The Faculty Hearing Board on Academic Freedom and Tenure serves as the Hearing Committee provided for in the University’s Bylaws (article VI, (I) and has two main duties as outlined in the Faculty Bylaws (I.J.1.e.2). These duties are to serve as a hearing committee in cases of faculty dismissal and in other professional grievances which individual faculty members may bring to it. The Hearing Board’s ruling takes the form of a recommendation to the Provost--or to the President, if the Provost’s Office has been directly involved in the case. Except for appeals directly to the Provost, President, or University Board of Directors, there is no provision within the University governance structure for appeals beyond this Board.

The disposition of each case brought before the Hearing Board shall be included in the Board’s annual report to the faculty. Such reports shall identify the case and provide a brief summary of the Board’s ruling and reasoning.

Although the University’s Bylaws state that one of the main duties of the Board is to hear cases of faculty dismissal, it is rare that such an event occurs. Instead, almost all cases brought before the Hearing Board involve either denial of tenure or some other professional grievance. The Hearing Board has developed separate processes (described below) to handle the three types of cases (dismissal, denial of tenure or non-renewal of a probationary appointment, and all others). The following definitions apply to all processes:

1. Probationary appointment - an appointment in which the faculty member has not been granted continuous tenure, but which will be renewed automatically on an annual basis unless the faculty member is notified otherwise, often referred to as a tenure-track appointment.
2. Temporary appointment - an appointment for a limited term (usually one semester or academic year ) which will not be automatically renewed and in which there is no possibility of the faculty member being considered for tenure.
3. Day - a 24-hour period, including weekends but not official breaks, during which school is in session (excluding the summer sessions).
4. Grievant - any individual with faculty status initiating a grievance under these procedures.
5. Respondent - the faculty member(s), administrator(s), committee (s), or board(s) against whom the complaint leading to a grievance is lodged.

DISMISSAL

Dismissals due to a declaration of financial exigency are described elsewhere in the Faculty Manual. As used in this section, the term “dismissal” refers to the discharge of 1) a tenured faculty member, or 2) a faculty member with a temporary or probationary appointment before the end of the specified term, in which the faculty member is not permitted to finish the term of his or her contract. It does not include cases in which tenure has not been granted or in which a temporary or probationary faculty member has been notified that his or her appointment will not be renewed, but who is permitted to finish the contract term.

Dismissal of a faculty member is an extremely serious undertaking and requires substantial grounds. Except in cases of moral turpitude (Article VI, section 1(F) of the University Bylaws), adequate cause for such dismissal will be related, directly and substantially, to the fitness or performance of the faculty member in his or her professional responsibilities as a member of the Wittenberg faculty (as described elsewhere in the Faculty Manual). In particular, dismissal will not be used to restrain faculty members in the exercise of academic freedom or other rights of American citizens. If the Hearing Board finds that the dismissal was based on causes unrelated to professional responsibilities or moral turpitude, it invariably will have to rule in favor of the concerned faculty member. In addition, the Board can fulfill its duties adequately only if proper procedures have been followed prior to its involvement. Unless these initial procedures have been followed, the Hearing Board must support the faculty member’s petition against dismissal. These procedures are as follows:

Formal dismissal will be preceded by all of the following:

1. discussions between the faculty member and the provost to work toward a mutual settlement;
2. informal inquiry by the Faculty Personnel Board which may, failing to effect an adjustment, determine whether in its opinion dismissal proceedings should be undertaken. Such an opinion will not be binding upon the President.
3. a written statement of charges, framed with reasonable particularity by the President of the Provost. This statement will be forwarded to the Hearing Board.

1. The individual concerned will have the right to be heard initially by the Faculty Hearing Board on Academic Freedom and Tenure. If the faculty member chooses to waive that right, he or she must notify the Hearing Board in writing within 15 days of the forwarding of written charges. The faculty member may continue in his or her present capacity pending a final decision by the Hearing Board, unless immediate harm to any party is threatened by continuance. In such a situation, the faculty member will be suspended, or assigned to other duties in lieu of suspension. Before a suspension occurs, the administration will consult with the Hearing Board concerning the propriety and conditions of the suspension. Salary will continue during the period of the suspension, as per Article VI, Section 1 (I), 7 of the University Bylaws.
2. At the beginning of the process, members of the Hearing Board deeming themselves disqualified for bias or interest shall remove themselves from the case. Each party will have a maximum of two challenges with or without stated cause. Members of the Board who are removed shall have neither voice nor vote in the case, and will not attend the pertinent hearings. The Faculty Executive Board will appoint temporary replacements for removed Board members.
3. The Board may hold pre-hearing meetings with the individual parties, or, with the consent of the parties concerned, joint meetings, in order to (i) simplify the issues (ii) effect stipulations of facts, (iii) provide for the exchange of documentary or other information, and (iv) achieve such other appropriate pre-hearing objectives as will make the hearing fair, effective, and expeditious.
4. Service of notice of hearing with specific changes in writing will be made at least twenty days prior to the hearing. The faculty member may waive appearing before the Hearing Board or may respond to the charges in writing at an time before the hearing. If the faculty member does not appear, but denies the charges or asserts that the charges do not support a finding of adequate cause, the Board will evaluate all available evidence and rest its recommendation upon the evidence in the record.
5. During the proceedings the faculty member will be permitted to choose an academic and/or legal counselor at his or her own expense (Article VI, Section 1 (I), 3 of the University Bylaws). The University will also have the right to be represented by counsel during the proceedings. If the faculty member’s legal counsel is present at the hearings, the University’s counsel may also be present. The role of academic and legal counsels during the hearings will be limited to advising their clients.
6. All hearings will be private, but will be tape recorded and a transcription made at the request of either party. The University will bear the cost of making the transcription.
7. The burden of proof that adequate cause exists rests with the University and shall be satisfied only by clear and convincing evidence in the record considered as a whole.
8. The Board will grant adjournments to enable either party to investigate evidence as to which a valid claim of surprise is made.
9. The faculty member will be afforded an opportunity to obtain necessary witnesses and documentary or other evidence. The administration will cooperate with the Hearing Board in identifying witnesses and make available documentary and other evidence.
10. The faculty member and the administration, but not their counsels, will have the right to confront and cross-examine witnesses. Where the witnesses cannot or will not appear, but the committee determines that the interests of justice require admission of their statements, the Board will identify the witnesses, disclose their statements and if possible provide for interrogation.
11. In hearing charges of incompetence, the testimony shall include that of qualified faculty members from this or other institutions of higher education.
12. The hearing Board will not be bound by strict rules of legal evidence, and may admit any evidence which is or probative value in determining the issues involved. Every possible effort will be made to obtain the most reliable evidence available.
13. The findings of fact and the decision will be based solely on the hearing record.
14. Except for such simple announcements as may be required, covering the time of the hearing and similar matters, public statements and publicity about the case by either the administration officers or Hearing Board members are prohibited until the proceedings have been completed, including consideration by the Board of Directors. To facilitate the work of the Hearing Board, the faculty member is also advised, although not required, to refrain from making public statements until the proceedings have been completed.
15. A simple majority vote of the members of the Hearing Board will be used to determine the Board’s decision. A tie vote will be decided in favor of the faculty member.
16. The president and the faculty member will be notified of the decision in writing. This final report shall summarize the arguments presented by both sides and state the ruling and reasoning by which the Board reached its decision. If the Board has concluded that adequate cause for a dismissal has been established, but that a penalty less than dismissal would be more appropriate, it will so recommend, with supporting reasons.
17. If the final report concludes that adequate cause for dismissal has not been established by the evidence in the record, and the President rejects the report, he or she will state the reasons for doing so, in writing, to the Board and to the faculty member, and provide a 15-day opportunity for response before transmitting the case to the Board of Directors, along with any responses, for action. In order to protect the right to a final appeal, responses may include dissenting opinions from the Board and/or the faculty member.

A. Complaints of Violation of Academic Freedom

If a faculty member on probationary appointment alleges that a decision for non-reappointment or denial of tenure was a violation of academic freedom the allegation shall be given preliminary consideration by the Faculty Hearing Board on Academic Freedom and Tenure under the authority of the University’s Bylaws Article VI, Section 1(H). Such allegation must occur within thirty days of the official notification of non-reappointment or denial of tenure. The allegation shall be accompanied by a statement that the faculty member agrees to the presentation, for the consideration of the Hearing Board, of such reasons and evidence as the University may allege in support of its decision.

PROCEDURES TO BE USED IN CASES OF DENIAL OF TENURE OR NON-REAPPOINTMENT OF PROBATIONARY CONTRACTS

1. At the beginning of the process, members of the Hearing Board deeming themselves disqualified for bias or interest shall remove themselves from the case, either at the request of a party or on their own initiative. Each party will have a maximum of two challenges with or without stated cause. Members of the Board who are removed shall have neither voice nor vote in the case, and will not attend the pertinent hearings. The Faculty Executive Board will appoint temporary replacements for removed Board members.
2. The Board may hold pre-hearing meetings with the individual parties, or, with the consent of the parties concerned, joint meetings, in order to (i) simplify the issues, (ii) effect stipulations of facts, (iii) provide for the exchange of documentary or other information, and (iv) achieve such other appropriate pre-hearing objectives as will make the hearing fair, effective, and expeditious. Such meetings will allow the Hearing Board to determine if there is probable cause for the faculty member’s allegation. if the Board finds that no probable cause exists, the process terminates an the faculty member’s appeal is denied.
3. Within ten days of receipt of the grievant’s statement, the Chair of the Hearing Board will convene the Board, which shall hold hearings on the grievance. The Board will rule by a simple majority, within thirty days from the end of the hearings, in favor of the grievant or the respondent. Alternatively, the Board may fashion its own proposal with the consent of two-thirds of is membership.
4. All hearings will be private.
5. The burden of proof rests with the faculty member bringing the grievance.
6. The faculty member will be afforded an opportunity to obtain necessary witnesses and documentary or other evidence. The administration will cooperate with the Hearing Board in securing witnesses and making available documentary and other evidence.
7. In hearing charges of incompetence, the testimony shall include that of qualified faculty members from this or other institutions of higher education.
8. The Hearing Board will not be bound by strict rules of legal evidence, and may admit any evidence which is of probative value in determining the issues involved. Every possible effort will be made to obtain the most reliable evidence available.
9. The findings of fact and the decision will be based solely on the hearing record.
10. Except for such simple announcements as may be required, covering the time of the hearing and similar matters, public statements and publicity about the case by either the administration officers or Hearing Board members, are prohibited until the proceedings have been completely, including consideration by the Board of Directors. To facilitate the work of the Hearing Board, the faculty member is also advised, although not required, to refrain from making public statements until the proceedings have been completed.
11. A simple majority vote of the members of the Hearing Board on Academic Freedom and Tenure will be used to determine the Board’s decision. A tie vote will be decided in favor of the respondent.
12. The final report of the Faculty Hearing Board shall summarize the arguments presented by both sides and state its ruling and reasoning. Either party in the grievance may have 15 days to attach an appendix to the report, which will be forwarded to the Provost or to the President.

Although he Bylaws of the University specifically mention only violations of academic freedom s legitimate grounds for grievances, the Hearing Board may receive other types of complaints (e.g., allegations of impermissible discrimination or inadequate consideration) regarding denial of tenure or non-reappointment of probationary contracts. Such cases will be handled in accordance with the procedures listed above.

ALL OTHER CASES OF PROFESSIONAL GRIEVANCES

Preface

The affairs of the University should be conduced with scrupulous care and attention to just outcomes. However, an institution may not always achieve these ends and members of the faculty may believe that they have been treated unfairly. It is therefore necessary to establish a procedure for addressing professional grievances. It is expected that the procedure will be initiated only after an individual has made a sincere effort to secure satisfaction through existing informal channels (e.g., discussions with a department Chair, the Provost, the Faculty Personnel Board, or other appropriate places).

Purpose

These procedures have the following general purpose: to ensure that faculty members, in matters involving salary or other matters of professional concern, are not adversely affected by decisions resulting from any of the following: a) failure on the part of others to comply with departmental or University policies and procedures; b) errors of interpretation or perception; c) prejudice or arbitrary and capricious actions: d) violations of academic freedom.

Definitions

1. Faculty Grievance Officer - a faculty member selected by the chair of the Faculty Hearing Board on Academic Freedom and Tenure from the current membership of the Board. The Grievance Officer serves for the duration of a specific grievance case and will not vote on issues related to the outcome of that case. When either the grievant or the respondent alleges conflict of interest with the Faculty Grievance officer, the Hearing Board shall appoint a substitute Grievance Officer of the case in question from its remaining membership. The allegation of conflict of interest shall be made in writing to the chair of the Hearing Board.

2. When a faculty member becomes aware of an event or situation which might lead to the filing of a grievance, he or she should first make a prompt effort to secure satisfaction through existing informal channels. If this effort fails, the grievant shall notify the Chair of the Faculty Hearing Board of intent to begin proceedings. This should be done as promptly as possible under the circumstances, within thirty days of the event which precipitates the grievance. There are times, however, when the significance of an event is not apparent until its influence on subsequent events is realized. There are also times when a faculty member might feel that a grievance against a particular event might jeopardize an ongoing process. In cases such as these, grievances may be filed at a later time if their connection to current events is made clear by the grievant. The Hearing Board on Academic Freedom and Tenure reserves the right to evaluate the reasons for the delay and to decide whether or not to hear the grievance. The grievance itself must be presented as a written document which identifies the respondent, discusses the specific policy, action, or procedural errors, and proposes a suitable remedy. A copy of this statement will be sent to the respondent by the Chair of the Hearing Board. If, at this point, the Hearing Board deems that the grievance is without merit or that the grievant has not succeeded in making a prima facie case, the process terminates and the grievance is denied.
3. Within twenty days after the respondent receives the grievant’s written statement, both parties will meet with the Faculty Grievance Officer, together or separately, to discuss the issues and attempt to resolve them. Other persons may attend these meetings by consent of all parties involved. A record of these meetings will be kept by the Faculty Grievance Officer. If a settlement is reached at this point, the process terminates.
4. If a settlement is not yet reached, the respondent will, within fifteen days of the meeting with the Faculty Grievance Officer, submit to the Chair of the Hearing Board a document addressing the grievant’s claims and outlining a specific resolution to the problem. A copy of this document will be sent to the grievant by the Chair of the Hearing Board.
5. If the grievant agrees to the respondent’s proposal, the process will end. If no agreement is reached, the grievant will, within seven days after receiving the proposal, notify the Chair of the Hearing Board in writing of the intent to continue the grievance process.
6. At this point, members of the Hearing Board deeming themselves disqualified for bias or interest shall remove themselves from the case. Each party will have a maximum of two challenges with or without stated cause. Members of the Board who are removed shall have neither voice nor vote in the case, and will not attend the pertinent hearings. The Faculty Executive Board will appoint temporary replacements for removed Board members.
7. Within ten days of receipt of the grievant’s statement, the Chair will convene the Faculty Hearing Board, which shall hold hearings on the grievance. The Board will rule by a simple majority, within thirty days from the end of the hearings, in favor of the grievant or the respondent. Alternatively, the Board may fashion its own proposal with the consent of two-thirds of its membership.
8. Except for such simple announcements as may be required, covering the time of the hearing and similar matters, public statements and publicity about the case by either the administration officers or Hearing Board members are prohibited until the proceedings have been completed. To facilitate the work of the Hearing Board, the faculty members are also advised, although not required, to refrain from making public statements until the proceedings have been completed.
9. The final report of the Faculty Hearing Board shall summarize the arguments presented by both sides and state its ruling and reasoning. Either party in the grievance may have 15 days to attach an appendix to the report, which will be forwarded to the Provost or to the President.
10. If the respondent fails at any stage to comply with these procedures, the case will proceed to the Hearing Board, which shall devise an appropriate solution. If the grievant fails to comply, the case terminates.