History: First Issued: September 6, 2011. Last Revised: November 22, 2019.
UNC Code Section 603 – Due Process Before Discharge or the Imposition of Serious Sanctions
UNC Code Section 126.96.36.199[R] Regulation on Review of Intention to Discharge or Impose Serious Sanction Under Section 603 of The Code
NCSU POL05.20.01 – Appointment, Reappointment, Promotion and Permanent Tenure
NCSU POL05.25.01 – Faculty Grievance and Non-Reappointment Review Policy
Contact Info: Vice Chancellor and General Counsel (919-515-3071)
Vice Provost for Faculty Affairs (919-513-7741)
Section 603 of the Code of the University of North Carolina (UNC) Board of Governors (The Code) provides a tenured faculty member (as well as a faculty member serving in a fixed term appointment prior to the expiration of the appointment) with certain procedural safeguards before the imposition of discharge or serious sanction (defined as demotion in rank or suspension without pay), specifies the reasons for imposition of discharge or serious sanction, and establishes the processes for notice, hearing, and appeal. This regulation establishes the procedures to be followed after a faculty member has requested a hearing pursuant to Section 603 of the Code.
The process of discharge or the imposition of serious sanction must be fundamentally fair to the faculty member. Section 603 includes certain procedures to assure fairness, but there is no expectation that the process be attended by the formality or technicality which characterizes civil or criminal legal proceedings in a court of law. Rather, the process should be conducted by administrators and faculty in a manner designed to determine whether discharge or the imposition of serious sanction is warranted under relevant provisions of The Code.
2. THE 603 HEARING COMMITTEE
The 603 Hearing Committee is a standing university committee that is authorized to hear cases involving the discharge for cause or imposition of serious sanctions of tenured faculty and faculty serving under term appointments prior to the expiration of their term appointment.
Each college shall elect a number of faculty members to serve on the 603 Hearing Committee; the number from each college is equal to one-half of the number of Faculty Senators from that college, rounded down when necessary, plus one.
Individuals eligible to vote in Faculty Senate elections are eligible to vote for members of the 603 Hearing Committee. Eligibility for membership on the 603 Hearing Committee is the same as for serving on the Faculty Senate with the exclusion of: retired faculty (or faculty who would be retiring prior to the conclusion of a 603 hearing), faculty who are on phased retirement, faculty without permanent tenure, and faculty who are currently on a work plan for failure to meet expectations in a post-tenure or annual review.
Faculty members will be elected to serve a four-year term on the 603 Hearing Committee. Members of the 603 Hearing Committee are ineligible for immediate re-election, but may become re-eligible for election after the passage of two (2) years.
Elections will be held annually and the terms of the members shall be staggered. The timing of and procedures for elections shall coincide with the elections of the Faculty Senate.
All members of the 603 Hearing Committee shall be trained annually to serve as both members and chairs of Hearing Panels. A member of the 603 Hearing Committee must have attended training as a pre-requisite to serve on a Hearing Panel.
3. FACULTY HEARING PANEL SELECTION
If a faculty member requests a hearing pursuant to Section 603 of the Code, the Executive Vice Chancellor and Provost shall forward a copy of the specifications for discharge or other serious sanctions (i.e. suspension or demotion in rank) to the Chair of the Faculty with a request that a 603 Faculty Hearing Panel (“Hearing Panel”) be selected to hear the case.
The purpose of a hearing by a Hearing Panel is to make a recommendation as to whether there is clear and convincing evidence presented to warrant discharge or serious sanction. The primary role of the Hearing Panel is to provide the opportunity for a formal hearing on the intent to discharge or impose serious sanction. The Hearing Panel creates a clear, permanent record of the evidence presented at the hearing and advises the Chancellor as to whether the institution has demonstrated, by clear and convincing evidence, that the intent to discharge or impose serious sanction is based on one or more of the permissible reasons (incompetence, neglect of duty, or misconduct). The institution has the burden of proof. The Hearing Panel does not have the authority to render a decision on the matter; the Chancellor has the authority to render the final decision.
3.1 Selection of Hearing Panel Members
Upon receipt from the Executive Vice Chancellor and Provost of the specifications for discharge or other serious sanction of a tenured faculty member or a faculty member serving under term appointments prior to the expiration of their term appointment, the Chair of the Faculty shall begin the process of selecting the Hearing Panel. The Chair of the Faculty, in the presence of three of the following individuals–Associate Chair of the Faculty Senate, past Chair of the Faculty or Chair Elect of the Faculty and Faculty Senate Executive Assistant–will randomly select five (5) members of the 603 Hearing Committee after excluding (a) those elected from the college of the faculty member (in cases where a faculty member has an appointment in more than one college, the exclusion will be for the college of the faculty member’s primary or “home” department); (b) those currently serving on a Hearing Panel; and (c) those who have served on a Hearing Panel within that academic year. The Chair of the Faculty will then contact the proposed Hearing Panel members to determine whether any should be excluded for good cause, including but not limited to, conflict of interest such that the proposed Panel member would be unable to decide the case in an objective manner, solely on the basis of the evidence presented and arguments made at the hearing. If a proposed member is disqualified, the Chair of the Faculty shall employ the procedure outlined above to select a new proposed member. The Hearing Panel selection process should typically take no more than two weeks from the date the Chair of the Faculty receives the written request from the Provost to form a Hearing Panel.
3.2 Notification to Parties of Proposed Panel Members
The Chair of the Faculty shall notify the Executive Vice Chancellor and Provost and the faculty member in writing of the proposed members of the Hearing Panel.
3.3 Response to Proposed Hearing Panel
Upon receipt of notification of the proposed Hearing Panel members, each party shall have five (5) business days to notify the Chair of the Faculty in writing whether the party requests the removal of any proposed member(s) from the Hearing Panel.
3.4 Challenges to Proposed Hearing Panel
Any request to remove a proposed Hearing Panel member shall be presented in writing to the Chair of the Faculty, who shall be responsible for granting peremptory challenges and for judging the validity of any challenges for cause.
3.4.1 Peremptory Challenge
Each party shall have one (1) peremptory challenge (challenge for any or no reason) to the proposed Hearing Panel.
3.4.2 Challenges for Cause
Each party shall have an unlimited number of challenges for cause. If a party requests removal of a proposed Hearing Panel member for cause, the party must specify the reasons for removal.
3.4.3 Chair of the Faculty Decision on Challenges
Within ten (10) business days of receipt of any party’s request to remove a proposed Panel member, the Chair of the Faculty shall grant any peremptory challenges and determine whether the proposed member should be removed for cause. The Chair’s decision regarding removal, along with the written request, will be made a part of the Official Record. The Chair of the Faculty shall replace a proposed Hearing Panel member who has been removed for any reason by utilizing the selection process outlined in section 3.1.
3.4.4 Exhaustion of 603 Hearing Committee Pool
Should the pool of eligible prospective members from the 603 Hearing Committee become exhausted, the parties may agree to proceed with fewer than five (5) members on the Hearing Panel, or, in the alternative, the Chair of the Faculty may select, at random, a member of the Faculty Senate’s 604/607 Grievance and Non-Reappointment Review Committee to serve on the Hearing Panel. Any proposed member of the Hearing Panel selected from that Committee must fulfill the requirements as delineated in sections 2.2 and 2.5.
4. INITIAL MEETING
After the Hearing Panel has been finalized, the Chair of the Faculty shall provide the Hearing Panel members with a copy of the specifications for discharge and shall contact the Office of General Counsel to request that counsel be assigned to assist the Hearing Panel. The Chair of the Faculty shall schedule an initial meeting of the Hearing Panel and its legal counsel. At that point, the Chair of the Faculty’s responsibilities with respect to the 603 Hearing process will conclude. The purpose of the initial meeting of the Hearing Panel shall be to select a Hearing Panel chairperson, set a date for the pre-hearing meeting, consult with legal counsel as needed and address any other items required to prepare for the hearing process.
4.1 Selection of Hearing Panel Chair
The Hearing Panel members shall select a Hearing Panel chairperson (Chair). The Chair shall oversee the Hearing proceedings and, at a minimum, shall be responsible for convening and chairing all Hearing Panel meetings; handling all logistics related to the hearing process; scheduling the hearing dates and notifying the Hearing Panel members, the Hearing Panel’s legal counsel, and the parties (and their counsel, if applicable) of the hearing dates and locations; drafting all correspondence on behalf of the Hearing Panel; ensuring the timely and orderly process of the hearing (with the expectation of completing the hearing no later than eight (8) weeks after the Hearing Panel’s initial meeting); making all procedural rulings; keeping a record of all meetings held and correspondence with Hearing Panel members; preparing a written report of the Hearing Panel’s findings and recommendations to the Chancellor; compiling the official record and transmitting it as specified by procedure; and convening and chairing any meetings or supplemental proceedings required by any remand to the Hearing Panel.
4.2 Hearing Schedule
The Chair of the Hearing Panel shall consult with the Hearing Panel members at the initial meeting to set a date, time, and location for the pre-hearing meeting. At that time, the Chair may also want to identify several potential dates and times for the hearing that may be presented to the respective parties and their counsel (if applicable) at the pre-hearing meeting.
4.3 Representatives of the Parties
The faculty member is entitled to have counsel who is able to represent the faculty member’s interests before the Hearing Panel. The Panel Chair shall contact the faculty member to ascertain whether he or she is represented by legal counsel and, if so, will obtain the contact information for the legal counsel. If an attorney will be representing the faculty member during the hearing, the institution is entitled to legal counsel, which may be provided by in-house counsel, counsel from another constituent institution, a member of the Attorney General’s Office, or outside counsel. The Chair shall provide such information to the legal counsel assigned to assist the Hearing Panel. In the event that the faculty member is not represented by legal counsel, but obtains legal counsel at a later date, the faculty member shall report the information in a timely manner to the Chair, who shall in turn notify the legal counsel assigned to the Hearing Panel.
4.4 Notification of Pre-hearing Meeting
The Chair shall notify the parties of the date, time and location of the pre-hearing meeting and will instruct the parties as to what to bring to the pre-hearing meeting (i.e. calendar for scheduling purposes, proposed witness list for the hearing–including a brief description as to what each witness will be expected to testify to and estimated time for each witness’s testimony–proposed stipulations, etc. and any other information that will assist in facilitating preparation for the hearing).
5. PRE-HEARING MEETING
The Chair of the Hearing Panel presides over the pre-hearing meeting, which is a meeting that includes the Panel Chair, the parties and their legal counsel (if applicable). The pre-hearing meeting is intended generally to handle preliminary matters and to establish expectations for the hearing. No evidence or arguments about the merits of the matter are presented at the pre-hearing meeting.
5.1 Schedule for Hearing
The Panel Chair, after consulting with the Hearing Panel members and the parties, should set at least three to five firm hearing dates (or more, if the matter is anticipated to go longer) sufficiently in advance of the commencement of the actual hearing in order to facilitate the ability of the parties to schedule the appearance of witnesses. If the hearing is completed sooner than planned, the Panel Chair may release the additional scheduled hearing dates.
5.2 Contact Information
The Panel Chair should confirm contact information (telephone numbers, FAX numbers, e-mail addresses and mailing addresses) of the parties and respective legal counsel, if applicable. Any information or communication sent to the Executive Vice Chancellor and Provost or the faculty member and their respective legal counsel must be sent to the other party.
5.3 General Matters
The Panel Chair may make procedural rulings with respect to the hearing such as the number of witnesses that may be called by a party, the length of opening statements/closing arguments, sequestration of witnesses, etc.
5.4 Proposed Stipulations
At the pre-hearing meeting, the Panel Chair should inquire as to whether the parties have any proposed stipulations relating to relevant matters of fact or admissibility of evidence. Any final stipulations shall be reduced to writing and signed by both parties and the Panel Chair prior to the start of the hearing and accepted into the record at the hearing.
5.5 Exchange of Proposed Exhibits and Final Witness List
The Panel Chair shall instruct the parties to exchange proposed exhibits and a final witness list a certain amount of time prior to the hearing (the exchange should be at least three (3) business days before the hearing). On the specified date, one hard copy of a party’s proposed exhibits must be exchanged with the other party, with a copy provided to the Panel Chair. The parties and the Panel Chair may agree to another format (i.e. e-mail with pdf attachments, thumb drive, disk, etc.) for the exchange. Proposed exhibits should be marked sequentially by each party on the front page (i.e. Provost Exh. 1, Respondent Exh. 1) and the pages of each exhibit should be numbered for easy reference. The Panel Chair may not share the exhibits with the other members of the Panel at this stage.
5.6 Pre-hearing Meeting Recorded
The pre-hearing meeting shall be transcribed by a court reporter and the transcript shall become part of the official record of the proceedings. The faculty member may request a copy of the transcript of the pre-hearing meeting and a copy thereof shall be furnished to the faculty member at NC State’s expense.
6.1 Burden of Proof
The Executive Vice Chancellor and Provost, as the chief academic officer and charging party, has the burden of proving by clear and convincing evidence that the reasons for discharge or imposition of serious sanction have a reasonable basis in fact and are consistent with state and federal law, the Code and NC State policies/regulations/rules.
6.2 Hearing Closed to the Public
The hearing shall be closed to the public unless the faculty member and the hearing committee agree that it may be open. If closed to the public, the proceedings shall remain confidential unless and until the matter must be disclosed as a matter of law.
6.3 Responsibilities of Panel Chair
The Panel Chair shall oversee the hearing and rule on any procedural issues that arise during the hearing, so long as such rulings do not conflict with Section 603 of the Code, NC State policies/regulations/rules and/or law. All procedural issues shall be directed to the Panel Chair.
6.4 Ex Parte Communications Prohibited
There may be no communications between Hearing Panel members and other persons involved in the hearing (i.e. parties, legal counsel, witnesses, etc.) regarding the subject matter of the hearing except (1) in the hearing or in written documents copied to all parties or (2) after the Chancellor has rendered the final decision in the case.
6.5 Hearing Recorded
The hearing shall be transcribed by a court reporter and the transcript shall become part of the official record of the proceedings. The faculty member may request a copy of the transcript of the hearing and a copy thereof shall be furnished to the faculty member at NC State’s expense.
The rules of evidence shall not strictly apply. Accordingly, hearsay evidence may be admitted at the Panel Chair’s discretion, if deemed to be reliable, although testimony from a witness with direct knowledge is preferred.
6.6.2 Alternatives to Live Testimony
Though live testimony is preferred, the Panel Chair may allow a witness to testify telephonically or via video conference (i.e. Skype, WebEx, etc.) in extraordinary circumstances (i.e. out of the country, on scholarly leave, no longer a resident of North Carolina, at home on maternity/paternity leave, etc.). The Panel Chair may also accept testimony from affidavits into the record and the Panel may accord them appropriate weight.
All documents introduced into evidence shall be labeled with exhibit numbers and identified as either the Executive Vice Chancellor and Provost’s exhibit or the Faculty Member’s exhibit. Exhibit pages should also be numbered.
6.6.4 Evidence Not Considered
No statements or documents may be considered by the Hearing Panel in making a recommendation to the Chancellor unless accepted into the record as evidence. If the Panel Chair determines that certain evidence should be excluded, the decision to exclude and the underlying rationale should be noted in the record. The excluded information should be kept as part of the official record but segregated from the information that was accepted into evidence.
6.7 Order of Hearing Proceedings
6.7.1 Reading of Charges
The Panel Chair shall begin the hearing by reading the specification of charges into the record.
6.7.2 Opening Statements
The Panel Chair, in his/her discretion, may allow opening statements by the parties limited to a preview of what each party expects to present to the Panel through testimony and documentary evidence. The Panel Chair may set a time limit for each party to present an opening statement. The parties shall have the option to waive opening statements.
6.7.3 Provost’s Evidence
The Executive Vice Chancellor and Provost, or his/her representative (i.e., legal counsel), shall present evidence to support the charges. The faculty member, or faculty member’s legal counsel, shall have the right to cross-examine all witnesses at the conclusion of their testimony. Following cross-examination, the Hearing Panel shall have the opportunity to ask the witnesses any questions.
6.7.4 Faculty Member’s Evidence
The faculty member, or faculty member’s legal counsel, shall present evidence to refute the charges. The Executive Vice Chancellor and Provost, or his/her representative (i.e., legal counsel), shall have the right to cross-examine all witnesses at the conclusion of their testimony. Following cross-examination, the Hearing Panel shall have the opportunity to ask the witnesses any questions.
6.7.5 Rebuttal Evidence
At the conclusion of the faculty member’s presentation of evidence, the Executive Vice Chancellor and Provost, or his/her representative (i.e, legal counsel), may present rebuttal evidence limited to matters brought forth by the faculty member. The Panel Chair, in his/her discretion, may allow the faculty member, or faculty member’s legal counsel, to present surrebuttal evidence limited to matters brought forth by the Executive Vice Chancellor and Provost or his/her representative on rebuttal.
6.7.6 Closing Arguments
The parties shall be allowed to present closing arguments to the Hearing Panel. The Executive Vice Chancellor and Provost, as the party with the burden of proof, has the option to present closing argument first or last. The closing argument provides the parties with the opportunity to present their respective positions based upon the evidence presented. The closing argument may not be used to introduce new evidence. The Panel Chair may set a time limit for each party to present a closing argument.
7. PANEL DELIBERATIONS/CLOSED SESSION
The Hearing Panel’s deliberations take place in closed session after the evidentiary hearing has been completed. The Hearing Panel should review the charges, evaluate the competent evidence presented, and make a written recommendation as to whether the charges have been substantiated. A finding that one or more of the charges has been substantiated shall establish cause for discharge (or imposition of other serious sanction as indicated in the specification of charges).
8. HEARING PANEL REPORT
8.1 Written Report
The Hearing Panel’s recommendation shall be put into a written report addressed and delivered to the Chancellor within fourteen (14) calendar days after the hearing concludes or after the official transcript of the hearing is delivered to the Panel Chair, whichever is preferable to the Panel. If additional time is needed, the Panel Chair may request that the Chancellor grant an extension of time to complete its report. The report shall be signed by the Hearing Panel members subscribing to the report and shall note any dissenting votes. Any Hearing Panel member may file a minority report that shall be attached to the Panel’s report. Any Hearing Panel members subscribing to the minority report shall sign the report.
9. OFFICIAL RECORD
The official record of the case shall include the following items: the transcript from the pre-hearing meeting; the transcript from the hearing; any stipulations by the parties; a copy of all documents accepted into evidence; a copy of all (segregated) documents or summaries of witness testimony submitted as an offer of proof that were excluded from evidence and not considered by the Hearing Panel; all correspondence to/from the Panel Chair and/or the Hearing Panel to/from the parties or to the Hearing Panel. The official record should contain a table of contents and should be arranged in a logical and organized fashion. The official record shall be forwarded to the Chancellor when the Hearing Panel’s final report is submitted. The record shall be considered part of the faculty member’s personnel file and is confidential. Access to such materials is only allowable as provided by law.
10. FURTHER PROCEEDINGS AND/OR CONSULTATION
10.1 If the Chancellor accepts the Hearing Panel’s recommendation without the need for any further clarifying information or additional evidence, the Chancellor shall formally release the Hearing Panel from any further responsibility pertaining to the proceeding.
10.2 If the Chancellor determines that additional proceedings are necessary, the matter will be remanded with instructions to the Hearing Panel for further action. For example, the Hearing Panel may be asked to hear additional evidence and to re-evaluate the recommendation or to clarify portions of the Panel’s findings and/or recommendation. Once the Hearing Panel has completed any additional action upon remand, the Chancellor shall formally release the Hearing Panel from any further responsibility pertaining to the proceeding.
10.3 If the Chancellor is considering taking an action that is inconsistent with the recommendation of the Hearing Panel, the Chancellor should consult with the Hearing Panel, either in person or in writing, before making a final decision.
11. CHANCELLOR’S DECISION
11.1 The Chancellor’s Decision is considered to be final. Notice of the Chancellor’s decision shall be in writing and shall be provided to the Executive Vice Chancellor and Provost and to the faculty member; notice of the final decision to the faculty member shall be transmitted by a method which produces adequate evidence of delivery. A copy of the final decision shall also be provided to the Panel Chair.
11.2 If the final decision is adverse to the faculty member, the faculty member may appeal the Chancellor’s decision to the Board of Trustees. The notice of the Chancellor’s Decision shall inform the faculty member: (1) of the permissible grounds for appeal pursuant to Section 603 of The Code; (2) that the faculty member may file a notice of appeal through the Chancellor within fourteen (14) calendar days of receipt of the notice of the Chancellor’s Decision; (3) that the written notice of appeal need only include a brief statement of the basis for appeal; and (4) a detailed schedule of submission of relevant documents on appeal shall be provided following timely receipt of a notice of appeal.
12. APPEAL TO BOARD OF TRUSTEES
12.1 An appeal, if any, of the Chancellor’s decision shall be filed within fourteen (14) calendar days after the faculty member receives notice of the Chancellor’s decision. The appeal shall be addressed to the Board of Trustees (Board) but shall be submitted to the Chancellor’s Office.
12.2 The appeal to the Board of Trustees shall be decided by the full Board. However, the Board may delegate the duty of reviewing the appeal to a standing or ad hoc committee of at least three (3) members. The Board, or its committee, shall consider the appeal based upon the written record.
12.3 The first step in any appeal to the Board will be an evaluation by the Board of the written grounds for appeal to determine whether the issues raised fall within one of the three grounds for appeal, which are as follows:
12.3.1 Material procedural error. The faculty member may allege that the hearing before the Hearing Panel or the process followed by the Chancellor included a material procedural error, that, but for the error, could have resulted in a decision that was favorable to the faculty member. The faculty member must demonstrate that, because of the material procedural error, he or she did not receive a fair hearing by the Hearing Panel or a fair review by the Chancellor such that, but for the error, a different decision may have been reached.
12.3.2 Clearly erroneous. The faculty member may allege that the decision to discharge or impose a serious sanction was not based on a permissible reason. A clearly erroneous decision is one that a reasonable person could not have reached based on the competent evidence in the record in light of the controlling laws or policies. The Board reviews the entire record to determine whether a reasonable person could have arrived at the decision being questioned. The ultimate question is whether the decision reached was a reasonable one in light of the competent evidence in the record, not whether the Board would have reached a different decision.
12.3.3 Contrary to law or policy. A faculty member may allege that controlling law or university policy was disregarded, misinterpreted, or misapplied to the facts of the case.
12.4 If the Board determines that the faculty member has set forth appropriate grounds for an appeal, the Board will notify the parties of a schedule for perfecting and processing the appeal. If the faculty member fails to comply with the schedule, the Board may extend the time for compliance with the schedule or may dismiss the appeal.
12.3 The Board will issue its decision on appeal as expeditiously as practical, typically at the next regularly scheduled Board of Trustees meeting following receipt of the faculty member’s request for an appeal to the Board. The Board may affirm the Chancellor’s decision, or, if the Board finds that the campus-based process or decision had material procedural error, was clearly erroneous, or was contrary to controlling law or policy, the Board may remand the matter to the Chancellor to provide for a supplemental review or to remand the matter for a new hearing.
12.4 The Board’s decision shall be final.