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Part 4. Personnel Policies
Section V. Internal Grievance Procedures
G. Financial Exigency Appeal Procedures (Updated 2/03)
The Board Recognizes that in order to discharge its responsibilities for the University under its governance, it may become necessary to curtail, modify, or eliminate units, subunits, departments, programs, courses, or functions due to unfavorable economic conditions. The Board further recognizes that it must dedicate its resources to the achievement of the purposes and goals of the University.
As used here, "financial exigency" means a demonstrably bona fide financial crisis which adversely affects the University as a whole, or one (1) or more programs, or other distinct units. A financial exigency exists only upon Board declaration and the responsibility and authority to make such a declaration rests solely with the Board.
3. Hearing Bodies
Upon declaration of a financial exigency by the State Board of Education, the President shall:
a. Initiate the process for establishing two (2) hearing bodies, one (1) for each of the following groups: (1) academic and College of Technology faculty (hereafter "faculty"), and (2) nonclassified contract employees (nonfaculty). Each hearing body shall consist of seven (7) persons chosen as described below:
(a) The Executive Committee of the Faculty Senate will appoint two (2) tenured members to the hearing body, plus one (l) tenured alternate. One (1) of these faculty members designated by the Executive Committee will serve as the chair of the hearing body.
(b) The President will appoint two (2) members of the University Faculty.
(c) The four (4) appointed members will appoint three (3) faculty at-large, at least two (2) of whom must be nontenured.
(d) The hearing body chair is responsible for convening the hearing body within seven (7) calendar days after the appeal has been filed with the President, providing the hearing body with all available factual information pertinent to the case, and seeing that the function of the hearing body is carried out. During the appeals hearing the chair shall be the presiding officer.
(e) Proposed members of the hearing body may be excluded for cause and the appellant and the President may each exercise the right of peremptory challenge for one (1) member of the hearing body. Vacancies, however, shall be filled by the original appointing authority as described above. A challenger may make recommendations regarding areas from which the replacements are chosen.
(2) Nonclassified Contract Employees (Nonfaculty)
(a) The Executive Board of the Council of Professional Employees (COPE) shall appoint four (4) COPE members [plus four (4) alternates] to serve on the nonclassified contract employees hearing body. One (1) of these four (4) members, elected by the three (3) others, shall serve as chair.
(b) The President will appoint one (1) additional nonclassified contract member (nonfaculty).
(c) The five (5) above members will appoint two (2) additional nonclassified contract members at-large (nonfaculty).
(d) The hearing body chair is responsible for convening the hearing body within seven (7) calendar days after the appeal has been filed with the President, providing the hearing body with all available factual information pertinent to the case, and seeing that the function of the hearing body is carried out. During the appeals hearing, the chair shall be the presiding officer.
(e) Proposed members of the hearing body may be excluded for cause and the appellant and the President may each exercise the right of peremptory challenge for one (1) member of the hearing body. Vacancies, however created, shall be filled by the original appointing authority as described above. The challenger may make recommendations regarding areas from which replacements are chosen.
(a) No person shall serve on a hearing body if he or she has received notice of layoff as a result of a financial exigency, has received notice of termination or nonrenewal for any other reason, or has any appeal or litigation pending against the University. Nor shall any person be chosen to serve who has participated in any decision to layoff the appellant for reasons of a financial exigency.
(b) Any member of the hearing body who has any special relationship to any particular appellant or to the administration which might reasonably be said to raise a claim of conflict of interest shall report the facts to the parties involved.
(c) The chair of the hearing body shall disqualify members based upon the limitations noted above. New member(s) will be selected following the method of constituting the hearing body described above.
4. Hearing Scope and Grounds; Time for Appeals
a. The hearing process is not a judicial proceeding and shall be informal. The scope of any hearing shall be limited to the following grounds:
(1) Whether the agency, institution or school followed the appropriate policies and procedures and the terms of the Plan,
(2) Whether the layoff was made for constitutionally impermissible reasons, or
(3) Whether any other improper criteria were applied.
b. Limitations Upon Review. The hearing body or officer will not review the Board's decision to declare a financial exigency or the funding distribution among and within the departments and colleges of the University. The decision of the Board to declare a financial exigency is at the Board's sole discretion and may not be contested by any employee in any type of administrative hearing or appeal procedure.
c. Any nonclassified contract employee who has received notice of layoff under a declaration of financial exigency must file a formal appeal within fifteen (15) calendar days of certified receipt of such notice, by transmitting the appeal in writing to the President. The appeals document will then be transmitted to the appropriate hearing body. Copies of all relevant correspondence should accompany the appeal. In the written request for a hearing, the employee shall set down the grounds upon which the layoff or nonrenewal is alleged to be improper.
5. Hearing Procedures
The procedural requirements of formal adjudication shall not be required as proceedings shall be informal; however, the following minimal standards of procedure shall be adhered to:
a. Tape recordings shall be made of each hearing session and upon written request and payment of the cost of duplication, an appellant may obtain duplicate copies.
b. Summary notes of the hearing shall be kept by the hearing body chair or an appointee of the chair.
c. The written appeal and subsequent information presented by the appellant shall be made a part of the summary notes.
d. An appellant shall be afforded the opportunity to appear before the hearing body and discuss the issues contained in the written appeal.
e. Witnesses may be asked to appear before the hearing body by the appellant, the administration, the hearing body chair, or presiding officer and asked to give testimony which is material and directly relevant to the standard of review. Each party or hearing body may ask questions of any witness.
f. An appellant may have an advisor of his/her choice who may, in an opening statement before the hearing body, present the issues contained in the written appeal filed by the appellant.
g. The hearing body and the appellant shall be afforded access to appropriate documentation which was used in reaching a layoff decision under the appeal.
h. It shall be the responsibility of the appellant to present to the hearing body appropriate information to convince the hearing body that the layoff decision cannot be supported.
i. All votes taken during the appeals proceedings must be by written secret ballot to be kept on file for the record. The ballots shall be anonymous.
6. President's Decision
Within five (5) calendar days after the conclusion of the hearing, the hearing body shall forward to the President and the employee a report of its recommendation. The President shall render a decision on the appeal and within ten (10) calendar days after receiving that report, shall notify by Certified Mail the nonclassified employee and the chair of the hearing body of the final decision.
Employees may request that the Board hear an appeal of the final decision of the President as provided in Board Policy Section II.M.2.b and restated in topic 7 below. Such a request does not delay the effective date of the layoff.
7. Appeal to the Board
A nonclassified employee, including faculty, may elect to petition the Board to review any final personnel related decision of the President. Any written petition must be filed in the Office of the State Board of Education within fifteen (15) calendar days after the employee receives written notice of final action under the internal procedures of the University. The Board may agree to review the final action, setting out whatever procedure and conditions for review it deems appropriate, or it may choose not to review the final action. The fact that a written petition has been filed does not stay the effectiveness of the final decision nor does it grant a petition for review unless specifically provided by the Board. Board review is not a matter of right. An employee need not petition the Board for review in order to have exhausted administrative remedies for the purposes of judicial review.