Current through all regulations passed and filed through March 18, 2024
(A)
This rule applies
to complaints made against faculty members involving sexual misconduct,
workplace violence, whistleblower retaliation, and protected class
discrimination, harassment, and retaliation as defined in applicable university
policies. A faculty member may be disciplined up to and including termination
for violations established under this rule.
(B)
Initial
proceedings.
(1)
Complaints of sexual misconduct and protected class
discrimination, harassment, and retaliation must be filed with or referred to
the office of institutional equity, and complaints of workplace violence and
whistleblower retaliation separate from protected class or sexual misconduct
must be filed with or referred to the office of human
resources.
(2)
The applicable office shall perform a preliminary
assessment to determine whether the complaint warrants further investigation,
whether an informal resolution would be appropriate, whether the matter should
be referred to a different university office or process, or whether the matter
should be closed and not proceed further in the process.
(3)
If the applicable
office determines that further investigation is warranted and that an informal
resolution is not appropriate at that stage in the process, it shall notify the
complainant and respondent of its decision to pursue an investigation and shall
assign an investigator to investigate the complaint.
(C)
Investigation
determinations.
(1)
Complaints of sexual misconduct pursuant to Title IX of
the Education Amendments Act of 1972 and implementing regulations shall be
investigated pursuant to the procedures set forth in the university sexual
misconduct policy. All findings of misconduct shall be referred to the
university sanctioning committee for a recommendation for sanctions only in
accordance with this rule.
(2)
For all other
complaints subject to this rule:
(a)
The investigator shall perform the investigation in
accordance with applicable university policy and shall meet with both the
complainant and respondent and review any documentary evidence provided by
these parties. The investigator shall have the authority to gather information
relevant to the complaint, including through interviewing individuals other
than the complainant and respondent as the investigator sees fit or as
recommended by the complainant and respondent, but shall otherwise strive to
maintain confidentiality in the proceedings.
(b)
The parties shall
receive all of the rights set forth in the applicable policy, and shall further
have the right to receive the policies, standards, and procedures applicable to
the investigation.
(c)
The parties shall be given the ability to review copies
of any documentary evidence that is provided to the investigator as part of the
investigation and is relevant to the substance of the complaint. Parties shall
have the ability to respond to all such documents during the investigation, and
the ability to suggest witnesses who may be contacted as part of the
investigation within the investigator's discretion.
(d)
When fact
gathering is complete, the investigator shall prepare a written investigative
summary (preliminary report) that identifies the relevant and material facts in
the case. The investigator shall provide that document to both the complainant
and respondent for review. Each party shall have fourteen days to respond and
to identify any alleged errors or omissions in the investigative
summary.
(e)
Following review of any comments by the parties, the
investigator shall thereafter make any modifications to the report that the
investigator deems appropriate and issue a final report that will include the
summary of the facts gathered, analysis of the allegations, and findings as to
whether the applicable policy was violated under the preponderance of the
evidence standard. If a violation is found, this report shall be provided to
the university sanctioning committee to determine the appropriate sanction. If
no violation is found, the complaint shall be dismissed.
(D)
The university sanctioning committee.
(1)
The university
sanctioning committee is responsible for determining what sanction to recommend
for a policy violation.
(a)
The university sanctioning committee shall consist of
fifteen tenured members of the faculty selected by the executive committee of
faculty council from at least eight different colleges and regional campuses.
Each member of the university sanctioning committee must receive required
training before serving on the panel. Each selected person shall serve a
three-year term followed by a one-year term as an alternate member. A chair
shall be elected from the membership in the spring for a one-year term,
starting during the subsequent summer session.
(b)
The chair shall
select three members of the committee to sit on each sanctioning panel.
Panelists may not be drawn from the complainant's or respondent's tenure
initiating unit, as may be applicable. Alternates may be assigned to university
sanctioning panels at the chair's discretion.
(2)
Upon receipt of
the investigation report, the committee shall meet with the investigator to
discuss the investigation and findings, and may request clarification on any
aspect of the investigation process. The committee shall also offer both the
complainant and the respondent the opportunity to meet with the committee to
present their views as to an appropriate sanction.
(3)
In evaluating
sanctions, the investigation and sanctioning committee shall consider the
totality of the circumstances, including aggravating and mitigating
factors.
(a)
Aggravating factors may include, but are not limited
to:
(i)
The
degree to which the respondent's conduct was flagrant, egregious, or
willful;
(ii)
The strength of the evidence presented;
(iii)
Whether the
respondent has previously been found to have engaged in
misconduct;
(iv)
Whether the respondent's conduct caused injury or harm
to another individual, university property, or the university's reputation;
and
(v)
Whether the respondent had received prior warnings
about engaging in the conduct at issue.
(b)
Mitigating
factors may include, but are not limited to:
(i)
The conduct at
issue did not cause injury or harm to another individual, university property,
or the university's reputation; and
(ii)
The respondent
accepted responsibility for the misconduct.
(4)
The
committee shall have the authority to recommend sanctions as it sees fit as
long as the sanctions are commensurate with the nature of the complaint and the
committee's analysis of any aggravating and mitigating factors. Sanctions may
be of a discrete or continuing nature, but sanctions of a continuing nature
must specify the period of time in which they are applicable. Sanctions may
include, but are not limited to the following, and may further include a
combination of sanctions:
(a)
Verbal reprimand;
(b)
Written
reprimand;
(c)
Mandatory counseling or other
rehabilitation;
(d)
Reimbursement for damages to or destruction of
university property, or for misuse or misappropriation of university property,
services or funds;
(e)
Restrictions on duties or privileges;
(f)
Restriction of
access to university property or services;
(g)
Reduction of
salary base;
(h)
Reduction of twelve-month appointment to nine-month
appointment;
(i)
Reduction of full-time equivalent (FTE)
appointment;
(j)
Reduction of rank;
(k)
Revocation of
tenure;
(l)
Termination of employment.
(5)
For sexual
misconduct complaints under Title IX, the committee shall reach its sanction
decision within thirty days. This sanction decision shall be incorporated into
the findings in accordance with the university sexual misconduct policy, and a
written determination containing the combined findings and recommended sanction
shall be issued. The complainant and respondent shall have equal rights to
appeal the written determination to the provost for review in accordance with
paragraph (F) of this rule and shall not be reviewed by the respondent's dean
under paragraph (E) of this rule. All appeals must be in writing and be filed
within fourteen days after the written determination is issued. The appeal
shall be on the grounds for appeal permitted by the sexual misconduct policy
and in accordance with the procedures provided by that policy.
(6)
For all other
complaints under this rule, the committee shall complete its review and submit
its report to the respondent's dean within thirty days.
(E)
Decision by the dean.
(1)
For all
complaints under this rule except sexual misconduct complaints under Title IX,
the dean may, after reviewing the report and recommendation of the university
sanctioning committee:
(a)
Uphold the committee's proposed
sanction;
(b)
Impose what would reasonably be interpreted as an
equivalent or lesser sanction; or
(c)
Increase the
sanction.
(2)
The dean shall make a decision in twenty-one days. The
final report of the university sanctioning committee and the dean's decision
will be sent to the complainant and the respondent.
(3)
Appeals:
(a)
The dean's
decision shall be final in all cases in which the sanction imposed is a verbal
reprimand, a written reprimand, or mandatory counseling or
training.
(b)
If the dean imposes any other sanction except for
revocation of tenure or termination of employment, the respondent shall have
the right to appeal in writing to the provost for review.
(c)
If the dean
imposes a sanction that revokes tenure or terminates employment, the matter
shall be automatically appealed to the provost.
(d)
In all appeals,
whether discretionary or automatic, the respondent may identify their position
on the case in writing to the provost. All such submissions and all
discretionary appeals must be filed within fourteen days after notice of the
dean's decision was mailed.
(F)
Review of appeals
by the provost.
(1)
After reviewing the record of a case upon appeal or
upon referral by the dean, the provost may:
(a)
Affirm the dean's
sanction or the sanction imposed by the university sanctioning committee for
sexual misconduct complaints under Title IX;
(b)
Impose what would
reasonably be interpreted as an equivalent or lesser sanction to the
sanction;
(c)
Increase the sanction; or
(d)
In the event that
the provost determines that substantial new evidence exists (evidence that was
not available at the time of the initial investigation and that may reasonably
have affected the finding of misconduct) or there was conflict of interest or
procedural error in the previous steps of the process that resulted in material
harm or prejudice to the respondent, the provost shall return the case back to
a previous step of the process for further proceedings as
appropriate.
(2)
The provost shall make a decision within fourteen days
of receiving materials from the dean, respondent or complainant as applicable.
Complainant and respondent shall each have the right to respond to a filing by
the other party.
(3)
For complaints of sexual misconduct under Title IX, the
provost's decision shall be final.
(4)
For all other
complaint subject to this rule:
If the
provost affirms the dean's decision to terminate employment, or imposes or
upholds a sanction set forth in paragraph (D)(4)(vii) to (D)(4)(xii) of this
rule, the respondent may appeal to the faculty hearing committee. In all other
cases, the provost's decision shall be final.
(5)
An appeal by the
respondent must be in writing and must be filed with the faculty hearing
committee within fourteen days after notice of the provost's decision was
mailed. Appeals to the faculty hearing committee shall be limited to one or
more of the following grounds:
(a)
The sanction is disproportionate to the violations
committed in view of the aggravating and mitigating factors;
(b)
Substantial new
evidence has been discovered (evidence that was not available at the time of
the initial investigation and that may reasonably have affected the finding of
misconduct); or
(c)
There was conflict of interest or procedural error in
the previous steps of the process that resulted in material harm or prejudice
to the respondent.
(G)
The faculty
hearing committee.
(1)
Within fourteen days of receipt of an appeal from a
respondent the faculty hearing committee established by rule 3335-5-48.10 of
the Administration Code shall convene a hearing panel to consider the complaint
and to provide a recommendation to the president regarding the appropriate
action to be imposed. The respondent and the provost or designee may each make
one peremptory challenge to the seating of one person on the hearing panel and
one peremptory challenge to the selection of a presiding
officer.
(2)
The parties to this hearing shall be the respondent and
the provost, or designee.
(3)
The hearing panel may restrict the attendance of
persons at the proceedings. However, the respondent and the provost shall have
the right to have one observer of their choosing present at all
times.
(4)
The provost, or designee, shall present the case to the
hearing panel. In presenting the case, the provost may be advised and
represented by the general counsel, or designee. The provost shall have the
right to present witnesses and evidence and to examine witnesses and evidence
presented by the respondent.
(5)
Respondents shall
have the right to represent themselves or to be represented by legal counsel or
any other person of their choice. The respondent shall have the right to
examine the witnesses and evidence presented against them in the hearing, to
present witnesses and evidence on their own behalf, and to refuse to testify or
be questioned in the proceedings without prejudice to their
cause.
(6)
The hearing panel shall receive testimony and other
evidence as it deems relevant and material to the issues appealed, and may
decline to receive evidence presented by the provost or the respondent that is
not material and relevant to the appeal. However, in all proceedings, the
hearing panel shall afford complainants equal rights to participate in any
proceeding and the ability to present a response to the respondent's claims as
applicable.
(7)
An electronic recording shall be kept of all
proceedings at a hearing panel. The recording shall be conveyed by the chair of
the faculty hearing committee to the office of academic
affairs.
(8)
At the conclusion of the proceedings, the hearing panel
shall make separate written conclusions with respect to each substantive issue
raised at the hearing.
(a)
If the respondent challenges the appropriateness of the
sanction, the faculty hearing committee shall set forth what their recommended
sanction is in accordance with the factors set forth in paragraph (D)(3) of
this rule.
(b)
If the respondent alleges conflict of interest,
procedural error, or substantial new evidence, the faculty hearing committee
shall set forth what their conclusions are and whether they believe that
further proceedings are appropriate.
(9)
The faculty
hearing committee's report, together with a recording of the proceedings, shall
be transmitted to the president, provost, and respondent within sixty days of
the date that the final hearing panel is convened.
(H)
The
president.
(1)
Upon receipt of the written recommendation and a record of
the proceedings from a hearing panel, the president shall review the matter.
The president may:
(a)
Impose any sanction less than termination of employment
whether or not it accords with the recommendation of the hearing
panel;
(b)
Recommend to the board of trustees termination of
employment on such terms and conditions as the president may deem
advisable;
(c)
Remand the case to the hearing panel for
reconsideration; or
(d)
In the event that the president determines that
substantial new evidence exists (evidence that was not available at the time of
the initial investigation and that may reasonably have affected the finding of
misconduct) or there was conflict of interest or procedural error in the
previous steps of the process that resulted in material harm or prejudice to
the respondent, the president shall return the case back to a previous step of
the process for further proceedings as appropriate.
(2)
The president's
decision on all sanctions less than termination of employment is
final.
(3)
Any decision of the president shall be communicated in
writing to the hearing panel, the provost, and the respondent.
(4)
The president
shall make a decision within thirty days.
(I)
Board of
trustees.
The board of trustees, in
reviewing and deciding upon a case in which termination of employment has been
recommended, has the ultimate authority to take that action necessary to
promote the best interest of the university and to protect the rights of the
individual. In such cases, the board shall have the discretion to decide
whether the respondent has an opportunity to present to it arguments in
writing, or in person, or both.