within forty-five (45) calendar days, whether or not the complaining Senate member has made out a prima facie case. A prima facie case shall be deemed established if the committee concludes that there is sufficient reason to believe that a right or privilege of the complainant may have been violated. Upon an appropriate showing of need by any party or on its own initiative, the committee may request files and documents under the control of the administration, including the complainant's personnel files and confidential documents contained therein. Such confidential documents shall remain confidential within the committee. |
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| | (4) | The complainant shall have the right to appear before the committee. The committee may also ask other persons involved in the events that gave rise to the complaint, including the department chair, to appear for an informal hearing. |
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| | (5) | If the committee determines that the complainant has not made out a prima facie case of violation of a right or privilege, it shall advise the complainant to that effect in a written communication stating the reasons for its conclusion. |
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| | (6) | If the committee determines that the complainant has made out a prima facie case of violation of a right or privilege, the committee shall make an attempt to promote a settlement of the controversy between the complainant and the administrative officer, officers, or other persons concerned. If no settlement can be reached, the committee shall conduct a formal hearing, in accordance with the provisions set forth herein below under section 230(F). |
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| | (E) | Pre-Hearing Procedures in Disciplinary Cases [En 4/27/76] |
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| | (1) | Introduction |
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| | These procedures shall be followed in all cases in which the imposition of discipline upon a member of the Academic Senate is sought because of an alleged violation of the Faculty Code (Appendix IV of the Manual of the Academic Senate). They are designed to meet the standards and requirements set forth in Academic Senate Bylaw 335 and Part III of the Faculty Code. The term "faculty member" in the following rules refers to members of the Academic Senate and those to whom the Standing Orders of The Regents give the right to a hearing before an Academic Senate committee. [All other officers of instruction are covered under Section 140 of the Academic Personnel Manual.] Types of discipline that may be imposed are listed in paragraph (F)(5) below. Except as herein provided, no discipline of any type shall be imposed on a faculty member except in accordance with these procedures. [Am 5/23/78] |
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| | (2) | Filing a Complaint |
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| | Complaints alleging conduct in violation of the Faculty Code, or the general rules and regulations of the University, may be initiated by any member of the University community. Except in unusual circumstances, complaints should be filed within 180 calendar days of the action or incident giving rise to the complaint. (Other time limits specified in procedures approved by the Academic Senate, e.g., sexual harassment, shall apply.) Complaints shall be filed with the Vice Chancellor for Academic Affairs (VCAA). Students, at their discretion, may file complaints either with the VCAA or the provost or dean of the college or school in which the student is enrolled. The provost or dean shall immediately transmit any complaints of misconduct received by them to the VCAA. |
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| | (3) | Notice to Parties |
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| | Within seven (7) calendar days of receiving it, the VCAA shall send a copy of the complaint, with the name of the accuser, to the faculty member charged. |
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| | (4) | Probable Cause Investigation |
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| | (a) | Investigating Party |
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| | The VCAA shall designate, within fourteen (14) calendar days, an investigating officer to conduct a preliminary investigation of the allegations of faculty misconduct, wherever originating, to determine whether there is probable cause and, if so, to process the charges against faculty members in accordance with the provisions herein. At the same time that the VCAA designates an investigating officer to investigate the complaint, he or she shall notify the chair of the Panel of Counselors [see paragraph (5)(b) below] and the chair of the academic department of the accused faculty member. In accordance with Part III, section 7, of the Faculty Code, the chair of the panel shall participate in an advisory role in the investigation of the allegations. Except as provided in paragraphs (6) and (7), the VCAA shall not participate in such investigations or in the processing of charges against a faculty member. The Senate and the Administration may agree to have other forms of preliminary investigation conducted by the Administration stand in lieu of appointment of and investigation by an investigating officer (e.g., when the complaint alleges sexual harassment). [Am 5/23/95] |
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| | (b) | Determination of Probable Cause |
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| | The investigating officer shall determine, within thirty (30) calendar days, whether the complaint establishes probable cause. Probable cause is shown if a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of a violation of the Faculty Code of Conduct, or the general rules and regulations of the University. Witnesses may be interviewed. [Am 5/23/95] |
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| | (c) | Conference with the faculty member |
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| | If the investigating officer intends to recommend to the VCAA that charges be filed, the investigating officer shall, before making such recommendation, notify the faculty member in writing of such intention, including any written statements in support of the charges. The faculty member shall be invited to reply within fourteen (14) calendar days to the allegations in writing and/or in a personal conference. The faculty member and the investigating officer may agree on an informal resolution at this point, rather than have a mediator involved. [Am 5/23/95] |
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| | (5) | Mediation |
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| | (a) | In the case where other investigative procedures are followed (e.g. sexual harassment), this section shall not apply. |
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| | (b) | Panel of Counselors |
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| | (i) | There shall be a Panel of Counselors consisting of faculty members. It shall have a chair and four to seven members appointed by the Committee on Committees and approved by the Chancellor. The chair shall, if feasible, be a former member of the Committee on Privilege and Tenure. The Panel shall contain at least two non-tenured faculty members. |
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| | (ii) | The chair shall participate in an advisory role in the investigation of any complaints made against a faculty member [see paragraph (4)(a) above]. |
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| | (iii) | The members of the Panel of Counselors shall serve as mediators in disciplinary cases as set forth in paragraph (5)(c) and (5)(d) below. The members do not normally meet as a group. |
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| | (iv) | Members of the Panel of Counselors shall also serve as intermediaries required by the special procedures applicable when the Chancellor has invoked Section 626.4 of the California Penal Code or has imposed interim suspension with pay. These procedures are set forth in paragraph (G) below. |
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| | (c) | Selection of a Mediator |
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| | Following receipt of notification [see Section (E)(4)(c)], either the accused or the investigating officer may request via the chair of the Panel of Counselors [see paragraph (5)(b)] that a mediator from the Panel of Counselors be selected to aid in resolving differences between the parties through informal mediation. If the chair determines that the other party concurs in the request, he or she shall make such an appointment, in consultation with and with the approval of both parties, within seven (7) calendar days of receipt of notification. |
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| | (d) | Confidentiality of Mediation |
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| | In order to promote a free exchange of views, all aspects of the mediation shall be strictly confidential. Without limiting the foregoing: |
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| | (i) | The mediator shall not disclose to either party any statements made to him or her by the other party without that other party's explicit consent; shall not make known any observations, conclusions, or recommendations he or she may have concerning the case to any person except the parties; and shall not discuss any aspect of the case with the chair or any members of the Committee on Privilege and Tenure or testify before said committee; and |
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| | (ii) | The parties and their representatives shall not directly or indirectly make known to any other person any observations, conclusions, or recommendations submitted to any of them by the mediator. |
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| | (6) | Informal Resolution |
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| | In the following cases (a) and (b) only, discipline can be imposed on a faculty member by an explicit agreement between the faculty member and the Chancellor following the recommendation of the investigating officer. The recommendation shall be submitted to the Chancellor within thirty (30) calendar days following the appointment of the mediator, if one is appointed. The chair of the Panel of Counselors shall also have the right to submit a recommendation to the Chancellor on the basis of his or her participation in the investigation. [Am 5/23/95] |
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| | (a) | The investigating officer and the faculty member may arrive at a mutually agreeable settlement of the facts and issues, and on the discipline, if any, to be imposed on the faculty member pursuant to the settlement. Such agreement must be recorded in writing and must be signed by all parties. This agreement may or may not involve the use of a mediator. [Am 5/23/95] |
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| | (b) | A faculty member has the right to accept a proposed discipline, which may be agreed upon through mediation, without signifying agreement on the facts and issues alleged against him or her. [Am 5/23/95] |
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| | (7) | Filing Charges with the Committee on Privilege and Tenure |
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| | (a) | If the matter is not resolved by agreement, the investigating officer shall recommend to the VCAA that charges be filed with the Committee on Privilege and Tenure. The VCAA will ask an investigating officer to prepare the charges and submit them to the Committee on Privilege and Tenure within thirty (30) calendar days. The investigating officer will file the charges with the Committee on Privilege and Tenure and represent the University administration in any hearings held by the Committee on Privilege and Tenure. In this latter capacity, the investigating officer may be represented by the Office of the General Counsel. Once charges are filed, the VCAA shall have no further contact with the matter (unless he or she is called as a witness). No discipline may be imposed on a faculty member, other than by agreement [see paragraph (6)], without a prior hearing before the Committee on Privilege and Tenure, the procedure for which is provided herein. |
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| | (b) | Contents of Charges |
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| | The investigating officer shall prepare the charges, which shall specify the rule(s) violated and provide evidence of such violation. The charges shall then be filed with the Committee on Privilege and Tenure (hereinafter referred to as the "committee"). [Am 5/23/95] |
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| | (c) | Service of Charges |
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| | Upon receipt of the charges, the chair of the committee shall arrange to have a copy delivered within seven (7) calendar days to the faculty member or send it by mail to the member's last known place of residence and to the faculty member's department chair. The committee chair is required to arrange the service of the complaint so that written proof of its delivery is received. |
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| | (d) | Answer and Notice of Hearing |
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| | The faculty member shall have fourteen (14) calendar days from the date of receipt of the complaint in which to file an answer in writing to the committee, setting forth his or her position with respect to the conduct alleged. Upon receipt of the answer, or upon expiration of the fourteen-day period, the committee shall set a date for the hearing within sixty (60) calendar days. The defendant shall be given, either personally or by registered mail, at least ten (10) calendar days' notice of the time and place of the hearing. |
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| | (8) | Pre-Hearing Conference |
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| | With due notice, the hearing committee may, on the request of a party or on its own initiative, conduct a pre-hearing conference to clarify the procedures that will be followed in the hearing, at which time it may require the parties to define the issues, to outline their arguments, and to designate the witnesses they intend to call. This conference must take place within the sixty (60) day period specified in (E)(7)(d) above. [Am 5/23/95] |
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| | (F) | Hearing and Post-Hearing Procedures |
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| | (1) | Hearing Committee |
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| | The committee shall appoint a hearing committee for each case. The hearing committee may be the Committee on Privilege and Tenure or may be composed of at least five members selected from the membership of the Committee on Privilege and Tenure and an appointed panel of Division members. At least two of the members shall be members of the Committee on Privilege and Tenure, one of whom shall be chair of the hearing committee. A quorum for the conduct of the hearing shall consist of a majority of the hearing committee, including at least one member of the Committee on Privilege and Tenure. No member of the hearing committee shall sit on a matter that involves a member of his or her department or equivalent unit. If any member of the Committee on Privilege & Tenure is disqualified for any reason from hearing the case prior to the pre-hearing conference, the hearing committee may be appointed at that time. |
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| | (2) | Assistance |
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| | The Committee on Privilege and Tenure may, in its discretion, request appointment of a qualified person or persons, with the approval of the Chair of the San Diego Division of the Academic Senate, to assist in the organization and conduct of the hearing. |
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| | (3) | Participants |
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| | Each party shall be entitled to be present at all sessions of the hearing committee when evidence is being received and to select a representative who may act as counsel. In order to preserve the confidentiality of the hearing, persons whose presence is not essential to a determination of the facts shall, as a general rule, be excluded from the hearing. |
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| | (4) | Conduct of Hearing and Rules of Evidence |
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| | (a) | Although the hearing need not be conducted as a legal proceeding, each party shall have the right to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross examination as may be required for a full and true disclosure of the facts. |
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| | (b) | The hearing need not be conducted according to the technical legal rules relating to evidence and witnesses. The hearing committee may, upon an appropriate showing of need by any party or on its own initiative, request files and documents under the control of the administration. In hearings on grievances or early terminations, the identity of sources of personnel evaluations, insofar as they are confidential, shall remain so within the hearing committee. The hearing committee may call witnesses not referred to in the complaint or answer. |
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| | (c) | No evidence other than that presented at the hearing shall be considered by the hearing committee or have weight in the proceedings, except that notice may be taken of any judicially noticeable fact. Parties present at the hearing shall be informed of matters thus noticed; and each party shall be given a reasonable opportunity to refute such matters. On all disputed questions of fact, the party making an allegation which is disputed shall have the burden of proving it by a preponderance of the evidence. |
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| | (5) | Sanctions |
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| | Under Faculty Code, Part III, Section 12, the following disciplinary sanctions have been established: written censure; suspension (other than interim suspension with pay); demotion (in rank or salary step); dismissal from the employ of the University. Authority for imposing the first may be delegated by the Chancellor to the deans; authority for the second lies with the Chancellor and cannot be delegated. Authority for imposing the third and fourth upon non-tenured faculty lies with the Chancellor and cannot be delegated. Authority for imposing the third and fourth upon tenured faculty lies with The Regents, acting on the recommendation of the President. [Am 5/23/95] |
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| | (6) | Record of Hearing |
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| | The court-quality record of the proceedings will be made and the parties and their representatives shall have the right to a copy. The cost of the copy shall be assumed by the requesting party. [Am 6/10/97] |
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| | (7) | Recommendation |
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| | At the conclusion of the hearing, the hearing committee shall within thirty (30) calendar days make its findings of fact, conclusions supported by a statement of reasons based on the evidence, and recommendation, including its recommendation of sanction, if any, and forward these to the Chancellor, the parties in the case, the Vice Chancellor for Academic Affairs, the chair of the Divisional Committee on Privilege and Tenure, the chair of the University Committee on Privilege and Tenure, and the chair of the academic department of the faculty member. In its findings, the hearing committee should avoid naming faculty members not party to the case unless absolutely necessary. Any faculty member so named who may be affected by the findings should be allowed to comment before such findings are brought forward. [Am 1/25/94; 5/23/95] |
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| | (8) | Confidentiality |
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| | The findings, conclusions, recommendation, and record of the proceeding shall be confidential; the hearing committee may, however, authorize their release with the consent of the complainant in a grievance case, with the consent of the defendant in a disciplinary case, and with the consent of the faculty member involved in an early termination case. This proviso does not limit the actions of anyone other than the members of the hearing committee, the members of the Committee on Privilege and Tenure, and the officers and staff of the Academic Senate. |
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| | (9) | Responses to Committee's Recommendation |
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| | (a) | The investigating officer, the Vice Chancellor for Academic Affairs, or General Counsel as his or her representative, and the faculty member may each comment on the committee's findings and recommendation to the Chancellor within seven (7) calendar days from receipt thereof. After such comment has been considered, or, if there is no comment, after the expiration of such seven-day period, the Chancellor may impose the discipline, if any, recommended by the committee. If in the opinion of the Chancellor there are reasons which require a result different from that reached by the committee or a sanction different from that recommended by the committee, he or she shall prepare a written statement setting forth such reasons, and his or her specific objections, and return the case, with such statement, to the committee, transmitting a copy of the statement to the persons named in paragraph (F)(7). Within thirty (30) days after receipt of such statement, the committee shall reconsider the case, taking into account the reasons and objections of the Chancellor. On such reconsideration, the committee shall entertain argument by the parties, either orally or in writing, on any issues not presented at the first hearing. It shall not, however, revise its findings of fact except insofar as it determines that the reasons and objections of the Chancellor require additional findings of fact on issues not considered at the first hearing, in which case the committee shall receive evidence with respect to such matters. The committee shall then submit its findings and conclusions on reconsideration, which will be distributed in the same manner as the original findings and conclusions. The Chancellor shall then make his or her final decision, within fourteen (14) calendar days of receipt of the committee's final findings and recommendations, taking into account the committee's action on reconsideration. [Am 5/23/95] |
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| | (b) | A comparable procedure shall be followed in any case in which the discipline in question can be imposed only by The Regents on recommendation of the President. |
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| | (G) | Special Procedures to be Used When the Chancellor has Invoked Section 626.4 of the California Penal Code or has Imposed Interim Suspension |
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| | (1) | By agreement with the Academic Senate, the Chancellor will invoke the penal law against trespass, denying a person access to the campus, only in the most extreme cases where no alternative action will adequately protect the University and its community. When Section 626.4 is invoked, the following procedures shall be followed: |
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| | (a) | At the same time that the Chancellor or his or her designated representative informs the person that the statute has been invoked barring him or her from campus, the person shall also be informed that under special circumstances, he or she may enter the campus (to retrieve personal effects or to take care of urgent business related to laboratory or professional work or to collect evidence on his or her behalf) in the company of a member of the Panel of Counselors [see paragraph (E)(5)(a) above] or of some person acceptable to the administration. The counselor, or other person chosen, shall ensure that the person barred from campus under Section 626.4 does not abuse the privilege extended to him or her under this section. |
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| | (b) | As soon as Section 626.4 has been invoked, the Chancellor or his or her representative shall prepare a written notice to be delivered, by hand or telegram, to the person barred from campus. The notice shall contain (1) a statement that the person is barred from campus with a specification of the length of time the prohibition will run, an explanation of the reasons for which the action has been taken under Section 626.4,(3) an explanation of the privileges (a) to come on campus in the company of a member of the Panel of Counselors to take care of urgent business and (b) to use a member of the Panel as an intermediary in dealings with the Chancellor and the administration (this section of the written notice shall also contain the name of the Panel's chair), and (4) the names of the chairs of the Academic Senate Committees on Privilege and Tenure and on Academic Freedom. |
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| | (c) | The Chancellor's action under Section 626.4 does not constitute a disciplinary action under Regental and Academic Senate rules. Any attempt to impose discipline will proceed under the rules set out in paragraphs (E)(3) through (F)(11) above. |
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| | (2) | Aside from the extraordinary authority given to the Chancellor under Section 626.4 of the Penal Code, he or she has the right to impose on any faculty member an interim suspension with pay. This action shall be taken to protect the University and its community from the alleged deleterious effects of a faculty member's behavior. To invoke an interim suspension is to charge a faculty member with a violation of the Faculty Code, and when such a suspension has been imposed, the following rules will be applied. |
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| | (a) | The Chancellor or his or her representative shall inform the faculty member of his or her suspension with pay in writing delivered in person, by telegram, or by registered mail to the person's last known address. The notice of suspension shall contain (1) a statement of suspension and of its length, (2) an explanation of the reasons for which the suspension was imposed, (3) an explanation of the rights the faculty member has for gaining reinstatement of his or her privileges as a faculty member (4) notice of the availability of the Panel of Counselors, with a list of its current members, to act as intermediaries between the suspended person and the administration. |
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| | (b) | Within five (5) working days of the suspension, the suspended person shall decide whether to ask the Committee on Privilege and Tenure to hold a hearing on the charges of misconduct underlying the Chancellor's action or to make an informal agreement with the Chancellor concerning disciplinary action to be taken. If the suspended faculty member fails to initiate discussions designed to come to an informal agreement with the administration [under the provisions of paragraphs (E)(4) through (E)(5) above] within the specified time period, the Chancellor shall immediately refer the matter to the Committee on Privilege and Tenure. The case shall then be treated under the provisions of paragraphs (E)(7) through (F)(8) above. |
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| | (c) | Interim suspension with pay is not a disciplinary action under these rules. It is an action taken by the Chancellor pending disposition of his allegations that a faculty member has seriously violated and will most likely continue to violate the Faculty Code. |
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| | (H) | Report to Division |
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| | The Committee on Privilege and Tenure shall compile annually and submit to the Division a report describing its rulings and decisions during the previous year, and the grounds therefor. It shall also report the action taken by the administration in each case. This report shall not name the faculty members involved in any case or provide any more identifying detail than is required to fully inform the Division of the nature of the committee's actions and rulings. |
