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215. Committee on Privilege and Tenure – Grievance Cases

[Senate Bylaw 335 (En 23 May 01)]

  1. Scope

    1. Any member of the Academic Senate may grieve to the Divisional Privilege and Tenure Committee (hereafter, the Committee) that the member's rights or privileges have been violated. Before considering the grievance and determining whether a formal evidentiary hearing is warranted, the Committee may require that the grievant shall first exhaust all appropriate administrative avenues of redress. Administrative avenues of redress include, but are not limited to, presentation of the grievance along with a request for an administrative remedy to the department chair, dean, or other appropriate academic administrator with authority to investigate and offer a remedy.
    2. In cases of personnel review involving tenure, promotion, or reappointment, such grievances may be based only on allegations: (a) that the procedures were not in consonance with the applicable rules and requirements of the University or any of its Divisions, and/or (b) that the challenged decision was reached on the basis of impermissible criteria, including (but not limited to) race, sex, or political conviction. The committee shall be empowered to determine the validity of the grievances under (a) or (b) but shall not be empowered to reevaluate the academic qualifications or professional competence of the grievant.
  2. Preliminary Procedure in Grievance Cases.

    1. For the purpose of advising Senate members on the available relief in case of a potential grievance, each Division, in accordance with specifications to be determined by such Division, shall appoint an individual or panel (preferably former members of the Privilege and Tenure Committee, but not current members) who shall be available to each grievant to discuss the claim of violation of rights and privileges and to provide advice on the appropriate procedure to be followed. Such individuals or panel members shall not serve as representatives of any grievant, and they shall maintain full confidentiality to the extent allowable by law. An aggrieved Senate member may consult with the individuals appointed under this provision with the understanding that the grievance will not be disclosed and that the consultation shall not constitute notice of the grievance to the campus or University administration.
    2. Upon receipt of a written grievance, the Privilege and Tenure Committee shall first determine whether or not the grieving Senate member has made out a prima facie case. This determination shall be limited to a review of the written grievance only. A prima facie case shall be deemed established if the Committee concludes that the allegations as stated in the written grievance, if true, would constitute a violation of the faculty member's rights and privileges.
    3. If it finds that there is a prima facie case, the Committee may conduct a preliminary review of the evidence to determine whether there is sufficient reason to believe that a right or privilege of the grievant may have been violated. In the course of its preliminary review, the Committee shall provide the grievant with an opportunity to discuss his or her allegations with the Committee, either orally or in writing. Upon an appropriate showing of need by any party or on its own initiative, the Committee may request files and documents under the control of the administration, including the grievant's personnel files and confidential documents contained therein. Such confidential documents shall remain confidential within the committee unless disclosure is required by law. At this stage, the Committee may also give the administrator with authority to offer a remedy notice of the grievance and an opportunity to respond. To further facilitate its review, the Committee may also ask other persons involved in the events that gave rise to the grievance, including the department chair, to appear before or provide information to the Committee.
    4. If the committee determines either that the grievant has not made out a prima facie case or that after a preliminary review, there is not sufficient reason to believe that the grievant's rights and privileges may have been violated, it shall advise the grievant to that effect in a written communication stating the reasons for its conclusion.
    5. If the Committee determines that the grievant has made out a prima facie case of violation of a right or privilege, and that there is sufficient reason to believe that the grievant's rights and privileges may have been violated, the Committee shall advise the Chancellor's designee of the grievance and the prima facie determination. The Committee shall make an attempt to promote a resolution of the controversy between the grievant and the administrative officer, officers, or other persons concerned. If no resolution can be reached, the Committee shall conduct a formal hearing in accordance with the provisions set forth below.
    6. No grievance may be considered by the Committee if more than three years have passed between the time the grievant knew or should have known about the violation of his/her rights and privileges and the resulting injury there from, and the filing of a grievance with the Committee.
  3. Early Resolution

    1. Any party may attempt to resolve the grievance informally through negotiations. Such negotiations may proceed with the assistance of impartial third parties, including one or more members of the Committee. A negotiated resolution is permissible and appropriate at any stage of these grievance procedures. If a negotiated resolution is reached after a written grievance is filed, then the Privilege and Tenure Committee should be given notice that the matter has been resolved.
    2. The grievance may also be resolved through mediation in cases where such mediation is acceptable to the administration and the grievant. With the consent of the administration and the grievant, the Committee may assist in the selection of an appropriate mediator. Other relevant parties, including members of the Committee, may participate in the mediation.
  4. Hearing and Post-hearing Procedures

    1. The Privilege and Tenure Committee shall appoint a Hearing Committee for each grievance case that is not resolved through a negotiated resolution or mediation. The Hearing Committee should consist of at least three Division members. At least two of the members shall be members of the Committee on Privilege and Tenure, one of whom shall chair the Hearing Committee. The committee may not appoint a member of the department or equivalent administrative unit of any of the parties to the Hearing Committee. Hearing Committee members shall disclose to the Hearing Committee any circumstances that may interfere with their objective consideration of the case and recuse themselves as appropriate. A quorum for the conduct of the hearing shall consist of at least half but not less than three members of the Hearing Committee, including at least one member of the Committee on Privilege and Tenure.
    2. Prior to the formal hearing, the chair of the Hearing Committee shall schedule a conference with the parties and/or their representatives. This conference should attempt to:
      1. Determine the facts about which there is no dispute. At the hearing, these facts may be established by stipulation;
      2. Define the issues to be decided by the hearing committee;
      3. Set a time for both sides to exchange a list of witnesses and copies of exhibits to be presented at the hearing. The Hearing Committee has the discretion to limit each party to those witnesses whose names were disclosed to the other party prior to the hearing and to otherwise limit evidence to that which is relevant to the issues before the hearing committee;
      4. Specify whether pre-hearing and post-hearing briefs will be submitted by the parties as well as the deadlines for those briefs;
      5. Attain agreement about whether any person other than the Chancellor, the Chancellor's designee, the grievant, and their representatives may be present during all or part of the hearing. In order to preserve the confidentiality of the hearing, persons whose presence is not essential to a determination of the facts shall, as a general rule, be excluded from the hearing.
    3. The Chancellor's designee, the grievant, and/or their representatives shall be entitled to be present at all sessions of the Hearing Committee when evidence is being received. Each party shall have the right to be represented by counsel, to present its case by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross examination as may be required for a full and true disclosure of the facts.
    4. The hearing need not be conducted according to the technical legal rules relating to evidence and witnesses. The Hearing Committee may, upon an appropriate showing of need by any party or on its own initiative, request files and documents under the control of the administration. All confidential information introduced into evidence, including the identity of confidential sources of personnel evaluations, shall remain so within the Hearing Committee. The Hearing Committee may call witnesses or make evidentiary requests on its own volition. The Hearing Committee also has the discretion to require that all witnesses affirm the veracity of their testimony.
    5. No evidence other than that presented at the hearing shall be considered by the Hearing Committee or have weight in the proceedings, except that the Hearing Committee may take notice of any judicially noticeable facts that are commonly known. Parties present at the hearing shall be informed of matters thus noticed, and each party shall be given a reasonable opportunity to object to the Hearing Committee's notice of such matters.
    6. The Divisional Committee on Privilege and Tenure may, at its discretion, request the appointment of a qualified person or persons, designated by the Chair of the University Committee on Privilege and Tenure, to provide legal advice and/or to assist in the organization and conduct of the hearing.
    7. At the hearing, the grievant shall bear the burden of proving the validity of the grievance by a preponderance of the evidence.
    8. At the conclusion of the hearing, the Hearing Committee shall promptly make its findings of fact, conclusions supported by a statement of reasons based on the evidence, and recommendation, and forward these to the parties in the case, the Chancellor, the Chair of the Divisional Committee on Privilege and Tenure, and the Chair of the University Committee on Privilege and Tenure. The findings, conclusions, recommendations, and record of the proceedings shall be confidential to the extent allowed by law and UC policy. The Hearing Committee may, however, with the consent of the grievant, authorize release of the findings, conclusions, and recommendations to other individuals or entities, to the extent allowed by law.
    9. The hearing shall be recorded. The Hearing Committee has the discretion to use a certified court reporter (whose cost is borne by the administration) for this purpose, and the parties and their representatives shall have the right to a copy of the recording or transcript. The cost of the copy shall be assumed by the requesting party.
    10. The Hearing Committee may reconsider a case if either party presents, within a reasonable time after the decision, newly discovered facts or circumstances that might significantly affect the previous decision and that were not reasonably discoverable at the time of the hearing.
  5. Grievance Cases Related to Disciplinary Cases

    1. There are circumstances in which the same set of facts and allegations lead to both a disciplinary matter and a grievance before the Committee. Under these circumstances, when a single hearing is held, the Committee shall make separate reports of findings, conclusions, and recommendations for the grievance and for the disciplinary matter.
      1. When a grievance involves the same set of facts that are the subject of a disciplinary matter, the Committee on Privilege and Tenure may, at its discretion, hold either matter in abeyance while it proceeds with the other. Alternatively, the Committee may, with the consent of the grievant, the accused in the disciplinary matter, and the Chancellor's designee, consider both matters within a single hearing.
      2. When a Senate member facing disciplinary charges files a grievance involving the same set of facts and circumstances as the disciplinary matter, the Committee on Privilege and Tenure has the discretion to consider both matters within a single hearing.
    2. When a Senate member files a grievance that is based upon the same facts and incidents involved in a prior disciplinary hearing at which the same Senate member was accused of violating the Code of Conduct, the findings and conclusions of the prior disciplinary hearing shall be conclusive.