3.3.8 Faculty Academic Freedom Ethics and Grievance

Authority

The general authority to create this Academic Freedom, Ethics, and Grievance Committee ("AFEGC ") is established by the Illinois State University Constitution.

The AFEGC is an external committee of the Illinois State University Academic Senate and is responsible to the Senate for the faithful execution of these policies.

For the purposes of this document, faculty is defined as including tenure, probationary tenure, unionized and non-unionized non-tenure-track faculty (NTT) and faculty associates. The inclusion of nontenure-track faculty in this document does not create or add any new rights beyond those which may already exist in the nontenure-track negotiated agreement; in specific the NTT negotiated agreement for union members specifies that its members can only bring academic freedom grievances through the AFEGC process.

Malicious Charges

Bringing unfounded charges motivated by malice, or failure to treat colleagues and students fairly, with respect, civility and decency, without exploitation and without discrimination based on irrelevancies, constitutes a violation of the Code of Ethics. Where appropriate, the Hearing Committee Reports will state explicitly whether there was a reasonable basis in fact and honest belief for making charges.

If either Report should determine that the making of the original charges or the testimony of any person was maliciously motivated, that finding shall be communicated to the Provost. The Provost may enter a finding of malicious conduct in the person’s personnel file and communicate the finding to the person’s Dean and Chair/Unit Director. Such a finding may be the basis for disciplinary action or other personnel decisions in accordance with University rules and regulations.

Jurisdiction, Definitions, and General Principles

The AFEGC shall have Faculty jurisdiction over the following:

• A complaint by a faculty member that the action of some person or persons, acting in an official   capacity as an ISU employee or member of the Board of Trustees, has violated the faculty member's academic freedom in teaching, research, publication, and shared governance.  A complaint alleging violation of academic freedom must be consistent with the Illinois State University Constitution, Article III.
• A complaint by a faculty member, an administrator, or an administrative body alleging that a faculty member or an administrator has violated the Faculty Code of Ethics.
• A referral from the Faculty Review Committee ("FRC"), pursuant to Article XIII.D.3 of the Faculty Appointment Salary Promotion and Tenure Policies ("ASPT"), in promotion and tenure cases where "the FRC believes that the basis of the appeal is an academic freedom or ethics violation."
• A referral from the College Faculty Status Committee ("CFSC"), pursuant to Article XIII.F.1 of the ASPT, in performance evaluation cases where "the CFSC believes that the basis of the appeal is an academic freedom or ethics violation."
• A complaint by a probationary faculty member, who has received a notice of dismissal for cause prior to the expiration of the faculty member's contract term, alleging that the basis of the dismissal is an academic freedom or ethics violation.
• A complaint by a probationary faculty member, who has received a notice of non-reappointment, alleging that the basis of the non-reappointment is an academic freedom or ethics violation. See ASPT, XIII.G.2.
• A complaint by a faculty associate against a faculty member or a non-laboratory-school administrator, or a complaint by a faculty member or non-laboratory-school administrator against a faculty associate which is an allegation of an ethics or academic freedoms violation.

Except for those cases provided for in A.3. to A.6., the ASPT guidelines provide that the AFEGC has no jurisdiction) in the following cases:

• Faculty complaints in promotion, tenure, or performance evaluation matters, including cases where a faculty member "believes that there has been a misinterpretation, misjudgment, or procedural error relating to a promotion, tenure, or performance evaluation recommendation concerning the faculty member." ASPT, XIII.B.
• Cases involving the "dismissal of a tenured faculty member." ASPT, III.E.
• All cases heard under the Integrity in Research and Scholarly Activity Policy.

All cases based on the University Policy "Grievance Procedures – Equal Opportunity/Affirmation Action" policy.

Creation and Composition of the Committee

Members

The AFEGC will consist of thirty-one (31) members defined below.

Each year, the faculty members of every department shall nominate by election within the Department one faculty member with tenure. The following positions shall not be eligible to serve on the AFEGC:

• College deans
• Department chairpersons
• Academic Senate members
• Faculty Review Committee members
• University Review Committee and College Faculty Status Committee members
• Administrative Personnel

Department/School Faculty Status Committee members may serve on cases not involving their own departments. A faculty member with tenure may petition to be included as an addition to the departmental/school nominees by presenting a petition signed by ten faculty members with tenure to the Chairperson of the Academic Senate.

Procedure

The Academic Senate Faculty Caucus shall elect the AFEGC during the Spring Semester following the seating of newly elected Senators.

In each year of an election, the six (6) faculty with the highest number of votes shall be declared elected for a three-year term. Any vacancy occurring between elections shall be filled by the first eligible person of those who, at the last election, received the next highest number of votes. The position on the AFEGC of anyone who will be or has been absent from regular duties for one semester or longer shall be declared vacant. A member named to fill any vacancy shall serve the remainder of the unexpired term.

Each college will elect a non-tenure-track faculty member covered by the NTT negotiated agreement to a pool.  The pool shall be elected annually each fall.  One Faculty Hearing Committee member will be chosen from the pool for cases where a complainant or respondent is a non-tenure-track faculty member. 

These NTT pool members will only serve in cases regarding NTT complainants.  It is understood that two colleges (Mennonite Colege of Nursing and Milner Library) have no NTTs covered by the negotiated agreement.

Non-tenure-track faculty membesr not covered by the NTT negotiated agreement in Mennonite Colege of Nursing and Milner Library shall each elect two (2) non-tenure-track faculty members not covered by the NTT negotiated agreement to a pool from which one preliminary Faculty Hearing member will be chosen for cases where a complainant or respondent is a non-tenure-track faculty member not covered by the NTT negotiated agreement.  These NTT pool members will only serve in cases regarding NTT complainants.  The pool shall be elected annually each fall.

The faculty associates at Metcal School and University High School will each elect two (2) faculty associates to a pool from which one preliminary Faculty Hearing Committee member will be chosen for cases where a complainant or respondent is a faculty associate.  These NTT pool members will only serve in cases regarding faculty associate complainants.  The pool shall be elected annually each fall.

If a member of the AFEGC is engaged in a hearing or other process related to a complaint or referral, the member will continue to serve regarding that matter until the matter is terminated, even though such service may thereby extend beyond the expiration of the member's term of office.

Committee Chairperson

Since AFEGC terms will coincide with the beginning of the academic year, at the call of the preceding Chairperson, the Chair and Vice-Chairperson will be elected within the first month of classes. In the event the preceding AFEGC chair is no longer serving on the committee, a meeting of the AFEGC will be called by the Chair of the Academic Senate for the sole purpose of electing a chair for AFEGC.

The Chairperson's duties shall include the following:

• To inform the university faculty concerning the jurisdiction of the AFEGC its policies and procedures in AFEGC matters
• To call and preside over meetings of the AFEGC
• To reasonably ensure that proper procedure is followed in the handling of AFEGC matters, including the timely processing of complaints and referrals
• To initiate, when deemed appropriate, the informal conciliation of complaints and referrals filed with the AFEGC as provided in Section VII below
• To provide training to members. In order to increase consistency in decision-making when the committee turns over, at the beginning of each year the chairperson of the AFEGC shall provide a summary of all cases of the last two years (those resolved informally and those resolved in a formal Hearing). No individual, department, or college names shall appear in the summaries. These summaries shall be drawn up at the end of each year by that year's chairperson. The cases shall be presented as scenarios for discussion by the new members.
• To inform all university faculty members about the grievance process by providing them annually by e-mail the websites for the AFEGC Policies and Procedures and the Code of Ethics
• To extend deadlines as needed to provide for equitable due process, in consultation with and on agreement of all parties concerned.  A committee may petition the chairperson of the AFEGC for an appropriate extension of deadlines.
• To oversee the election of one of the committee’s members other than the Chair to serve as a voluntary conciliation facilitator, with duties as outlined in Section VII below

Complaints and Referrals

Complaints

A complaint shall be defined as a written statement alleging a matter within the jurisdiction of the AFEGC, as defined above by II.A.1, 2, 5, or 6.

A complaint shall at a minimum include:

1. The jurisdictional basis of the complaint, by specification of the subsection II.A which provides for the jurisdiction of the AFEGC
2. A written statement detailing the basis of the complaint, including a narrative of the facts which the complainant believes could be proven if a formal hearing were to take place
3. A statement of the section(s) of the Ethics Code the complainant believes has been violated

Complaints may also include as attachments any documentation believed to be relevant to the complaint.

Referrals

A referral to the AFEGC shall be defined as a referral either from the FRC, as described above in II.A.3, or a referral from the a CFSC, as described above in II.A.4. A referral shall at a minimum include:

1. A written statement by the FRC or CFSC describing the basis for the referral;
2. Forwarding of any documentation from the FRC or CFSC pertinent to the referral;
3. Indication from the FRC or CFSC as to the timelines by which the AFEGC is to submit its report back to the FRC or CFSC.

Complaints and referrals will be filed with the Chairperson of the AFEGC, or in his/her absence, the Vice-Chairperson. Upon receipt of the complaint or referral, the Chairperson or Vice-Chairperson shall confirm in writing to the complainant or referee receipt of the complaint or referral and the date of filing. The Chairperson or Vice-Chairperson shall also transmit a copy of the complaint to the appropriate respondent(s).

In cases of complaints filed by a faculty member, the Chairperson shall consult the Provost's Office as to the appropriate respondent, who shall be designated by agreement of the AFEGC Chairperson and the Provost. In the absence of an agreement between the AFEGC Chairperson and the Provost, the faculty members of the Senate Executive Committee shall determine the appropriate respondent.

In cases of complaints alleging ethics violations, the appropriate respondent is the person accused of the ethics violation. In appropriate cases, such as where discrimination or sexual harassment is alleged, the Chairperson shall notify the Affirmative Action Officer.

Procedures in Referral Cases

Where a case is referred to the AFEGC by the FRC or a CFSC, the Chairperson of the AFEGC shall call a meeting of the AFEGC to determine, by majority vote, whether a hearing is appropriate. The AFEGC shall directly to an appeal hearing. As outlined in the ASPT, XIII.D.3 and XIII.F.1, the report of the AFEGC, instead of constituting a recommendation to the Provost, as would otherwise be the case, shall offer recommendations to the FRC or CFSC so that they may exercise their ASPT responsibilities.

In the case of an appeal of an AHC decision by either the complainant or respondent, copies of the decision by the AFEGC appeals committee will be forwarded to the original referring committee.

However, if the deadline for action by the original committee has passed, the chair of the AFEGC will forward the decision by the AFEGC appeals committee to the President or his designee.

Encouragement of Voluntary Informal Conciliation Efforts

The Academic Senate, and the AFEGC, hereby encourage as a matter of general policy (but do not require), any complainant, before filing a complaint, to seek informal conciliation and resolution of the perceived grievance.

Such informal conciliation can take many forms. The usual method would be for the prospective complainant to confer with a representative of the administration who would normally respond to the complaint (if filed by a faculty member); or in the case of an administrator considering an ethics complaint against a faculty member, to confer with that faculty member. This informal conciliation conference would typically seek to resolve the complaint by voluntary adjustment, in order to preclude the necessity of filing the complaint.

If such efforts fail, or if one or more of the parties in the dispute refuse, for whatever reason, informal conciliation, they should next consult with the University or, if appropriate, College Ombudsperson prior to filing a formal complaint with the AFEGC.

If, in exceptional circumstances, a complainant or respondent is concerned about or unwilling to work with either the University or an appropriate College ombudsperson in pursuing an informal and voluntary resolution to the issue of concern, they may contact the AFEGC member who has been elected by the committee to serve as a voluntary conciliation facilitator. The parties should work with this designated committee member in pursuing an informal resolution to the case.

The filing of a formal complaint with AFEGC should occur only after the appropriate Ombudsperson or the committee's voluntary conciliation facilitator has been consulted.

Faculty Hearing Committee (HC)

In cases of complaints where a conciliation effort is not deemed appropriate by the Ombudsperson or AFEGC voluntary conciliation facilitator, or where such an effort has been unable to resolve the matter, and in all cases of referrals, the Chairperson shall appoint, from the members of the AFEGC, a three (3) member HC for each case that necessitates a hearing. The appointment shall normally take place within five (5) working days of a referral or of a decision that a hearing is warranted.

In cases where the complainant or respondent is a non-tenure-track faculty member, the Chairperson shall appoint two (2) of its T/TTmembers of the AFEGC to the HC and one (1) non-tenure-track member from the non-tenure-track pool made up of members from each college.

1. The HC shall elect a chairperson from its own membership.
2. The Chairperson of the AFEGC shall supervise the election procedure after deciding that a HC needs to be formed.
3. No member of the AFEGC shall serve on a HC who: (1) is the Chairperson of the AFEGC; (2) is a member of the same department/school as the person for whom the hearing will be held; or (3) for good reason believes he/she cannot or should not serve (e.g., actual or apparent conflict of interest, such as those who have served on a DFSC/SFSC, CFSC, or FRC that has been involved with the complaint). Representatives of Mennonite College of Nursing, Milner Library, Metcalf School and University High School may not serve on a a HC of a proceeding in which the complainant or respondent is from the same unit.
4. In the event of vacancies making it impossible to staff a HC with appropriate representatives as established above, the Chairperson may appoint any member of the AFEGC who is not a member of the same unit as the complainant or respondent to the HC.
5. The Hearings shall be conducted according to the following procedures:
   1. Proceedings shall be conducted in good faith;
   2. Formal hearings shall be closed unless both parties consent to an open meeting or an open meeting is required by law;
   3. The chairperson of the Hearing committee or a designee shall, at the outset of the hearing,  state the issues in the proceedings to all involved parties;
   4. Subject to applicable law, the privacy of confidential records and proceedings in the hearing process shall be respected;
   5. Members serving on hearing panels should scrupulously avoid any conflict of interest and must notify the Chairperson of the AFEGC if any such conflict exists;
   6. Except as modified below, the principal parties should be accorded the right to see all documents  considered by the HC, to hear opposing statements, to present evidence, to call witnesses, and to be accompanied by a technical or informal advisor.

Hearing

Within ten (10) working days of the constitution of the committee, the chairperson of the HC shall set a preliminary hearing date, unless this timeline is extended by mutual agreement of the chairperson, complainant, and respondent. Within these ten (10) days, the Chairperson of the AFEGC and Chairperson of the HC will schedule a meeting of the HC membership to provide training to review procedures, standards and confidentiality with the HC membership.

The preliminary hearing shall be conducted according to the following procedures:

1. The complainant shall be given five (5) working days prior to the scheduled hearing to submit any documentation the complainant deems relevant to the HC. The complainant must also provide the respondent with:
   • A written position statement detailing the basis of the complaint, including a narrative of the facts which the complainant believes could be proven if a formal hearing were to take place;
   • Any documentation the complainant deems relevant.
2. The HC has an obligation to transmit all documentation to the respondent within one working day. If this timeline cannot be met for any reason, the timeline for the respondent’s response shall be lengthened by as many days as it took the HC to transmit the information to the respondent.
3. Within ten (10) working days of receipt of the submission by the complainant, the respondent shall submit to the HC and the complainant:
   • A written statement detailing the response to the complaint, including a narrative of the facts that the respondent believes could be proven in a formal hearing.
   • Any documentation the respondent deems relevant.
4. Assuming the timeline outlined in B and C of this section is met, a Hearing shall take place within twenty (20) working days of the formation of the HC.
5. At the scheduled preliminary hearing, the HC will:
   • Allow the complainant and the respondent, or their representatives, if they so elect, to make oral presentations supplementing their written submissions;
   • Ask the complainant and the respondent any questions the HC deems relevant regarding their written submissions and/or oral presentations.
   • The HC will inquire into the situation only to the extent necessary to enable the Committee to make a recommendation or to effect a resolution. Presentation and examination of witnesses will take place when the HC deems it to be appropriate in a particular case. The proceedings will be tape-recorded. The HC may limit the oral presentations to any time length that it deems appropriate, but each side will have the same amount of time, not to be less than 20 minutes.
6. Within ten (10) working days after the preliminary hearing is conducted, the HC will issue its written report and recommendation to the Chairperson of the AFEGC regarding the complaint, which will take one of the following forms:
   • The HC may conclude that there is no probable cause for conducting a formal hearing on the complaint, and recommend dismissal of the complaint;
   • The HC may conclude that there are disputes of material fact such that a formal hearing is warranted and necessary, or that a formal hearing is warranted for any reason the HC deems appropriate in order for the AFEGC to come to a recommendation regarding the complaint.

The written report shall include:

• A summary of findings of fact;
• A summary of the rationale for reaching a conclusion;
• A recommendation of action to the Provost.

In academic freedom violation cases, the conclusion of the report and recommendation shall follow the format:

“The AFEGC finds that the evidence presented in the complaint of _______has (substantiated) (not substantiated) the charge against _________. The AFEGC recommends to the Provost that the following action be taken:________________.”

In ethics violation cases, the conclusion of the report and recommendation shall follow the format:

“The AFEGC finds that the evidence presented in the complaint of ___________which dealt with section ( ) of the Code of Ethics has (substantiated) (not substantiated) the charge against  ____________________.  The AFEGC redommends to the Provst that the following action be  taken: _____________________________."

The Chairperson of the AFEGC shall communicate the HC’s recommendation to the complainant and the respondent and inform them of their right to appeal. Within five (5) working days after receiving the HC recommendation, the complainant or respondent may appeal the recommendation of the Hearing Committee. The written request will explain the basis for the request.

Appeal Hearings

If, after a hearing, the AFEGC receives a request for an appeal hearing, or on referral from a College Faculty Status Committee (CFSC) or the Faculty Review Committee (FRC), then the Chairperson shall constitute an Appeal Hearing Committee (AHC) with new members.  The AHC shall consist of five (5) members.

In the case that both claimant and respondent are tenured or probationary faculty members, the five members shall be drawn from the tenured faculty on the AFEGC. In the case that a claimant or respondent is an non-tenure track member, the AHC shall consist of three (3) tenured faculty AFEGC members and two (2) non-tenure-track members drawn from the non-tenure-track or faculty pool.  If the claimant or respondent is a non-tenure-track member and covered by the NTT negotiated agreement, the AHC shall consist of three (3) tenured faculty AFEGC members, one non-tenure-track faculty member and a non-tenure-track faculty member not covered by the NTT negotiated agreement who did not serve on the HC.  In the case that a claimant or repondent is a faculty associate, the AHC shall consist of three tenured faculty AFEGC members, one non-tenure-track faculty member, and a faculty associate who did not serve on the HC. 

The Chairperson of the AHC shall schedule the appeal hearing within ten (10) days after the AHC formation. This timeline may be extended by mutual agreement of the chairperson of the AHC, the complainant, and the respondent. The parties will be given written notice of the date, time, place, and purpose of the hearing.  In constituting the AHC, the following procedures shall apply:

The AHC shall elect a chairperson from its own membership.

The Chairperson of the AFEGC shall supervise the election procedure after deciding that an AHC needs to be formed.

No member of the AFEGC shall serve on an ANC who (1) is the Chairperson of the AFEGC; (2) is a member of the same department/school as the person for whom teh hearing will be held; or (3) for good reason believes he/she cannot or should not serve (e.g., actual or apparent conflict of interest, such as those who have served on a DFSC/SFSC, CPSC, or FRC that has been involved with the complaint)

Representatives of Mennonite College of Nursing, Milner Library, Metcalf School and University High School may not serve on an AHC of a proceeding in which the complainint or respondent is from the same unit.

In the even of vacancies making it impossible to staff an AHC with appropriate representatives as established above, teh Chairperson may appoint any member of the AFEGC who is not a member of the same unit as the complainint or respondent to the AHC.

Appeals Hearing shall be conducted according to the following procedures:

Proceedings shall be conducted in good faith;

Hearings shall be closed unless both parties consetn to an open meeting or an open meeting is required by law;

The chairperson of the AHC or a designee shall, at the outset of the hearing, state the issues in the proceedings to all involved parties;

Subject to applicable law, the privacy of confidential records and proceedings in the hearing process shall be respected;

Members serving on hearing panels should scrupulously avoid any conflict of interest and must notify the Chairperson of the AFEGC if any such conflict exists;

Except as modified below, the principal parties should be accorded the right to see all documents considered by the AHC, to hear opposing statements, to present evidence, to call witnesses, and to be accompanied by a technical or informal advisor.

The chairperson of the AHC shall be responsible for conducting the hearing and has the complete authority, in consultation with the other members of the AHC, to control all aspects of the proceedings, including process, the hearing of testimony, and the introduction of other evidence as deemed necessary and appropriate. The AHC will not be bound by any formal rules of federal or state court procedure and evidence, and may consider whatever evidence it deems relevant and give such evidence any weight it deems appropriate in the considered and collective judgment of the committee’s members.

The AHC will admit into the record of the proceedings the position statements and any documentation presented by the parties in the preliminary hearing, and may accept any additional documentation or evidence from the parties, so long as new allegations or charges are not raised.  The AHC will provide reasonable aid, within its ability, in securing attendance of witnesses through its status as an approved university committee. The AHC will afford each party an opportunity to examine all witnesses whose appearance it has approved.

The AHC may determine that the testimony of suggested witnesses is either not relevant or cumulative, and may call witnesses on its own motion.  The AHC will afford each party in the dispute an opportunity to be heard by the AHC and to be accompanied by an advisor or representative of their choice. The parties shall normally speak for themselves, but the AHC has the discretion to authorize either party's advisor or representative to examine witnesses or present oral or written arguments. 

In all cases, the complainant shall have the burden of proof throughout the hearing by a "preponderance of the evidence" standard. Oral arguments shall be limited to ten minutes, except at the discretion of the Chair.

The written report shall include:

• a summary of findings of fact;
• a summary of the rationale for reaching a conclusion;
• a recommendation of action to the Provost.

In academic freedom violation cases, the conclusion of the report and recommendation shall follow the format:

"The AFEGC finds that the evidence presented in the complaint of _______has (substantiated) (not substantiated) the charge against _________. The AFEGC
recommends to the Provost that the following action be taken:________________."

In ethics violation cases, the conclusion of the report and recommendation shall follow the format:

"The AFEGC finds that the evidence presented in the complaint of ___________which dealt with section ( ) of the Code of Ethics has (substantiated) (not substantiated) the charge against ______________. The AFEGC recommends to the Provost that the following action be taken: _____________."

The AHC shall issue its final report and recommendation by a majority vote within 10 days of the completion of the formal appeal hearing.

Special Cases

• In cases dealing with grievances, with the exception of cases described in (2) below, at the conclusion of a formal appeal hearing the AHC shall file a written report and recommendation on a grievance matter with the Provost.
• In cases referred to AFEGC from a CFSC or FRC the AHC will file its written report and recommendation with the body that referred the case to AFEGC.
• In cases dealing with ethics or academic freedom, the AHC shall file a written report and recommendation with the Chairperson of the Academic Senate.

The Chairperson of the Academic Senate shall distribute the report to the faculty members of the Senate Executive Committee.

The report and recommendations will be forwarded to the Provost if no faculty member of the Executive Committee requests that the report be considered by the joint faculty members of the Executive Committee. Otherwise, the joint faculty members of the Executive Committee will decide whether to forward the report to the Provost or to send it to the Faculty Caucus.

If the faculty members of Senate Executive Committee decide to forward the report to the Faculty Caucus, the Faculty Caucus will make a recommendation to the Provost on whether the AHC report should be accepted or rejected. This recommendation will be based entirely on whether the report adheres to the Faculty Ethics Code or to the principles of academic freedom cited in Article III, Section 1.A. of the Illinois State University Constitution.

Within 25 working days of the Senate Chairperson’s receiving the AHC written report and the results of a possible appeal, the Faculty Caucus shall forward its recommendation to the Provost. If a recommendation is not made within 25 academic working days, the written report will go directly to the Provost without recommendation.

At the request of either party, a copy of the tape recording of the formal hearing shall be made available.

Provost's Reply to AFEGC Reports and Recommendations

After receiving the Final Report of the HC and, when applicable, the written report of an Appeals Hearing Committee and the recommendation of the Faculty Caucus, the Provost shall inform the AFEGC whether or not the report and recommendation are acceptable and, if applicable, inform the AFEGC of the nature of any redress. This notification shall be in writing, within 25 administrative working days, and shall be sent to the complainant, the respondent, and the chair of the AFEGC. If the recommendation of the FHC or AHC has been rejected, the notification must include a rationale supporting that decision.

Appeals to the President

The complainant or the respondent may appeal a decision by the Provost to the President. The appeal shall take the form of a written statement to the President, filed within 5 working days of the Provost's decision, explaining the basis for the appeal. Unappealed decisions of the Provost, or decisions of the President in appealed cases, shall constitute final resolution of the complaint, and shall not be subject to any further appeal.

Links:

Flow Chart:  AFEGCFlowchart2006-04-03.ppt

3.1.44 Consensual Relations Policy

3.3.12 Code of Ethics