Formal Hearing

No. 9-12 Rev. Date 12-1-87




NOTE: EXCEPTIONS TO THE TIME DELINEATED DEADLINES CONTAINED HEREIN MAY BE MADE BY THE CHAIR OF THE FACULTY BOARD OF REVIEW UPON A SHOWING OF GOOD CAUSE.

IN ADDITION, AT ANY STAGE OF THESE PROCEEDINGS, THE RESPONDENT AND THE ACCUSER MAY GO BACK TO AN INFORMAL CONCILIATORY MEETING AND SETTLE THE MATTER IN ACCORDANCE WITH THE PROCEDURES OUTLINED IN PPM 9-11, INFORMAL PROCEDURES AND THE INFORMAL CONCILIATORY MEETING.

I. REFERENCE

PPM 9-20, Security at Weber State University Hearings

II. PRE-HEARING PROCEDURES

A. Any person may file a formal charge with the chair of the Faculty Board of Review, but only after the respondent (faculty member or appropriate administrative officer) has been informed of the nature of the alleged infractions and an informal conciliatory meeting has been held or the matter has been transferred to the formal hearing level, as described in PPM 9-11, Informal Procedures and the Informal Conciliatory Meeting.

Within ten working days following receipt of a formal charge, the Faculty Board of Review may make a non-binding recommendation that an informal conciliatory meeting be initiated, if this meeting was not held previously. Furthermore, the Faculty Board of Review may in its discretion decide not to hold a formal hearing on the charge if it is determined to be frivolous, without merit, based on purely personal grounds or on issues that are beyond the boundaries established by the statement of rights and responsibilities contain in PPMs 9-2 through 9-8, or if it is determined to be an abuse of the intent of due process. The decision to dismiss the charge, together with reasons therefore, shall be submitted in writing to both the accuser and the respondent. If a decision is made to dismiss the formal charge, any appeal must be submitted to the president within ten working days of receipt of the decision.

Within ten working days following receipt of a formal charge, the chair of the Faculty Board of Review shall inform the respondent in writing of the formal charge. No adverse action or sanction may be taken against a respondent until notification of the charge is given to the respondent except as may be mutually agreed upon in the administrative disposition resulting from the informal conciliatory meeting as described in PPM 9-11, Informal Procedures and the Informal Conciliatory Meeting.

1. Written notice of the formal charge from the chair of the Faculty Board of Review shall be delivered personally or by certified mail, return receipt requested, to the respondent. Such notice shall contain the following:

a. A concise statement of the formal charge, summarizing the facts, conduct or circumstances reported to constitute failure to comply with the standards set forth in this document (PPMs 9-3 to 9-8). A copy of the applicable canons and regulations shall be included with this notice.

b. A statement of the action proposed to be taken in the event the allegations of noncompliance are sustained by the Faculty Board of Review.

c. The time and place of the pre-hearing conference and of the formal hearing before the Faculty Board of Review.

d. The rights and responsibilities of the respondent and the accuser in the formal hearing. This provision shall be deemed satisfied if a copy of PPM 9-13, Respondent's and Accuser's Rights in Formal Hearings, is sent to the respondent and accuser along with a copy of the formal charge.

e. The current membership of the Faculty Board of Review.

2. A respondent who wishes to contest the formal charge shall, within ten working days of receiving the charge, file a written answer to the charge with the chair of the Faculty Board of Review. Emergencies may be grounds for a reasonable extension of the time within which an answer must be filed, but such emergencies must be of a serious and compelling nature. Failure to do so will result in the entry of the respondent's default in the premises and appropriate action will be taken by the chair to refer the matter to the Faculty Board of Review of its recommendation. In extreme cases where the respondent is physically, mentally or legally unable to respond to the charges or unable to meet assigned academic responsibilities, the respondent shall not be subject to sanctions on the basis of that fact alone.

3. When a formal charge has been filed against a respondent and criminal or civil charges on the same or closely-related acts are pending in a court of law, the formal hearing proceedings under University policy may be postponed, at the discretion of the Board after considering the arguments of the parties.

4. The chair of the Faculty Board of Review shall schedule the formal hearing for a time no later than 45 working days from the time the formal charge was initially received. An extension of time for formal hearing preparation may be granted by the chair if requested by the respondent or accuser for good cause.

B. At least ten working days prior to the date set for the formal hearing a pre-hearing conference will be held. The purpose of the pre-hearing conference is to facilitate and expedite the formal hearing process. The following people should be in attendance at the pre-hearing conference:

1. An administrative officer of the University designated by the president

2. The chair of the Faculty Board of Review

3. The respondent

4. The accuser(s)

5. Representatives for the respondent and the accuser may also be in attendance

6. If deemed appropriate by the chair of the Faculty Board of Review, the University Counsel may also attend

These individuals shall decide the parameters of and delineate the issues to be examined at the formal hearing. At this pre-hearing conference the respondent and accuser shall make available to each other and to the chair upon request, a list of proposed witnesses to be called and the documentary evidence expected to be introduced at the hearing. Nothing in this paragraph shall, however, limit the parties involved from bringing additional evidence or requesting additional witnesses during the formal hearing, subject to approval by the Faculty Board of Review.

At the pre-hearing conference, the chair of the Faculty Board of Review shall also decide if the respondent and accuser may question (cross-examine) each other and the witnesses directly during the formal hearing, or if questions must be submitted to members of the Board for their inquiry to the accuser, respondent and witnesses. In all cases, the parties shall be given a reasonable opportunity to appear and testify, call witnesses, present evidence and comment on issues. Generally, questioning will be conducted by Board members; however, upon good cause shown, the chair may allow cross-examination by parties or by parties' representatives.

At the pre-hearing conference each party may, with stated cause, challenge the composition of the Faculty Board of Review. In the event that member(s) of the Faculty Board of Review (other than the chair) are challenged, the chair shall rule on the challenges. In the event that the challenge is against the chair, the Executive Committee of the Faculty Senate shall rule on the challenge. Appointment for the replacement member(s) shall be determined by the Executive Committee of the Faculty Senate, as provided in Article VI, Section 7 of PPM 1-13, Faculty Senate Constitution and Bylaws.

C. The pre-hearing conference may be continued or postponed upon good cause shown by any of the participating parties.

III. FORMAL HEARING PROCEDURES

A. The function of the formal hearing is for the Faculty Board of Review to make an informed judgment according to the generally accepted standard of the academic profession and to determine the significance of that judgment for the relationship between the respondent, the peers of the respondent and the institution. Members of the Faculty Board of Review serve as both jury and judges. As jury members, they determine the nature, quality and weight of the evidence presented to them and react as they see fit to the arguments they hear. As judges, they determine whether the evidence is relevant, decide which institutional canons or regulations are applicable and how they should be interpreted and used in the specific case before them, examine the relationship between institutional policies and procedures and those of the profession in general and recommend appropriate sanctions or dispositions of the case.

B. Attendance at the formal hearing should include, in addition to the members of the Faculty Board of Review, those persons in attendance at the pre-hearing conference as specified in I, B above. A substitute or representative for any of the specified individuals may attend upon approval of the chair. If the accuser is a student or the charge involves a violation of the policy manual dealing with students, two students, designated by the WSUSA executive officers and confirmed by the Executive Committee of the Faculty Senate, may, upon the recommendation of the Faculty Board of Review, be added to the Board for the purpose of reviewing this specific case. A quorum shall be constituted if no more than two faculty members of the Faculty Board of Review are absent. The Board may continue or postpone the hearing in the event that it determines that the absence of one or more individuals would jeopardize the fairness of the proceedings.

C. Hearings shall be open to the public unless the respondent or accuser requests that it be declared a closed hearing and the Faculty Board of Review, in consultation with the University Counsel, determines that a closed hearing would be appropriate under the circumstances. The chair shall provide a written response to the request for a closed hearing, with reasons, within ten working days of receipt of the request.

D. Publicity about the hearing by anyone involved in the proceedings should be avoided.

E. Relevant records and/or documentary evidence pertaining to the case under review may be requested by either the chair of the Faculty Board of Review or the respondent. Compliance with such a request is an obligation of employment of any employee or officer of the University, except that self-incrimination and divulgence of privileged or confidential communication or records, as recognized either by law or published University regulations, are exempt.

F. The meeting shall be conducted as expeditiously as possible in order to produce a fair and reasonable judgment. The number and duration of meetings required to reach a recommendation shall be at the discretion of the Board.

G. Meetings shall be guided by the following considerations. Mere failure to follow any of the guidelines, however, without a showing of prejudice, shall not be construed as sufficient grounds for a charge of procedural error.

1. The meeting shall be called to order by the chair. The chair shall do the following:

a. Introduce all persons in attendance

b. State the formal charge being considered

c. Remind all participants of the confidential nature of the proceedings

d. Inform both accuser and respondent of the right of the Board to meet in closed session for deliberative proposes and briefly describe the general guidelines for how the meeting will be conducted

e. Briefly describe the role of the formal hearing in the due process procedure

f. Inform those in attendance that a record of the meeting is being kept in both written and electronically recorded form. Written minutes shall be taken and transcribed by an individual qualified to do so. (It is not necessary, however, for this person to be a certified court reporter, nor is it necessary for a verbatim record to be transcribed or typewritten. A verbatim record is deemed to have been kept by the electronic recording.)

2. The formal hearing will normally begin with a statement by the accuser which specifies the grounds and general evidence upon which the charge is based. Witnesses and other evidence supporting the charge shall be presented at this time. The members of the Faculty Board of Review shall have the right to question (cross-examine) the accuser and the witnesses at the completion of their testimony. The respondent may also have this right, if it was so decided at the pre-hearing conference, or if unanticipated testimony or evidence is presented that would justify cross-examination, in the discretion of the Board. The Board may at any time limit both the nature and duration of such testimony or cross-examination when it is deemed inappropriate, irrelevant, repetitious or otherwise of little use in the proceedings.

3. Having heard the evidence supporting the charge, the chair of the Faculty Board of Review shall allow the respondent to make an opening statement and to present evidence, testimony or witnesses supporting the respondent's position in the matter. The members of the Faculty Board of Review shall have the right to question (cross-examine) the respondent and the witnesses at the completion of their testimony. The accuser may also have this right, if it was so decided at the pre-hearing conference, or if unanticipated testimony or evidence is presented that would justify cross-examination, in the discretion of the Board. The Board may at any time limit both the nature and duration of such testimony or cross-examination when it is deemed inappropriate, irrelevant, repetitious or otherwise of little use in the proceedings.

4. In the foregoing procedures involving the introduction of evidence, it is understood that each party may have a representative present. This proceeding, however, is not to be bound by formal trial procedures or by rules of evidence established for the civil and criminal courts and the role of the representatives shall be advisory only and not that of trial lawyers. Their actions shall be subject to approval and limitation by the chair. The intent of this provision is to insure that the respondent and the accuser are afforded their right to representation while at the same time facilitating the academic nature of the proceedings. Exceptions to the role specified here for the representative may be made by the Faculty Board of Review for good cause.

5. Either the respondent or the accuser may request the calling of witnesses as provided for in the pre-hearing conference (I, B above). The Faculty Board of Review may, however, in its sole discretion, limit the number of witnesses called if it is determined that little useful or new information will be provided by additional witnesses.

6. The Faculty Board of Review may hear testimony in whatever form of presentation it deems appropriate (e.g., verbal, written, response to examination and cross-examination, etc.). The respondent and the accuser shall, however, have the right to present a brief summary or closing statement.

7. After hearing the testimony presented and determining that it has sufficient evidence upon which to base a fair and reasonable decision, the Faculty Board of Review shall meet in closed session for the purpose of deliberation and formulation of its recommendation to the president. This deliberative session shall be closed to all persons except the elected faculty members of the Faculty Board of Review. (In the event that student representative(s) were added to the Board for the case at hand, these students shall be included in the deliberations and shall be allowed to vote.) No written or other verbatim transcript of this closed deliberative session shall be kept. The deliberations at this point are in the nature of a jury deliberation and are to be considered closed, confidential and private.

8. Throughout the formal hearing it is the responsibility of the chair to insure that written minutes of the meeting are produced in a timely and accurate manner (II, G, 1, f above). A copy of the minutes and/or the electronic record shall be made available to the accuser, respondent, administrative officer of the University as designated by the president and/or members of the Faculty Board of Review upon request; and the least costly copy shall be provided without fee. The disposition of the records of the formal hearing shall comply with the provisions of the Utah Archives and Records Services and Information Practices Act or other applicable law.

IV. FINDINGS AND REPORT OF THE FORMAL HEARING

A. A majority vote of those in attendance shall control the action of the Faculty Board of Review. The chair shall be entitled to vote. All such voting and deliberation leading to a vote shall be conducted in closed session. When the Board has concluded its deliberations, it shall prepare a written statement containing the following:

1. The decision

2. The reasons for the decision

3. The recommendation

Copies shall be given to the respondent, the accuser and the president. A copy shall be retained in the minutes of the formal hearing.

B. In the case of a tie vote, the recommendation shall be to dismiss the formal charge. However, if the Faculty Board of Review finds a violation sufficient to warrant disciplinary action, the Board shall recommend such action as authorized by PPM 9-14, Disciplinary Actions, and which is deemed appropriate under the entire circumstances of this case. Legal and/or University Counsel should be consulted before the Board makes its recommendations. The Board's recommendation shall be forwarded to the president for consideration and implementation.

C. The respondent or accuser may appeal to the president. A written appeal to the president must be made not more than ten working days from the date of the written recommendation of the Board.

D. The president shall be guided, but not in all situations bound, by the recommendation of the Faculty Board of Review. If, however, the Faculty Board of Review finds that neither disciplinary action nor sanctions should be imposed, the president may not alter that recommendation and is bound thereby. The president shall make a decision not less than ten nor more than twenty working days from the date of the written recommendation of the Board. The president may do the following:

1. Decrease the disciplinary action

2. Offer a substitute action consistent with PPM 9-14, Disciplinary Actions, provided the Faculty Board of Review is agreeable

3. May recommend that the Faculty Board of Review reconsider the recommended disciplinary action(s)

E. There shall be no appeal or review of the Board's recommendation beyond the president, except as provided in the statutes or the civil courts.


Weber State UniversityOgden, Utah 84408

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