Faculty Appellate Provisions (Implementing Processes for Sections 603,604, 605, and 607 of The Code)

Updated: November 22, 2024
Policy:
POL06.35.04
Title:
Faculty Appellate Provisions (Implementing Processes for Sections 603,604, 605, and 607 of The Code)
Category:
Personnel
Sub-category:
Dispute Resolution, Grievances, and Appeals
Authority:
Board of Trustees
History:

Approved November 22, 2024
Contact:

Provost and Senior Vice Chancellor for Academic Affairs (252) 328-5419
Related Policies:
Additional References:

1. Introduction

  • 1.1. East Carolina University shall interpret and apply the provisions of Chapter VI of The Code, Academic Freedom and Tenure, including, but not limited to Sections 603, 604, 605 and 607, in accordance with the Regulations adopted by the President. In accordance with Section 502 of Chapter V of The Code, the Chancellor shall exercise complete executive authority over the institution and define the scope of authority of faculty the senate and its committees. This policy sets forth the process by which the appropriate faculty panel makes recommendations to the Chancellor regarding faculty appellate matters. The appropriate faculty panel and the operation of this policy remain subject to the Chancellor’s authorization and approval. Final decisions regarding all faculty hearing or review matters described below rest solely with the Chancellor. This Policy is adopted by the East Carolina University Board of Trustees and sets forth the processes used by East Carolina University in implementing the following Regulations of the President of the UNC System:
    • 1.1.1. 101.3.1.1[R]-Regulation on Disciplinary Discharge, Suspension, or Demotion Under Section 603 of The Code
    • 1.1.2. 101.3.1.2[R]-Regulation on Non-Reappointment, Denial of Tenure, and Denial of Promotion Under Section 604 of The Code
    • 1.1.3. 101.3.1.3[R]-Regulation on Grievances Filed Pursuant to Section 607 of The Code

2. General Matters Applicable to this Policy

  • 2.1. In accordance with its procedures, and as described in this Policy, the ECU Faculty Senate shall elect a standing faculty appellate committee, and any subcommittees or necessary hearing panels, as described in 603 of The Code, a committee to participate in campus-based review of decisions regarding non-reappointment, promotion, and tenure as described in Section 604 of The Code, the faculty committee to hear reconsideration of termination due to financial exigency or program curtailment as described in Section 605 of The Code, and a Faculty Grievance Committee, as described in Section 607 of The Code. The Faculty Senate Appellate Committee serves in these roles and its members will staff the four (4) panels. The methods and process for the selection, organization, and membership of these committees and hearing panels is delegated to the Chancellor for the establishment of formal procedures related to faculty committee composition. Election of members committees shall be in accordance with the procedures set forth in the ECU Faculty Manual, as approved by the Chancellor.
  • 2.2. Descriptions of Grievant and Respondent
    • 2.2.1. Grievant
    • A Grievant is any faculty member who initiates one of the four Faculty Appellate processes described this Policy. Except as otherwise described herein, a Grievant must be a current faculty member employed by East Carolina University. Affiliate Faculty under Section 611 of The Code are not entitled to any rights under this Policy.
    • 2.2.2. Respondent and Substitute Respondent
    • The Respondent is the person(s) whose action is the subject of the process initiated by the Grievant. “Respondent” may be used in the singular form, even where it refers to more than one person. A Respondent must be a current employee of East Carolina University and must have institutional authority to respond to the allegations made by a Grievant. In matters of arising under Sections 603 and 604 of The Code, the Provost shall be a respondent as the institutional officer responsible for the decision under review. Generally, an individual or a departmental/unit committee and/or its chairperson may be named as a Respondent. If a named Respondent is a former administrator and, therefore no longer in a position to provide a remedy regarding grieved issues, the employee who presently occupies the administrative position will be considered as a Substitute Respondent for that purpose. If still employed by ECU, the former administrator may be called as a witness as determined by the Panel or the Substitute Respondent.
  • 2.3. Advisors
    • 2.3.1. Grievants and Respondents may elect to have the assistance of a single advisor during the pendency of any of the four processes described herein. Active participation, including but not limited to speaking during the hearing, by an advisor in a matter before one of the Hearing Panels described in this policy, is only permitted by an advisor who is an attorney representing the Grievant or the Respondent during a disciplinary hearing before the Due Process Panel.
    • 2.3.2. Advisors for Grievants and Respondents may include East Carolina University faculty members. Generally, the role of advisor should be filled by a tenured faculty member with experience in faculty appellate processes, as evidenced by prior service on university governance/appellate committees. Notwithstanding, any individual who is associated with a matter before one of the Panels described in this policy is prohibited from serving as an advisor to either the Grievant or Respondent for that matter. Association with a matter may include, but is not limited to, instances where the individual may reasonably be called as a witness or when the individual holds actual knowledge about the substance of the underlying matter. A list of potential faculty advisors shall be maintained by the Faculty Senate Office. While the advisors may provide support and advice to the parties at any meeting and/or proceeding, they may not speak on behalf of the parties or otherwise participate in, or in any manner disrupt, such meetings and/or proceedings. If, in the judgment of the Hearing Panel Chair, such an individual interferes or is in any way disruptive, they may be instructed to leave immediately. In this situation, it is within the discretion of the Hearing Panel Chair to decide whether such an individual may return and participate in the process at a later time.
  • 2.4. Special Considerations Related to Witnesses
    • 2.4.1. Individuals, such as the University Ombuds, that are assigned roles at the University in which their exclusive responsibilities are related to informal resolution of concerns and conflict are generally not appropriate to include as a witness in a hearing under this policy. In the event a party believes that individual is relevant to the hearing for reasons unrelated to their conflict resolution role they may submit a petition, for consideration by the Chancellor or their designee to include that individual as a witness
      2.4.2. The Chair of Faculty may not be called as a witness in a hearing under this policy unless the Chancellor or their designee determines that the individual serving as the Chair of the Faculty is an appropriate witness for reasons outside of the individual’s purview as Chair of the Faculty.
  • 2.5. Prior Attempts at Informal Resolution
    • 2.5.1. No part of an attempt at informal resolution and/or mediation (e.g., conversations, offers, negotiations, proposals, etc.) shall be introduced or admitted as evidence.
  • 2.6. Training for Appellate Panels
    • 2.6.1. The Processes described herein may present complex and difficult questions of fact, policy, and law. An important role of the hearing panel is gathering and preserving the evidence upon which most subsequent decisions will be based; therefore, it is important that both Appellate Steering Committee members and panel members are appropriately trained on the applicable policies and procedures described in this Policy. The Office of University Counsel provides training regarding these matters.
    • 2.6.2. In addition to annual training of the Appellate Committee, the Appellate Steering Committee will receive training regarding its role following the organizational meeting of the Appellate Committee. Training for the hearing panels described in this Policy is conducted after the formation of a panel and may be scheduled upon the receipt of a request for initiation of a process described in this Policy.
  • 2.7. Initiation of Processes
  • A faculty member’s request to initiate a process described in this Policy shall be directed to the Chair of the Appellate Steering Committee. Upon receipt, the Appellate Steering Committee will review the petition to confirm that the appeal properly states a contested matter within the jurisdiction of one of the faculty appellate processes under this policy. The Appellate Steering Committee shall confirm whether or not the Grievant presented sufficient information to establish jurisdiction under Chapter VI of The Code and applicable UNC Regulations.
  • 2.8. Deadlines
    • 2.8.1. When calculating a deadline under this Policy, and except as otherwise provided herein, any reference to the word “day” or “days” means calendar day or calendar days, respectively. In computing the applicable timeframe, do not count the day in which notice is received, but include the last day of the period being computed. When the last day of a period falls on a Saturday, Sunday, or an institutional holiday, the next working day is the last day of such period.
    • 2.8.2. Extension of Time
      • 2.8.2.1. Either party may request an extension of time to deadlines provided under this policy. Upon request for an extension of time, the Appellate Steering Committee Chair, or the relevant Hearing Panel Chair when the matter has been referred for hearing, may award an extension when good cause is shown. Additionally, under unusual circumstances, such as when a hearing request is received during official university breaks, holidays, or other periods of time when the University is closed for business, the deadline will start on the first day the University is open for business.
      • 2.8.2.2. Consistent with the requirements of this Policy, the Chancellor may extend any deadline for a reasonable amount of time when doing so is in the best interests of the University. The Chancellor will promptly inform the Grievant, Respondent, the Hearing Panel Chair, the Chair of the Faculty, and the Provost of the timing and basis of a deadline extension.
    • 2.8.3. Communications and Notifications
    • Communications and notifications to and from the Grievant and the Respondent, respectively, must be made in a manner that provides adequate proof of delivery. Actual delivery is not required when a party attempts to deliver a communication by signature verification or other trackable methods, and upon attempted delivery the other party refuses to sign or accept the communication. Evidence of three (3) service attempts by signature verification or other trackable means, to the individual’s address on file with the University will constitute sufficient service of any written notification or communication under this Policy. Hand delivery by an individual not personally involved in the matter is also a sufficient means of delivery.
    • 2.8.4. Closed Sessions and Confidentiality of Proceedings.
    • Hearings are closed to the public. Only the immediate parties to the proceeding, the responsible administrators, the respective committees and staff, and advisors and attorneys are permitted access to the hearing and/or materials collected under this Policy, unless otherwise specified by law or applicable University of North Carolina Policy. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
      • 2.8.4.1. The confidential records and information derived from any discussions that are part of the formal hearing process shall not be disclosed to or discussed with any person except as allowed by law, including the limitations to access to confidential personnel files provided by Chapter 126 of the North Carolina General Statutes.
      • 2.8.4.2. Violation of this section and improper access or disclosure to confidential personnel information may result in disciplinary action, including sanctions up to and including termination of employment.
    • 2.8.5. The Record of Appeal
    • Communications to and from parties that are part of the appeal process, documents or media submitted for hearings, transcripts, and the panel reports make up the Record of Appeal and are maintained in the Faculty Senate Office. The components of the record on appeal include: The printed record of all petitions, notices and formal communications, transcripts, exhibits and other items submitted to the hearing panel, and any other supplement or additional materials that are considered by the hearing panel. Some or all the record may become part of the personnel records of the parties, with access restricted by law (see NC General Statutes, Chapter 126, Article 7).
    • 2.8.6. Additional Hearing Procedures Adopted by the Chancellor
    • This policy shall be implemented and applied in accordance with such regulations and procedures as may be adopted by the Chancellor, including the development of hearing procedures that may include, but not limited to, procedural items such as the identification of exhibits, time limitation for proceedings, timeline for submissions of witnesses and evidence in advance of the hearing, hearing agendas, and the other like matters related to the hearing procedures.
  • 2.9. Non-Retaliation
  • University employees have the right to avail themselves of this Policy, and the processes described herein, free from threats or acts of illegal retaliation, interference, coercion, restraint, discrimination, or reprisal. Retaliation against a Grievant, Respondent, or person who participates in the processes described in this Policy is a violation of this policy and is strictly prohibited. Such retaliation may result in disciplinary action, up to and including dismissal from employment in accordance with applicable disciplinary policies.
  • 2.10. Jurisdiction of the Board of Governors
  • The Board of Governors expects that campus matters will be addressed appropriately at the constituent institution. Therefore, the Board of Governors will not hear appeals of decisions that have been addressed through this Policy. Under extraordinary circumstances, as solely determined by the Board of Governors, the Board may exercise its discretion to review any matter that has not first been brought to the attention of the designated institutional administrator, Chancellor, or president for appropriate review and handling. The Board of Governors may in its sole discretion conduct hearings, whether before the full board or a designated standing or special committee of the board. Such hearings shall be limited to matters as the Board of Governors deems appropriate. All appeals addressed to or requests for hearings by the Board of Governors, from whatever source, shall be transmitted through the president.

3. Disciplinary Discharge, Suspension or Demotion

  • 3.1. Matters relating to the formal discharge, suspension, or demotion of a faculty member are governed by Chapter 100, Section 603 of The Code and UNC Policy Manual 101.3.1.1[R]-Regulation on Disciplinary Discharge, Suspension, or Demotion under Chapter 100, Section 603 of The Code.
  • 3.2. Basis for Discharge, Suspension, or Demotion
  • A faculty member who is the beneficiary of institutional guarantees of tenure shall enjoy protection against unjust and arbitrary application of formal discharge, suspension, or demotion; such actions may be imposed only in accordance with the process described in Article 3 of this Policy. For impositions of formal discharge, suspension, or demotion, a faculty member serving a fixed term shall be regarded as a faculty member until the end of that term. During the period of such guarantees, the faculty member may be discharged from employment, suspended without pay, or demoted in rank only for reasons of:
    • 3.2.1. Incompetence, including significant, sustained unsatisfactory performance after the faculty member has been given an opportunity to remedy such performance and fails to do so within a reasonable time.
    • 3.2.2. Neglect of duty, including but not limited to, the sustained failure to: Meet assigned classes, respond to communications from individuals within the faculty member’s supervisory chain, report to their employment assignment and by continuing to be absent for fourteen (14) consecutive calendar days without being excused by their supervisor, or to perform other essential duties of their position; or
    • 3.2.3. Misconduct of such a nature as to indicate that the individual is unfit to continue as a member of the faculty, including violations of professional ethics or engaging in other unethical conduct; violation of university policy or law; mistreatment of students or employees; research misconduct; financial or other fraud; or criminal, or other illegal or inappropriate conduct. To justify formal discharge, suspension, or demotion, such misconduct should be either (i) sufficiently related to a faculty member’s responsibilities as to disqualify the individual from effective performance of job duties, or (ii) sufficiently serious as to adversely reflect on the individual’s honesty, trustworthiness, or fitness to be a faculty member.
    • Certain facts presented to support a discharge, suspension, or demotion may fall under one or more of the reasons listed above. Therefore, classification of alleged conduct as one categorical basis for imposition of formal discharge, suspension without pay or demotion, when the conduct more appropriately meets the definition of another (e.g., willful, intentional neglect of duty might be considered misconduct), shall not be considered a deficiency in the charge. So long as there is sufficient evidence of the underlying facts to support a discharge, suspension, or demotion, an action shall not be invalid because the reason provided mislabeled or miscategorized the underlying facts.
    • 3.2.4. The provisions found in this section do not apply to the other processes described in this policy, including campus-based review of non-reappointment, denial of tenure and/or denial of promotion, termination of employment, or general grievances.
    • 3.2.5. Consistent with Chapter 100, Section 603 of The Code, there is no expectation that the process be attended by the formality or technicality which characterizes civil or criminal legal proceedings in a court of law. Rather, the process should be conducted by administrators and faculty in a manner designed to determine whether discharge, suspension, or demotion is warranted.
  • 3.3. Notice to Faculty of Imposition of Discharge, Suspension, or Demotion
  • The Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) shall provide written notice to the faculty member of intent to discharge, suspend, or demote. The written notice must include: (i) the proposed date of discharge, suspension, or demotion; (ii) a written specification of the reasons for discharge, suspension, or demotion; (iii) the faculty member’s right to request a disciplinary hearing; and (iv) the deadline and process for the faculty member to request a disciplinary hearing in writing. The notification shall be sent by a method that provides delivery verification.
  • 3.4. Administrative Leave with Pay at any point during these procedures, the Chancellor, Provost, or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) shall have the discretion to place the faculty member on administrative leave with pay. The decision to place a faculty member on administrative leave with pay is not a disciplinary action and, therefore, not grievable.
  • 3.5. Failure to Respond to Notice of Intent
  • If the faculty member wishes to respond to the Notice of Intent by requesting a hearing, they must do so, in writing, within fourteen (14) days after receipt of the Notice of Intent. If the faculty member does not submit a timely written request for a hearing, they may be discharged or sanctioned without recourse to any institutional grievance or appeal procedure.
  • 3.6. Request for a Disciplinary Hearing
    • 3.6.1. Within fourteen (14) calendar days of receiving written notice from the Provost a faculty member (hereafter, the Grievant) may request a disciplinary hearing to review the written specification of reasons for the intended discharge, suspension, or demotion. A disciplinary hearing shall be requested by sending a written request to the Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) and the chair of the Appellate Steering Committee.
    • 3.6.2. Upon receipt of a timely written request from the Grievant, the respective Appellate Chair will promptly convene a Due Process Panel to conduct a disciplinary hearing on the written specification of reasons for the intended discharge, suspension, or demotion.
    • 3.6.3. Legal Counsel Consistent with Chapter 100, Section 603 of The Code, the Grievant shall have the opportunity, at the expense of the Grievant, to be actively represented by legal counsel in a matter under Article 3 of this Policy. Counsel may represent the interests of the Grievant before the Due Process Panel, if the faculty member so chooses. Legal counsel for the institution may actively represent the Provost or Executive Dean of Brody School of Medicine, respectively, and may be provided by in-house campus counsel, counsel from another constituent institution, a member of the Attorney General’s Office, counsel from the System Office, or outside counsel.
  • 3.7. Procedures for the Disciplinary Hearing
    • 3.7.1. Time, Date, and Location of Hearing
      • 3.7.1.1. The Due Process Panel shall normally set the time, date, and place for the hearing. The panel shall accord the Grievant and the Respondent at least thirty (30) calendar days to prepare for the disciplinary hearing from the date the Appellate Steering Committee receives a Grievant’s written request for a hearing before scheduling the hearing date. With advance notice to the Chair of the Hearing Committee the time, date, and place for the hearing may be adjusted by the Chancellor with good cause and taking into consideration the confidentiality and safety of the proceedings.
      • 3.7.1.2. The Due Process Panel shall promptly notify the Grievant, the Provost, or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority), and the Chair of the Faculty of the time, date, and place of the hearing. The hearing shall be scheduled to provide the parties at least one day to present their respective arguments and evidence; however, the hearing shall not exceed two business days unless good cause exists for the extension of the hearing. The Due Process Panel ordinarily will endeavor to complete the hearing within ninety (90) calendar days from the time the faculty member submits the request for a disciplinary hearing to the Appellate Steering Committee, except under unusual circumstances such as when a hearing request is received during official university breaks and holidays and, despite reasonable efforts, the panel cannot be assembled. The panel may, upon one of the parties’ written request and for good cause, postpone the date of the hearing by written notice to both parties, the Due Process Appellate Chair, the Chair of the Faculty, and the Chancellor.
      • 3.7.1.3. At least fourteen (14) calendar days before the hearing, the parties shall notify the panel, the Chair of the Faculty, and the Chancellor of the identity of their legal counsel, if the Grievant intends to be represented at the hearing. The parties will also submit evidence and documents, as well as a list of witnesses to be called at the hearing, along with a brief statement of the relevance of each witness.
    • 3.7.2. Submission of Hearing Documents
      • 3.7.2.1. All information and documents shall be submitted to the Faculty Senate Office in accordance with the procedures set forth in the ECU Faculty Manual. The information and documents will be made available to each party in advance of the hearing date.
      • 3.7.2.2. The Panel chair will create an agenda prior to the meeting that will state limits on the amount of time that each party will be allocated for presentation of their cases. This agenda shall identify the names of the panel members and procedures for submission of new documents and handling of the witnesses, and will be distributed to the panel, the Grievant and the Respondent in advance of the hearing date.
    • 3.7.3. Standard of Review
    • The Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) shall have the burden of proof in matters of disciplinary hearings arising from appeal of a notice of intent for formal discharge, suspension without pay or demotion. In evaluating the evidence, the Due Process Panel shall use the standard of clear and convincing evidence to determine sufficient evidence of a permissible basis for the discharge, suspension, or demotion (e.g. – incompetence, neglect of duty, or misconduct (as defined by Section 603 of The Code)).
  • 3.8. Conduct of Hearing
    • 3.8.1. A professional court reporter must be used to record and transcribe the hearing. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
    • 3.8.2 Hearings are closed to the public. Only the immediate parties to the proceeding, the responsible administrators, the respective committees and staff, and advisors and attorneys are permitted access to the hearing and/or materials collected under this Policy, unless otherwise specified by law or applicable University of North Carolina policy.
    • 3.8.3 Witnesses will only be present for the duration of their testimony.
    • 3.8.4 The Due Process Panel Chair is responsible for conducting the hearing and maintaining order and prompt progression of the hearing process. The Panel Chair has authority to take action that maintains the integrity of the process to the extent possible and consistent with applicable law and policy. Such rules and procedures shall be consistent with this Policy and Chapter 100, Section 603 of The Code and applicable UNC regulations.
    • 3.8.5 Following the opening remarks by the Panel Chair, the Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) or legal counsel/advisor shall present their contentions and any supporting witnesses and documentary evidence. The Grievant or legal counsel/advisor may then respond to the contentions and present any supporting witnesses and evidence. Each party shall have time for examining their own witnesses. During these presentations, the Grievant or legal counsel/advisor, and the Respondent or legal counsel/advisor, may cross-examine opposing witnesses. For purposes of clarification, panel members may question witnesses, including the Grievant and the Respondent. At the conclusion of the hearing, the Grievant will be given the opportunity to make a summary final statement, and then the Respondent will be given the same opportunity.
    • 3.8.6 The Panel shall create a clear, permanent written record of the evidence presented at the disciplinary hearing and make a recommendation to the Chancellor of whether or not to impose a discharge, suspension, or demotion, based on a finding that the Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) showed by a standard of clear and convincing evidence that there is a permissible basis for the discharge, suspension, or demotion (e.g. – incompetence, neglect of duty, or misconduct (as defined by Section 603 of The Code and Section II.A of this Regulation).
  • 3.9. Procedures After the Hearing
    • 3.9.1. After the hearing, the panel shall meet in executive session within three (3) calendar days to conduct deliberations. In reaching the decisions on which the Due Process panel’s written recommendations to the Chancellor will be based, the panel shall consider only the evidence presented at the hearing and such written or oral arguments as the panel, in its discretion, may allow.
    • 3.9.2. The University has the burden of proof. In evaluating evidence, the Due Process Panel shall use the standard of “clear and convincing” evidence in determining whether the institution has met its burden showing that permissible grounds for the discharge, suspension, or demotion exist and are the basis for the recommended action. “Clear and convincing” is a higher standard than “preponderance of evidence” and must indicate that the University’s case is substantially more likely to be true than not true.
    • 3.9.3. Within fourteen (14) calendar days after the full transcript is received, the Panel shall provide the Grievant, Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) and any other Respondent, the Chair of the Faculty, and the Chancellor with a copy of its report, including materials entered as evidence, and a copy of the court reporter’s transcript of the hearing.
  • 3.10. Chancellor’s Decision
    • 3.10.1. Following receipt of the Due Process Panel’s written recommendations, the decision whether to discharge, suspend, or demote the faculty member is the Chancellor’s. As soon as reasonably possible after receiving the report of the Due Process Panel and the court reporter’s written transcript of the hearing along with the materials offered in evidence at the hearing, the Chancellor’s decision shall be conveyed in writing to the Panel, Grievant, Faculty Senate Office, and relevant administrators by a method that provides delivery verification. In reaching a decision, the Chancellor shall consider only the written transcript of the hearing, including materials offered in evidence in the Due Process Panel’s hearing and the documents that constitute the record of the appeal, including but not limited to the notice of intent to discharge, suspend or demote, the faculty member’s request for a hearing, and the report of the Due Process Panel.
    • 3.10.2. The Chancellor’s notice to the faculty member of the decision must inform the faculty member: (1) of the permissible grounds for appeal pursuant to Section 603 of The Code; (2) that the faculty member has fourteen (14) calendar days to file a notice of appeal through the Chancellor requesting review by the Board of Trustees as provided in Section 603(2)(b) of The Code; (3) that a written notice of appeal with a brief statement of the basis for the appeal is all that is required within the 14-day period provided in Section 603(2)(b) of The Code; and (4) that, thereafter, a detailed schedule for the submission of relevant documents will be established if such notice of appeal is received in a timely manner.
  • 3.11. Appeal of the Chancellor’s Decision to the ECU Board of Trustees
    • 3.11.1. An appeal of a Chancellor decision to the Board of Trustees shall be transmitted through the Chancellor and be addressed to the Chair of the Board of Trustees, by submitting such notice by certified mail, return receipt requested, or by another means that provides proof of delivery, within fourteen (14) calendar days after the Grievant’s receipt of the Chancellor’s decision.
    • 3.11.2. The appeal must contain a brief statement that alleges one or more of the following as the basis for the appeal: (1) that the process for making the decision was materially flawed, so as to raise questions about whether the faculty member’s contentions were fairly and reliably considered; (2) that the result reached by the Chancellor was clearly erroneous; or (3) that the decision was contrary to controlling law or policy.
    • 3.11.3. The appeal to the Board of Trustees shall be decided by the full Board of Trustees; however, the Board may delegate the duty of conducting an initial review to a standing or ad hoc committee of at least three members of the Board.
    • 3.11.4. The Board of Trustees, or its designated committee, shall consider the appeal based on the written transcript of the hearing held by the Due Process Panel, including materials offered in evidence and the documents that constitute the record of the appeal, including but not limited to the notice of intent to discharge or impose sanctions, the faculty member’s request for a hearing, and the report of the panel; however, at its discretion, the Board may consider written or oral arguments, subject to any policies, regulations, or guidelines that may be adopted by the Board of Governors. The Board of Trustees’ decision shall be made as soon as reasonably possible after the Chancellor has received the faculty member’s request for an appeal to the Trustees. This decision is final and shall be the end of the University’s appeal process.

4. Non-Reappointment, Denial of Tenure and Denial of Promotion Review Process

  • 4.1. Matters relating to Non-Reappointment, Denial of Tenure, and Denial of Promotion are governed by Chapter 100, Section 604 of The Code and UNC Policy Manual 101.3.1.2[R]-Regulation on Non-Reappointment, Denial of Tenure, and Denial of Promotion under Section 604 of The Code.
  • 4.2. Applicability and Purpose
  • The hearing process provided in this Article 4 is applicable to all faculty members holding probationary appointments (tenure track) and appointments with permanent tenure. The purpose of the review process is to determine whether, by a preponderance of the evidence, a Grievant has established that a non-reappointment, denial of tenure and/or denial of promotion decision was based on “Impermissible Basis”, as defined under Chapter 100, Section 604 of The Code.
  • 4.3. Request for a Hearing
    • 4.3.1. Initiation of the Hearing Process
    • A faculty member is responsible for initiating the hearing process. Within thirty (30) calendar days of receiving written notice from the Provost of non-reappointment, denial of tenure, or denial of promotion, a faculty member (hereafter, the Grievant) seeking to initiate the process shall file a written statement to the chair of the Appellate Steering Committee and deliver it to the Faculty Senate Office. The statement shall comply with the requirements of this Section and be addressed to the Chair of the Appellate Steering Committee, with a copy to the Provost.
    • 4.3.2. Impermissible Basis Review
    • A request for hearing is limited to the Grievant’s contention that the decision on non-appointment, denial of tenure, or denial of promotion was based on “Impermissible Basis” as defined in The UNC Policy Manual Chapter 100.1 and Section 604C(d) of The Code. “Impermissible Basis” means a decision under Chapter 100.1, 604(A) of The Code shall not be based upon (1) the exercise by the faculty member of rights guaranteed by the First Amendment to the United States Constitution, or by Article I of the North Carolina Constitution; (2) the faculty member’s membership in a group protected from discrimination under state or federal law; (3) other violation of state or federal law; or (4) material violation of applicable university policies for reappointment, promotion, and tenure that materially affected the decision.
    • 4.3.3. Under Section 604 of The Code, The UNC Policy Manual 101.3.1.2[R], “[a] review is not to second-guess professional judgments based on permissible considerations [,]” but rather to review allegations that a decision was made on an Impermissible Basis.
    • 4.3.4. The Grievant’s request for a hearing must specifically identify and enumerate all reasons for the request of an Impermissible Basis for appeal. It shall specify the contention(s), identify the administrator(s) and/or other party(ies) whose recommendation, determination, or decision was based on “Impermissible Basis”, and outline the facts that the Grievant can provide to support the contention(s). If multiple respondents identified as part of Grievant’s statement, the respondents shall designate a representative to act before this Hearing Panel. The Hearing Panel shall reject any statement that does not include these required specifications.
  • 4.4. Deadline to submit for Hearing
  • If the faculty member does not file a written statement meeting the required specifications with the Appellate Steering Committee within thirty (30) calendar days of the decision on non-reappointment, denial of tenure or denial of promotion, the decision is final without recourse to any further review by the Hearing Panel or the University. However, before the expiration of the deadline, the faculty member may request an extension of time to file a written statement to request review for good cause only. Such a request for an extension of time request is made shall be made in writing to the Chair of the Appellate Steering Committee. The Appellate Steering Committee shall promptly decide on the request for the extension of time but shall issue a decision no more than ten (10) calendar days after receiving a request.
  • 4.5. Appellate Steering Committee Responsibilities
    • 4.5.1. Upon receipt of a written statement from a faculty member requesting a campus-based review, the Appellate Steering Committee Chair will review the request in consultation with the Appellate Steering Committee. The Appellate Steering Committee shall consider the written statement and decide whether to grant a hearing. The Appellate Steering Committee shall grant a hearing if it determines that the Grievant’s statement contends that the non-reappointment, denial of tenure, denial of promotion decision was based on Impermissible Basis and the facts outlined, if established, tend to support the contention.
    • 4.5.2. If the Appellate Steering Committee determines the request for review does not sufficiently state a ground for review, the Steering Committee Chair shall provide written notice of that decision and its rationale to the Grievant and the Provost. The decision not to grant a hearing confirms the non-reappointment, denial of tenure, and/or denial of promotion decision.
    • 4.5.3. If the Appellate Steering Committee decides to grant a hearing, the matter shall be referred to the respective Appellate Chair to move the matter forward to a hearing and establish the Hearing Panel, consistent with the requirements of this Policy and faculty hearing committee procedures found in the ECU Faculty Manual, as approved by the Chancellor. Once a Hearing Panel is established, the panel will elect a chair and a secretary.
  • 4.6. The Hearing
    • 4.6.1. Notice of Hearing
    • The Chair of the Hearing Panel shall then notify the Grievant and the Provost, as well as any named respondent(s), of the setting of a time, date, and place for a hearing, including notification that identifies the membership of the Hearing Panel. Unless an extension of time is approved in accordance with Section 2.8.2 above, the hearing shall be scheduled no later than thirty (30) days from the written statement requesting review and the Chancellor shall endeavor to issue a decision on the request within ninety (90) calendar days of the Grievant’s request for campus- based review.
      • 4.6.1.1. At least twenty-one (21) calendar days before the hearing, the Grievant shall notify the panel and the Respondent(s) of the identity of the Grievant’s advisor.
    • 4.6.2. Hearing Panel Procedures and Authority
    • The Hearing Panel Chair is responsible for conducting the hearing and maintaining order and prompt progression of the appeal and hearing process. The Hearing Panel Chair has authority to take action that maintains the integrity of the process to the extent possible and consistent with applicable law and policy. Such rules and procedures shall be consistent with this Policy and Chapter 100, Section 604 of The Code and applicable UNC regulations.
    • 4.6.3. Standard for Review
    • The Grievant shall have the burden of proof in matters contesting decisions on non-reappointment, denial of tenure and/or denial of promotion. In evaluating the evidence, the Hearing Panel shall use the standard of preponderance of the evidence. The purpose of the campus-based review process is to determine whether the decision was based on an Impermissible Basis, as defined by The Code. Preponderance is defined as the greater weight of evidence, or such evidence as leads the panel to find a contested fact to be more probable than its nonexistence (more likely than not).
    • 4.6.4. Submission of Hearing Documents
      • 4.6.4.1. At least fourteen (14) calendar days before the hearing, the Grievant and Respondent(s) will submit documentary evidence. All information and documents shall be submitted to the Faculty Senate Office in accordance with the procedures set forth in the ECU Faculty Manual. The information and documents will be made available to each party.
      • 4.6.4.2. The Hearing Panel Chair will create an agenda prior to the meeting that will state limits on the amount of time that each party will be allocated for presentation of their cases. This agenda, with names of the panel members and procedures for handling of the witnesses, will be distributed to the panel, the Grievant and the Respondent(s) no less than five (5) calendar days prior to the hearing date.
    • 4.6.5. Hearing
    • 4.6.6. A professional court reporter must be used to record and transcribe the hearing. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
    • 4.6.7. Hearings are closed to the public. Only the immediate parties to the proceeding, the responsible administrators, the respective committees and staff, and advisors and attorneys are permitted access to the hearing and/or materials collected under this Policy, unless otherwise specified by law or applicable University of North Carolina policy.
      • 4.6.7.1. The parties shall be provided the opportunity to make opening and closing statements, elicit testimony from witnesses, cross examine witnesses, to provide other evidence, and to examine information and evidence presented at the hearing. Witnesses will only be present for the duration of their testimony.
      • 4.6.7.2. The Hearing Panel Chair shall begin the hearing by briefly introducing the hearing’s purpose, the panel’s authorization and powers, and the procedures to be followed during the hearing. The chair shall then enter into the hearing record the documentation submitted by the Grievant and Respondent(s) as Exhibits G and R.
      • 4.6.7.3. At the conclusion of the hearing, the Grievant will be given the opportunity to make a summary statement, and then the Respondent(s) will be given the same opportunity.
    • 4.6.8. Hearing Panel Actions After Hearing
      • 4.6.8.1. After the hearing, the panel shall meet in executive session within three (3) calendar days to begin its deliberations and determine whether the Grievant proved, by a preponderance of the evidence, that the decision was based on an Impermissible Basis as defined by Section 604C of The Code. The Hearing Panel shall consider only the evidence presented at the hearing, and such written or oral arguments as the panel, in its discretion, may allow.
      • 4.6.8.2. Within fourteen (14) calendar days after the full transcript is received, the Panel shall provide the Grievant, the Provost and any other Respondents, the Chair of the Faculty, and the Chancellor with a copy of its report, including materials entered as evidence, and a copy of the court reporter’s transcript of the hearing.
    • 4.6.9. Chancellor’s Actions After Hearing
      • 4.6.9.1. Within thirty (30) calendar days after receiving the recommendation of the Hearing Panel and the record on appeal, the Chancellor shall provide written notice of their decision to the Grievant, Provost, as well as any named respondent(s), and the Faculty Senate Office.
      • 4.6.9.2. If the Chancellor concurs with a recommendation of the Hearing Panel that is favorable to the faculty member, the Chancellor’s decision shall be final with no appeal available. If the Chancellor either declines to accept a committee recommendation that is favorable to the faculty member or concurs in a committee recommendation that is unfavorable to the faculty member, the faculty member may appeal the Chancellor’s decision by filing a written notice of appeal with the Board of Trustees.
      • 4.6.9.3. In addition, the Chancellor may consult with the Hearing Panel in person (or in writing) to request clarification of the Hearing Committee’s recommendation.
      • 4.6.9.4. If the Chancellor concludes that the non-reappointment, denial of tenure and/or denial of promotion decision was based on an Impermissible Basis, the Chancellor will prescribe an appropriate remedy which may include a re- review of the decision in such a way to address the findings or an extension of the probationary term. The remedy is never an automatic grant of tenure, promotion, or reappointment.
    • 4.6.10. Appeal to the Board of Trustees
      • 4.6.10.1. An appeal of the Chancellor’s decision to the Board of Trustees shall be transmitted through the Chancellor and be addressed to the chair of the Board of Trustees, by submitting such notice by means that provides proof of delivery, within fourteen (14) calendar days after the faculty member’s receipt of the Chancellor’s decision. The notice must contain a brief statement that alleges one or more of the following as the basis for the appeal: (a) that the campus- based process for reviewing the decision was materially flawed; (b) that the result reached by the Chancellor was clearly erroneous; or (c) that the decision was contrary to controlling law or policy.
      • 4.6.10.2. The Board of Trustees shall conduct its review pursuant to UNC Board of Governors Regulation 101.3.1.2[R], Section III. This decision is final and shall end the University’s appeals process.

5. Faculty Grievances Filed Pursuant to Chapter 100, Section 607 of The Code

  • 5.1. Matters relating to Grievances Filed Pursuant to Chapter 100, Section 607 of The Code are governed by Chapter 100, Section 607 of The Code and UNC Policy Manual 101.3.1.3[R]-Regulation on Grievances Filed Pursuant to Section 607 of The Code.
  • 5.2. The right to the review of grievances through this procedure is available to actively employed members of the ECU faculty. A faculty member whose employment ends during the pendency of a grievance proceeding is not entitled to continue the grievance forward through these procedures. However, the Chancellor may, in their sole discretion, determine that it is in the best interest of the constituent institution to continue the grievance, in certain circumstances.
  • 5.3. This Article 5 provides for peer review of faculty grievances through a formal procedure that includes access to mediation and the potential for a formal hearing of a grievance. No grievance that is within the jurisdiction of another appellate panel, falls within the charge of these Faculty Grievance provisions.
  • 5.4. Redress of a grievance pursuant to this section is limited to the faculty and administrative structure of East Carolina University. There is no right to appeal available beyond the Board of Trustees, as applicable under this Policy.
  • 5.5. Faculty Grievance Classifications
  • There are two classifications of grievances covered by this section:
    • 5.5.1. General Grievance
      • 5.5.1.1. Consistent with Chapter 100, Section 607 of The Code, general grievances within the province of the Grievance Panel’s power shall include matters directly related to a faculty member’s terms and conditions of employment. General grievances must be based upon a decision made by an administrator in a supervisory role over the faculty member. The grievance must allege that the decision was in violation of federal or state law, or UNC Policy or Regulation, or constituent institution policy or regulation and that the faculty member was negatively affected by such decision. However, the grievance committee may not consider a matter that is subject to Chapter 100, Section 603, Section 604, or Section 605 of The Code, or a matter that is not grievable as defined in UNC Policy 101.3.2[R].
      • 5.5.1.2. The power of the Grievance Panel is limited to those matters properly defined by The Code and UNC Policy. The UNC Policy Manual Regulation 101.3.1.3 (Regulation on Grievances Filed Pursuant to Section 607 of The Code) states:
      • “For clarity, a grievance shall not include disputes between faculty colleagues, disputes between faculty and staff members, disputes between faculty and students, decisions that do not directly affect the faculty member’s terms and conditions of employment, decisions on teaching loads and assignments, or business decisions about the allocation of university resources other than the faculty member’s compensation.”
    • 5.5.2. Informal Conflict Resolution
      • 5.5.2.1. Faculty are encouraged to resolve the issue through informal conflict resolution which could include but is not limited to the Ombuds Office or other mediation services prior to initiating a general grievance with the Appellate Steering Committee. The ombuds is an impartial and independent third party trained to facilitate discussion. Mediation (led by an ombuds or other trained mediator between two or more parties) is an informal discussion conducive to fair and just agreements. Mediation is also confidential. Consequently, mediation records may not be used as evidence in a hearing, and the ombuds or mediator may not reveal information to other parties without consent of the party who revealed the information.
      • 5.5.2.2. Informal Resolution by the Parties
      • When attempting to resolve issues through informal conflict resolution, the following procedures are recommended:
        • 5.5.2.2.1. Before meeting, the faculty member shall provide the other party a written statement setting forth the nature of the problem and the redress sought. If there are multiple claims, each should be presented clearly. This statement should include all information necessary to support each of the objecting faculty member’s claims, giving the other party an opportunity to identify, understand, and address each concern.
        • 5.5.2.2.2. During attempts to resolve conflicts, each party may select an advisor. The advisor may serve in this role if a formal grievance process is initiated but shall not be called as a witness in a formal grievance process. For impartial adjudication of a conflict, either party may require availability of information that is controlled or in the possession of the other party or the administration.
        • 5.5.2.2.3. Upon specific request by a party during the informal conflict resolution, the other party or the administration shall provide the requesting party with information bearing on the conflict that is not otherwise confidential as a matter of law (“privileged”). No requests for access to information from current or past grievances at ECU shall be granted.
    • 5.5.3. Appeal of a Non-Disciplinary Separation
      • 5.5.3.1. Bases for Non-Disciplinary Separation Appeals Chapter VI, Section 602 of the UNC Policy Manual and Code specifies that if a faculty member wishes to appeal a non-disciplinary separation, then they can file a grievance pursuant to Chapter 100, Section 607 of The Code.
      • 5.5.3.2. Section 602(6)(d) states: “The non-disciplinary separation from employment of a faculty member with permanent tenure or of a faculty member appointed to a specified term of service before the term expires when:
        • (i) the faculty member is unable to perform the essential functions of the job due to a medical condition or the vagueness of a medical prognosis, and the university and the faculty member are unable to reach agreement on a return-to-work arrangement that meets both the needs of the university and the faculty member’s condition, and the university has demonstrated a business or operational need to fill the faculty member’s position; or
        • (ii) notwithstanding any unexhausted leave credits and leave benefits, the faculty member is unable to perform all the position’s essential duties due to a court order, or due to the loss of credentials or certification required for the position and that would render the faculty member unable to perform all the essential functions of the job.”
      • 5.5.3.3. Notice to Faculty of Non-Disciplinary Separation
      • The Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) shall provide written notice to the faculty member of intent to discharge as part of a non-disciplinary separation. The written notice must include: (i) the proposed date of discharge; (ii) a written specification of the reasons for discharge; (iii) the faculty member’s right to a hearing; and (iv) the deadline and process for the faculty member to request a hearing in writing. The notification shall be sent by a method that provides delivery notification. If no written request for a hearing is received within fourteen (14) calendar days after receipt of this notification, the faculty member may be discharged without recourse to any institutional grievance or appellate procedure.
      • 5.5.3.4. Request for a Non-Disciplinary Separation Hearing
        • 5.5.3.4.1. Within fourteen (14) calendar days of receiving written notice from the Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority), a faculty member (hereafter, the Grievant) may request a review of the reason for the separation before a Grievance Panel by sending the request to the Provost or Executive Dean of Brody School of Medicine (as appropriate according to supervisory authority) and the Chair of the Appellate Steering Committee.
        • 5.5.3.4.2. The Grievant’s request for a hearing shall specify the contention that the decision for a non-disciplinary separation was arbitrary or capricious, and shall include a short, plain statement of facts that the faculty member believes support that contention.
        • 5.5.3.4.3. Unless an extension of time is approved in accordance with Section 2.8.2 above, the Grievance appellate chair will convene a Grievance Panel within ten (10) calendar days of receiving this request.
        • 5.5.3.4.4. The burden of proof for grievances of non-disciplinary separation under Chapter 100, Section 602(6)(d) of The Code shall be on the University to show by a preponderance of evidence that the faculty member is unable to perform the essential functions and duties of their job and the separation is consistent with the requirements articulated in Section 602(6)(d). The procedures found within subparts III through IV of this Section, shall control for appeals of non-disciplinary separations.
    • 5.5.4. Deadlines to Initiate a Grievance
      • 5.5.4.1. The deadline for initiating a grievance by filing a petition for redress (Step One) by the end of the following Spring semester for an incident alleged to have occurred during the previous Fall semester (August 16th to December 31st) and the end of the Fall semester for an incident alleged to have occurred during the previous Spring semester or during the summer months between the relevant Spring and the Fall semesters (January 1st to August 15th).
      • 5.5.4.2. The Appellate Steering Committee and Grievance Panel shall hold the Grievant responsible for progressing through the grievance steps in a timely manner. If time delays are encountered because of the Respondent(s), the Grievant shall bring this to the attention of the appellate or panel chair as appropriate to the stage of the grievance at the time.
      • 5.5.4.3. The parties may agree to pause the grievance, at any time, during the process by emailing the Grievance Appellate Chair. The Grievance Appellate Chair will issue a communication to all parties regarding the pause of the grievance. The grievance may be resumed upon the request of the Grievant or will resume after forty-two (42) calendar days, unless the parties agree to a brief extension of the pause. All communications relating to pausing the grievance will be added to the record of appeal.
      • 5.5.4.4. The Grievant may terminate the grievance at any time during the process by emailing the Grievance Appellate Chair. The Grievance Appellate Chair will issue a communication to all parties regarding the termination of the grievance. Any such notice of termination is final, and the grievance shall be closed. The communications terminating the grievance will be added to the record of appeal.
    • 5.5.5. Grievance Process
      • 5.5.5.1. Petition for Redress (Step One)
        • 5.5.5.1.1. Serving the Petition
          • 5.5.5.1.1.1. A Petition for Redress by the Grievant should be addressed to the Appellate Steering Committee Chair. The grievance shall be in writing and shall set forth in detail the nature of the grievance and the administrator in the supervisory role over the faculty member against whom the grievance is being filed. The Petition for Redress should set forth the redress sought. If there are multiple claims, each should be presented clearly. The petition for redress should include all information necessary to support each of the Grievant’s claims and should follow procedures provided by the Faculty Senate Office. The faculty member shall deliver a copy of the grievance to the Chair of the Appellate Steering Committee by a method that provides proof of delivery. The Appellate Steering Committee will provide a copy to the Respondent administrator.
          • 5.5.5.1.1.2. The Petition for Redress, once submitted to the Appellate Steering Committee, shall not be modified. The Appellate Steering Committee Chair will notify the parties of the decision regarding the petition for redress. All material collected as part of the grievance shall be collected in the record of appeal maintained in the Faculty Senate Office under the Grievant’s name.
    • 5.5.6. General Grievances – Review of Petition for Redress under Chapter 100, Section 607 of The Code
      • 5.5.6.1. Based on information contained in the Grievant’s Petition for Redress, and when not a matter of appeal of a non-disciplinary separation, the Appellate Steering Committee shall determine whether the grievance is within the scope of Chapter 100, Section 607 of The Code. Submission of a grievance shall not automatically result in the consideration or review of the grievance. The Appellate Steering Committee shall confirm that the review and hearing by the Grievance Panel is limited to hearing grievances that meet the requirements of Section 607(3) of The Code.
      • 5.5.6.2. Upon review of the Petition for Redress, the Appellate Steering Committee may decide that none, some, or all of the issues in the Petition for Redress sufficiently state a basis for a general grievance. If the Appellate Steering Committee determines that only a portion of the claims alleged by the Petition for Redress are within the scope of review under Chapter 100, Section 607 of The Code, then the Appellate Steering Committee shall issue a memorandum providing written notice to the parties of what matters asserted by the Grievant are within the proper scope of review and the subsequent review and hearing by the Grievance Panel. Issues not within the scope of Chapter 100, Section 607 of The Code will receive no further attention and the Appellate Steering Committee’s decision concerning the grievance shall be communicated by memorandum to the Grievant and Respondent. The decision of the Appellate Steering Committee is final for matters rejected by the Appellate Steering Committee, unless the articulated issues fall within the scope of another appellate process, in which case the Appellate Steering Committee will endeavor to transfer the matter to the appropriate appellate process, as properly allowed under this policy.
    • 5.5.7. Mediation (Step Two)
      • 5.5.7.1. After the Appellate Steering Committee has determined which, if any, issues raised in the Grievant’s Petition for Redress are within the scope of Chapter 100, Section 607 of The Code, the grievance shall move to mediation.
      • 5.5.7.2. The Grievance Appellate Chair shall offer the parties to the grievance the opportunity to seek a resolution through mediation. Participation in mediation is limited to the Grievant and the Respondent. Each party will be asked to respond within fifteen (15) calendar days indicating to their acceptance of mediation.
      • 5.5.7.3. If the Grievant and the Respondent accept mediation, the Faculty Senate Office administrator and Chair of the Faculty will be responsible for securing a mediator. To avoid real or apparent conflicts of interest, all mediation will be conducted by a third-party mediator with no formal association with East Carolina University nor prior association with either party to the grievance. All mediators shall be certified by the North Carolina Administrative Office of the Courts.
      • 5.5.7.4. The parties to the grievance will inform the appellate chair within five (5) calendar days of receiving the name of the proposed mediator, as to whether the mediator has a conflict of interest or bias that would impact the mediator’s role and duties. An alternate mediator will be located if necessary.
      • 5.5.7.5. Following the selection of a mediator, the Grievance Appellate Chair will provide the Petition for Redress, and the Appellate Steering Committee’s memorandum identifying issues under Chapter 100, Section 607 of The Code, if applicable, to the mediator. The mediator will communicate to the Grievance Appellate Chair and the parties the beginning date of the process. The mediator will inform the Grievance appellate chair and the parties monthly that mediation is continuing with measurable progress. The mediation process shall not exceed forty-two (42) calendar days.
      • 5.5.7.6. Mediation will continue until such time that:
        • 5.5.7.6.1. An agreement among the parties is reached;
        • 5.5.7.6.2. A party or the mediator writes to the Grievance Appellate Chair that further mediation is unlikely to be successful; or
        • 5.5.7.6.3. The time limit for the mediation process has expired.
      • 5.5.7.7. If mediation is unlikely to be successful or the time limit for mediation has expired the Grievance Appellate Chair to notify the parties of termination of the mediation process and inform provide notice to the Grievant of the option to move to a hearing (Step Three), if desired. Any decision by the Grievant, Respondent, or mediator to terminate mediation shall have no bearing on substantive decisions or recommendations related to the grievance. All information from the mediation process is confidential and inadmissible in the grievance hearing.
      • 5.5.7.8. If mediation is successful, the grievance will be considered closed. If applicable, a copy of any agreement made by the parties to the grievance will be placed in the grievance file maintained in the Faculty Senate Office.
    • 5.5.8. Request for a Hearing (Step Three)
      • 5.5.8.1. If the grievance is not resolved through mediation, the Grievant may request a hearing by written notice to the Grievance Appellate Chair, with a copy to the Respondent, made within ten (10) days of the resolution of mediation (Step Two). The Grievant may also decide that the grievance will not be pursued and elect to end the grievance process at any time.
      • 5.5.8.2. The Grievance Appellate Chair will establish a Grievance Panel if it determines that all or some of the issues unresolved by mediation allege an injury that would entitle the faculty member to relief under Chapter 100, Section 607 of The Code. In this case and as applicable, the Appellate Steering Committee shall provide an updated memorandum to the Grievant and Respondent(s) explaining any remaining issue(s) to address in a hearing. Should the Appellate Steering Committee determine that remaining issues are no longer within the purview of a Grievance Panel, this decision will end the general grievance process and shall be communicated in writing to all parties that the grievance is terminated.
    • 5.5.9. Establishment of the Grievance Panel
      • 5.5.9.1. If the grievance moves to a hearing, the Appellate Chair shall establish the Grievance Panel, consistent with the requirements found in this policy and the ECU Faculty Manual procedures, as approved by the Chancellor. Once a Hearing Panel is established, the panel will elect a chair and a secretary.
      • 5.5.9.2. The Grievance Appellate Chair will communicate the membership of the grievance panel to the parties. Any party to a grievance may request that any member of the panel be recused from the hearing for conflict of interest.
    • 5.5.10. Notice of Hearing
      • 5.5.10.1. Once a Grievance Panel is established, the Grievance Panel Chair will notify the Grievant and Respondent, setting a time, date, and place for a hearing on the Petition for Redress, and the Appellate Steering Committee Memorandum, when applicable. The date of the hearing shall be within forty-two (42) calendar days of the Grievant’s written request for hearing, except when the request for a hearing is received during summer months, official university breaks and holidays, and when, despite reasonable efforts, the Grievance Panel cannot be assembled. If the panel cannot schedule a hearing during the summer, a fall hearing date will be scheduled as soon as possible after the fall organizational meeting of the Appellate Committee. If a panel was selected for a grievance prior to the end of the spring semester and their work extends into the fall semester, all members on the panel should continue work on that grievance even if their terms on the Appellate Committee concluded with the end of the spring semester. In those situations, panel members will only be replaced under special circumstances (e.g., the member has taken on administrative duties that would render them ineligible to serve).
      • 5.5.10.2. The panel may, upon one of the parties’ written request and for good cause, postpone the date of the hearing by written notice to both parties, the Grievance Appellate chair, the Chair of the Faculty and the Chancellor.
    • 5.5.11. Submission of Hearing Documents
      • 5.5.11.1. At least fourteen (14) calendar days before the hearing, the parties will submit evidence and a list of witnesses to be used in the hearing, along with a brief statement of the relevance of each witness. Neither the Ombuds, a mediator, nor the Chair of the Faculty may be called as a witness in the hearing of a grievance and no part of an attempt at informal resolution and/or the mediation effort (e.g., conversations, offers, proposals, etc.) shall be introduced or admitted as evidence.
      • 5.5.11.2. All information and documents to be considered by the Grievance Panel shall be submitted to the Faculty Senate Office in accordance with the procedures set forth in the ECU Faculty Manual. The information and documents shall be made available to each party in advance of the hearing.
    • 5.5.12. Agenda
    • The Grievance Panel Chair will create an agenda prior to the meeting that will state limits on the amount of time that each party will be allocated for presentation of their cases. This agenda, with names of the panel members and procedures for submission of new documents and handling of the witnesses, will be distributed to the panel, the Grievant and the Respondent(s).
    • 5.5.13. The Hearing (Step Four)
      • 5.5.13.1. The Grievant’ s presentation shall be limited to the issues presented in the Petition for Redress and confirmed by the Appellate Steering Committee to be within Chapter 100, Section 607 of The Code. During the hearing, the panel may explore issues raised by any party to the grievance that are concretely based on issues allowed under Chapter 100, Section 607 of The Code. The panel’s responsibility is limited to issuing recommendations based on the information presented as part of request for hearing (Step 3) and presented at the hearing (Step 4).
      • 5.5.13.2. The grievance panel must decide whether the Grievant has alleged facts that, if true, constitute the basis for a grievance. If the Grievant fails to establish that the underlying issue(s) constitute a grievance under Section 607 of The Code, the grievance panel must dismiss the grievance. Notice of dismissal shall be provided, in writing, to the Grievant, the Respondent administrator, and the Chancellor,
      • 5.5.13.3. At the hearing, the Grievant shall have the opportunity to present evidence in support of the grievance and the Respondent administrator shall have the opportunity to respond. The burden of proof is on the Grievant to establish by a preponderance of the evidence the allegations in the grievance and that the Grievant is entitled to relief.
      • 5.5.13.4. Only the evidence presented and accepted into the record by the grievance panel shall be considered by the grievance panel. After receiving the evidence, the grievance panel will make a recommendation to the Chancellor.
      • 5.5.13.5. A professional court reporter must be used to record and transcribe the hearing. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
      • 5.5.13.6. Hearings are closed to the public. Only the immediate parties to the proceeding, the responsible administrators, the respective committees and staff, and advisors and attorneys are permitted access to the hearing and/or materials collected under this Policy, unless otherwise specified by law or applicable University of North Carolina policy. Witnesses will only be present for the duration of their testimony.
      • 5.5.13.7. The Grievance Panel Chair is responsible for conducting the hearing and maintaining order and prompt progression of the appeal and hearing process. The Grievance Panel Chair has authority to take action that maintains the integrity of the process to the extent possible and consistent with applicable law and policy. Such action shall be consistent with this Policy and Chapter 100, Section 607 of The Code.
      • 5.5.13.8. The Grievance Panel Chair shall begin the hearing by briefly introducing the hearing’s purpose, the panel’s authorization and powers, and the procedures to be followed during the hearing. The chair shall then enter into the hearing record correspondence generated prior to the hearing as the Appellate Committee’s Exhibit C, and information submitted in Step Three by the Grievant and the Respondent as Exhibits G and R.
      • 5.5.13.9. The parties shall be provided the opportunity to make opening and closing statements, elicit testimony from witnesses, cross examine witnesses, to provide other evidence, and to examine information and evidence presented at the hearing. Witnesses will only be present for the duration of their testimony.
      • 5.5.13.10. At the conclusion of the hearing, the Grievant will be given the opportunity to make a summary final statement, and then the Respondent will be given the same opportunity.
    • 5.5.14. Grievance Panel Report (Step Five)
      • 5.5.14.1. After the hearing, the grievance panel shall meet in executive session within three (3) calendar days and begin deliberations. In reaching the decisions on which the written recommendation to the Chancellor will be based, the grievance panel shall consider only the evidence presented at the hearing and such written or oral arguments as the panel, in its discretion, may allow.
      • 5.5.14.2. In matters of general grievance, the burden of proof is on the faculty member to establish, by a preponderance of the evidence, the allegations in the grievance and that the Grievant is entitled to relief.
      • 5.5.14.3. In matters of non-disciplinary separation, the burden of proof for grievances of non-disciplinary separation under Chapter 100, Section 602(6)(d) of The Code shall be on the university to show by a preponderance of evidence that the faculty member is unable to perform the essential functions and duties of their job and the separation is consistent with the requirements articulated in Chapter 100, Section 602(6)(d).
      • 5.5.14.4. Preponderance is defined as the greater weight of evidence and its probable truth or accuracy, and not the amount of evidence presented.
    • 5.5.15. Within fourteen (14) calendar days after the full transcript is received, the Panel shall provide the Grievant, Respondents, the Chair of the Faculty, and the Chancellor with a copy of its report, including materials entered as evidence, and a copy of the court reporter’s transcript of the hearing. The written report shall indicate whether the party with the burden of proof has met its burden and the material facts upon which this decision is based, and what, if any, relief is recommended. The grievance panel report shall be based on applicable law, UNC Policy and Regulation, and university policies and regulations.
    • 5.5.16. Chancellor Decision (Step Six)
      • 5.5.16.1. Upon receipt of the grievance panel’s report and the record of the appeal, the Chancellor shall decide whether to accept, reject, or modify the grievance panel’s recommendation. The Chancellor shall base their decision on the record. The Chancellor may, in their discretion, consult with the Grievance Panel Committee before making the decision.
      • 5.5.16.2. The Chancellor shall notify the Panel, Grievant, Respondent(s), Faculty Senate Office, and relevant administrators, in writing, of the Chancellor’s decision within thirty (30) business days of the receipt of the grievance panel report and the record of appeal. The Chancellor’s written decision shall include a notice of any available appeal rights and the timeline for any available appeal.
    • 5.5.17. Appeal to Board of Trustees (Step Seven)
      • 5.5.17.1. Appeal Rights A decision in favor of the faculty member may not be appealed. A decision not in favor of the faculty member may be appealed to the Board of Trustees.
      • 5.5.17.2. Timeline for Appeals A Grievant who seeks to appeal the Chancellor’s decision must file written notice of appeal with the Board of Trustees (through the Chancellor, with proof of delivery) within fourteen (14) calendar days of the Chancellor’s decision. The notice shall contain a brief statement of the basis for the appeal.
      • 5.5.17.3. Standard for Review In order for the Board of Trustees to reverse or modify the Chancellor’s decision, the Grievant must demonstrate that the Chancellor’s decision was clearly erroneous, that the Chancellor’s decision violated federal or state law or The Code or Policy or constituent institution policy, or that the process used in deciding the grievance was materially flawed.
    • 5.5.18. Board of Trustee Decision
      • 5.5.18.1. The Board of Trustees will establish a schedule for the submission of relevant documents to be presented with the appeal. Unless the Board determines an appeal is not within its jurisdiction or fails to meet the procedural requirements for consideration by the Board, the Board will consider the appeal on a schedule established by the Chancellor, subject to any instructions received from the Board chair or from a committee of the Board that has jurisdiction of the subject matter of the grievance. The Board will issue its decision as expeditiously as is practical. If the Grievant fails to comply with the schedule established by the Board for the appeal, then the Board at its discretion may extend the time for compliance or may dismiss the appeal.
      • 5.5.18.2. The Board of Trustees may delegate to a designated committee the authority to make procedural decisions and to make final decisions on behalf of the Board concerning appeals of faculty grievances submitted pursuant to Chapter 100, Section 607 of The Code. The decision of the Board of Trustees is final and may not be further appealed.

6. Financial Exigency or Program Curtailment or Elimination

  • 6.1. The employment of a faculty member with permanent tenure or a faculty member holding a fixed-term or probationary appointment may be terminated by East Carolina University because of 1) demonstrable, bona fide institutional financial exigency, or 2) major curtailment or elimination of a teaching, research, or public service program. “Financial exigency” is defined as a significant decline in the financial resources of the institution that is brought about by a decline in institutional enrollment or by other action or events that compel a reduction in the institution’s current operations budget. The determination of whether a condition of financial exigency exists or whether there shall be a major curtailment or elimination of a teaching, research, or public-service program shall be made by the chancellor, after consulting with the academic administrative officers and faculties as required by Section 605 C (1). This determination is subject to concurrence by the UNC President and then approval of the UNC Board of Governors. If the financial exigency or curtailment or elimination of a program is such that the institution’s contractual obligation to a faculty member cannot be met, the employment of the faculty member may be terminated in accordance with Section 605 B (1) of The Code of The University of North Carolina and the institutional procedures set out below.
  • 6.2. Consultation with Faculty and Administrative Officers under Section 605 C(1)
  • If it appears that the institution will experience financial exigency or needs to consider a major curtailment or elimination of a teaching, research, or public-service program, the Chancellor or Chancellor’s designee shall seek the advice and recommendations of the academic administrative officers and faculties of the department(s) in question or other units that might be affected.
  • 6.3. Termination Procedures
    • 6.3.1. Consideration in Determining Whose Employment is to be Terminated
    • In determining which faculty member’s employment is to be terminated for reasons set forth in Section 605 A of The Code, the Chancellor shall give consideration to tenure status, to years of service to the institution, and to other factors deemed relevant, but the primary consideration shall be the maintenance of a sound and balanced educational program that is consistent with the functions and responsibilities of the institution.
    • 6.3.2. Timely Notice of Termination
      • 6.3.2.1. When a faculty member’s employment is to be terminated because of major curtailment or elimination of a teaching, research, or public-service program, and such curtailment or elimination of program is not founded upon financial exigency, a permanently tenured faculty member shall be given atleast twelve (12) months of notice. A faculty member without permanent tenure shall also be given notice in accordance with the requirements specified in subsection 6.3.3.1 below.
      • 6.3.2.2. When a faculty member’s employment is to be terminated because of financial exigency, the institution will make every reasonable effort, consistent with the need to maintain sound educational programs and within the limits of available resources, to give the same notice as set forth in the preceding paragraph.
    • 6.3.3. Type of Notice to be Given
      • 6.3.3.1. An individual faculty member whose employment is to be terminated shall be notified of this fact in writing by a method that provides delivery verification. This notice shall include: (i) a statement of the conditions requiring termination of the faculty member’s employment; (ii) a general description of the procedures followed in making the decision; (iii) a disclosure of pertinent financial or other data upon which the decision was based; (iv) a statement of the faculty member’s right to reconsideration procedure that affords the faculty member whose employment is to be terminated a fair hearing on the termination if the faculty member alleges that the decision to terminate was arbitrary or capricious; and (v) a copy of this procedure on termination of employment.
      • 6.3.3.2. When requested by a faculty member whose employment has been terminated, the institution shall give reasonable assistance in finding other employment. Such assistance should include, for example, administrative assistance, access to the telephone (including long distance), University/unit stationery and postage, travel funds to professional meetings, and other assistance as deemed reasonable and appropriate by the Chancellor and based upon the availability of funds.
    • 6.3.4. Termination if Reconsideration is Not Requested
    • If, within fourteen (14) calendar days after receipt of required notice, the faculty member makes no written request for a reconsideration hearing, employment will be terminated at the date specified in the notice, and without recourse to any institutional grievance or appellate procedure. Failure to submit a request for a Reconsideration Hearing and the review documents specified below within the time periods allotted constitutes a waiver of the right to reconsideration.
    • 6.3.5. Request for Reconsideration Hearing
    • Within fourteen (14) calendar days after receiving the required notice, the faculty member may request a reconsideration of the decision to terminate employment by a method that provides delivery verification. The request shall be submitted to the chancellor and copied to the chair of the faculty and the Appellate Steering Committee Chair. The request shall specify the contention that the decision to terminate employment was arbitrary or capricious, and shall include a short, plain statement of facts that the faculty member believes support that contention. The Reconsideration Appellate Chair will convene a Reconsideration Hearing Panel within ten (10) calendar days.
  • 6.4. Procedures for the Hearing
    • 6.4.1. Time and Date of Hearing
    • The Reconsideration Panel shall set the time, date, and place for the hearing. The date for the hearing should be within forty-two (42) calendar days of the time the Appellate Steering Committee Chair receives the chancellor’s notification of the faculty member’s written request for a hearing. The panel chair shall notify the affected faculty member, the Chancellor, and the Chair of the Faculty of the time, date, and place of the hearing following the method described here. The panel may, upon the one of the parties’ written request and for good cause, postpone the date of the hearing by written notice to the faculty member, Chancellor, Reconsideration Appellate Chair, and Chair of the Faculty. At least fourteen (14) calendar days before the hearing, the parties shall submit documents and a list of witnesses to be used in the hearing along with a brief statement of the relevance for each witness.
    • 6.4.2. Submission of Hearing Documents
    • All information and documents shall be submitted to the Faculty Senate Office in accordance with the procedures set forth in the ECU Faculty Manual. The information and documents will be made available to each party. The Reconsideration panel chair will create an agenda prior to the meeting. The agenda will state limits on the amount of time that each party will be allocated for presentation of their cases. This agenda, with names of the panel members and procedures for submission of new documents and handling of the witnesses, will be distributed to the panel, the grievant and the respondent no less than five (5) calendar days prior to the hearing date.
    • 6.4.3. Conduct of Hearing
    • The Reconsideration Panel’s review of the faculty member’s appeal shall be limited solely to determining whether the decision to terminate employment was arbitrary or capricious.
      • 6.4.3.1 A professional court reporter must be used to record and transcribe the hearing. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
      • 6.4.3.2 Hearings are closed to the public. Only the immediate parties to the proceeding, the responsible administrators, the respective committees and staff, and advisors and attorneys are permitted access to the hearing and/or materials collected under this Policy, unless otherwise specified by law or applicable University of North Carolina policy. Transcripts produced from the hearings are considered part of the faculty member’s personnel file and are confidential.
      • 6.4.3.3 The Reconsideration Panel Chair is responsible for conducting the hearing and maintaining order and prompt progression of the appeal and hearing process. The Reconsideration Panel Chair has authority to take action that maintains the integrity of the process to the extent possible and consistent with applicable law and policy.
      • 6.4.3.4 The Reconsideration Panel Chair shall begin the hearing by briefly introducing the purpose of the hearing, the panel’s authorization and powers, and the procedures to be followed during the hearing. The chair shall then enter into the hearing record correspondence generated prior to the hearing as the Hearing Committee’s Exhibit C, and information submitted by the Grievant and the Respondent as Exhibits G and R.
      • 6.4.3.5 The hearing shall begin with an opening introduction by the Panel Chair. This statement shall be limited to explaining the purpose of the hearing and the procedures to be followed. The panel chair explicitly will note that the review of the grievant’s appeal shall be limited solely to determining whether the decision to terminate employment was arbitrary or capricious. The parties shall be provided the opportunity to make opening and closing statements, elicit testimony from witnesses, cross examine witnesses, to provide other evidence, and to examine information and evidence presented at the hearing. Witnesses will only be present for the duration of their testimony.
      • At the conclusion of the hearing, the grievant will be given the opportunity to make a summary final statement, and then the respondent will be given the same opportunity.
  • 6.5 Procedures After the Hearing
  • After the hearing, the panel shall meet in executive session within three (3) calendar days and begin its deliberations on the decision to terminate employment. In reaching its decisions on which the panel’s written recommendations to the Chancellor shall be based, the panel shall consider only the evidence presented at the hearing and such written or oral arguments as the panel, in its discretion, may allow. The burden of proof is on the grievant and the standard of proof is preponderance of evidence. Preponderance is defined as the greater weight of evidence and its probable truth or accuracy, and not the amount of evidence presented.
    • Within fourteen (14) calendar days after the full transcript is received, the Panel shall provide the Grievant, Respondent(s), the Chair of the Faculty, and the Chancellor with a copy of its report, including materials entered as evidence, and a copy of the court reporter’s transcript of the hearing.
    • If the Reconsideration Panel Committee determines that the burden of proof has not been met by a preponderance of evidence, the report shall, by a simple unelaborated statement, so notify the faculty member, the Chair of the Faculty and the Chancellor.If the panel determines that the burden of proof has been met, the report shall so notify the faculty member, Respondent(s) the Chair of the Faculty, and the Chancellor.
    • If the Chancellor concurs in the recommendation of the Reconsideration Panel and withdraws the termination notice, the decision is final and written notification thereof shall be sent to the faculty member, the Chair of the Faculty, and the Chair of the Reconsideration Panel. If the original termination decision is not reversed, the Chancellor shall send written notice of such to the faculty member by a method that provides delivery verification, with copies to the Chair of the Faculty and the Chair of the Reconsideration Panel. The faculty member may appeal the termination to the Board of Trustees within fourteen (14) calendar days following receipt of the chancellor’s decision.
  • 6.6 Appeal of the Chancellor’s Decision
  • The appeal to the Board of Trustees shall be transmitted through the chancellor and shall be addressed to the chair of the Board. The faculty member must file a notice of appeal within fourteen (14) calendar days after the faculty member receives the chancellor’s decision. In order for the Board of Trustees to reverse or modify the chancellor’s decision, the grievant must demonstrate that the chancellor’s decision was clearly erroneous, that the chancellor’s decision violated federal or state law or UNC Code or Policy or constituent institution policy, or that the process used in deciding the grievance was materially flawed. The appeal to the Board of Trustees shall be decided by the full Board; however, the Board may delegate the duty of conducting a hearing to a standing or ad hoc committee of at least three members.
    • The Board of Trustees or its designated committee shall consider the appeal based on the written transcript of the hearing held by the Reconsideration Panel, including materials offered in evidence and the documents that constitute the record of the appeal. These include, but are not limited to, the statement of termination, the faculty member’s request for a hearing, and the report of the panel. At its discretion, the Board may hear such other evidence as it deems necessary, with the opportunity for rebuttal. The Board of Trustees’ decision shall be made as soon as reasonably possible after the chancellor has received the faculty member’s request for an appeal to the Trustees. The decision of the Board of Trustees shall be final and shall end the University’s appeal process.