3.3.8D Hearing Panels, Hearings, Appeals, And Reports

I. Principles applicable to all hearings

Hearings shall be conducted according to the following procedures:

• a. Proceedings shall be conducted in good faith;
• b. Formal hearings shall be closed unless both parties consent to an open meeting or an open meeting is required by law;
• c. The chairperson of the Faculty Hearing Panel (FHP), Appeals Hearing Panel (AHP) or the Faculty Caucus, or a designee shall, at the outset of the hearing, state the issues in the proceedings to all involved parties;
• d. Subject to applicable law, the privacy of confidential records and proceedings in the hearing process shall be respected;
• e. Members serving on hearing and appeals panels should scrupulously avoid any conflict of interest and must notify the Chairperson of the AFEGC if any such conflict exists or arises;
• f. Except as modified below, the principal parties should be accorded the right:
  1. to see all documents considered by the hearing or appeals panel,
  2. to hear opposing statements,
  3. to present evidence,
  4. to submit to the AFEGC any number of proposed witnesses to be called at the discretion of the hearing panel,
  5. to submit any number of written witness statements, and
  6. to be accompanied by a technical or informed advisor who may be present only to advise the party and not to participate, including as a witness or representative.
• g. The proceedings will be audio-recorded. At the request of either party, a copy of the audio recording(s) of any formal hearing(s) shall be made available to them.
• h. The standard of proof for all hearings and deliberations will be a preponderance of the evidence standard.

II. Faculty Hearing Panel (FHP)

In cases of complaints where a conciliation effort is not deemed appropriate by the complainant, the AFEGC Chairperson, or an Ombudsperson, or where such an effort has been unable to resolve the matter, the AFEGC Chairperson shall appoint, from the members of the AFEGC, a three (3) member Faculty Hearing Panel (FHP) for each case that necessitates a hearing. The appointment shall normally take place within five (5) business days of a decision that a filed complaint falls within the jurisdiction of the committee. In cases that may involve college-level issues or relationships, the AFEGC Chairperson shall make every effort to avoid seating members from the complainant's and respondent's own college(s), but may do so if other AFEGC members are not available.

In cases where the complainant or respondent is a non-tenure-track faculty member or faculty associate, the AFEGC Chairperson shall appoint two (2) tenured faculty members of the AFEGC to the FHP and one (1) non-tenure-track or faculty associate member from the appropriate pool of NTT or faculty associate members of AFEGC.

1. The FHP shall elect a chairperson from its own membership.
2. The Chairperson of the AFEGC shall supervise the election procedure after deciding that an FHP needs to be formed.
3. No member of the AFEGC shall serve on an FHP who: (1) is the Chairperson of the AFEGC; (2) is a member of the same department/school/unit as the person(s) 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). Such members shall be considered ineligible.
4. In the event of vacancies making it impossible to staff an FHP with appropriate representatives as established above, the AFEGC Chairperson may appoint any eligible member of the AFEGC who is not a member of the same department/school/unit as the complainant or respondent to the FHP.

III. Hearing

Within ten (10) business days of the constitution of the FHP and the election of its chairperson, the chairperson of the FHP shall set a date for the hearing, unless this timeline is extended by mutual agreement of the AFEGC chairperson and FHP chairperson. Within these ten (10) days, the Chairperson of the AFEGC will schedule a meeting of the FHP membership and will provide training to review procedures, standards and confidentiality with the FHP membership.

The hearing shall be conducted according to the following procedures:

1. Within fifteen (15) business days of receipt of the submission by the complainant, the respondent shall submit to the FHP and the complainant through the chairperson of the FHP:
   
   • 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.
   • A list of proposed witnesses, if relevant, and a rationale for each. (If not supplied by the respondent, written statements may subsequently be requested from witnesses if deemed appropriate by the FHP, and will be transmitted to all parties upon receipt.);
   • Notification of intent to bring a technical or informal advisor who in rare circumstances may be an attorney, and notification of the name, relationship to the parties, and role at the University, if any, of that advisor.
   • Any other information requested by the AFEGC as part of its uniform procedures.
2. Within one (1) business day of receipt of the materials from the respondent, the chairperson of the FHP has an obligation to transmit to the complainant all the above documentation from the respondent, including names of witnesses tentatively agreed to by the full FHP, and names of advisors. If this timeline cannot be met for any reason, the timeline for the succeeding steps shall be lengthened by as many days as it took the chairperson of the FHP to transmit the information to the complainant.
3. Additional materials may not be submitted by the complainant following receipt of the respondent's materials. Complainants and respondents may request at or before the hearing an additional exchange of documents and, if desired, an additional hearing to present arguments regarding them. This exchange and/or additional hearing is at the sole discretion of the FHP.
4. Assuming the timeline outlined in this section is met, the hearing shall take place as scheduled. Should the resondent not submit the materials in a timely manner, the hearing will ordinarily take place as scheduled, but may be postponed. It will ordinarily take place within twenty (20) business days of the formation of the FHP, the election of its chairperson, and the transmission of the complaint to the respondent, whichever occurs last.
5. At the scheduled hearing:
   • The FHP will allow the complainant and the respondent, or their representative, if either so elects, to make oral presentations supplementing their written submissions;
   • The FHP 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.
   • The FHP may ask the complainant and the respondent any questions the FHP deems relevant regarding their written submissions and/or oral presentations.
   • The FHP will inquire into the situation only to the extent necessary to enable the Panel to make a recommendation or to effect a resolution.
   • Presentation and examination of all witnesses named in teh materials submitted prior to the hearing will take place only when the FHP deems it to be appropriate in a particular case. The FHP may determine that the testimony of suggested witnesses is either not relevant or cumulative and limit oral testimony to a reasonable number, not to be less than up to three for each party.
   • The FHP may call witnesses on its own motion and will do so to verify any hearsay testimony entered into the record by the parties or by witnesses.
   • The FHP will provide reasonable aid, within its ability, in securing attendance of witnesses through its status as an approved university committee.
   • The FHP will afford each party an opportunity to examine all witnesses whose appearance it has approved by submitting questions through the FHP. The FHP has the discretion to authorize either party or that party's representative to examine witnesses.
   • The FHP 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.
   • In all complaints and grievances, the complainant shall have the burden of proof throughout the hearing.
   • The chairperson of the FHP shall be responsible for conducting the hearing and has the complete authority, in consultation with the other members of the FHP, to control aspects of the proceedings not detailed here.
6. Whether or not there is the need for a continuation of the hearing into another day, within ten (10) business days after the hearing is finally concluded, the FHP will issue its written report and recommendation, approved by a majority vote, to the Chairperson of the AFEGC regarding the complaint, which will take one of the following forms:
   • The FHP may recommend dismissal of the complaint;
   • The FHP may conclude that it has sufficient information to move to a decision and issue its final recommendation regarding the complaint.

Written reports

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.

For written reports containing the FHP's final recommendation:

In academic freedom violation cases and grievance cases, the conclusion of the report and recommendation shall follow the format for each separate charge in the complaint:

“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 for each separate charge in the complaint:

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

Once the FHP has delivered its final written report either dismissing the complaint or reporting its decision and making recommendations, the Chairperson of the AFEGC shall review that report, flag any areas of concern, and ask the FHP to clarify it in writing as necessary.  The Chairperson of the AFEGC shall then communicate the FHP’s recommendation to the complainant and the respondent and inform them of their right to appeal. Within five (5) business days after receiving the FHP recommendation, the complainant or respondent may appeal the recommendation of the Faculty Hearing Panel. The appellant's written request will explain the basis for the request.

IV. Appeal Hearings

If, after a hearing, the AFEGC receives a request for an appeal hearing, or if a referral from a College Faculty Status Committee (CFSC) or the Faculty Review Committee (FRC) is deemed to warrant a hearing by an AHP, then the AFEGC Chairperson shall constitute an Appeal Hearing Panel (AHP) with members who did not serve on any FHP in the case. The AHP shall consist of five (5) members.

In the case that both appellant and the respondent to the appellant are tenured or probationary faculty members and/or administrators, the five members shall be drawn from the tenured faculty on the AFEGC. In the case that an appellant or respondent to the appellant is a non-tenure track member, the AHP shall consist of three (3) tenured faculty members and two (2) non-tenure-track members drawn from the appropriate non-tenure-track faculty pool. In the case that an appellant or respondent is a faculty associate, the AHP shall consist of three (3) tenured faculty members, and two (2) faculty associates.

The Chairperson of the AHP shall schedule the appeal hearing within ten (10) days after the AHP formation. This timeline may be extended by mutual agreement of the chairperson of the AHP and the chairperson of the AFEGC. Within these ten (10) days, the chairperson of the AFEGC will schedule a meeting of the AHP membership and will provide training to review procedures, standards and confidentiality with the AHP membership. The appeal hearing should take place so that the timeline indicated by the referring body may be honored; for a complaint/grievance, a timeline similar to that observed by the FHP of twenty (20) days or less from receipt of the appeal should be honored. The parties will be given written notice of the date, time, place, and purpose of the hearing. In constituting the AHP, the following procedures shall apply:

1. The AHP shall elect a chairperson from its own membership.
2. The Chairperson of the AFEGC shall supervise the election procedure after deciding that an AHP needs to be formed.
3. No member of the AFEGC shall serve on an AHP who (1) is the Chairperson of the AFEGC; (2) is a member of the same department/school/unit 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) Such members shall be considered ineligible.
4. In the event of vacancies making it impossible to staff an AHP with appropriate representatives as established above, the AFEGC Chairperson may appoint to the AHP any eligible member of the AFEGC who is not a member of the same department/school/unit as the appellant or respondent to the appellant.

At the scheduled appeals hearing:

• The chairperson of the AHP shall be responsible for conducting the appeals hearing and has the complete authority, in consultation with the other members of the AHP, 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 AHP 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 AHP will admit into the record of the proceedings the position statements and any documentation presented by the parties in the hearing, and may accept any additional documentation or evidence from the parties, so long as new allegations or charges are not raised.
• The AHP will provide reasonable aid, within its ability, in securing attendance of witnesses through its status as an approved university committee.
• The AHP will afford each party an opportunity to examine all witnesses whose appearance it has approved by submitting questions through the AHP. The AHP has the discretion to authorize either party or that party's representative to examine witnesses.
• The AHP may determine that the testimony of suggested witnesses is either not relevant or cumulative. It may call witnesses on its own motion and will do so to verify any hearsay testimony entered into the record by the parties or by witnesses.
• The AHP will afford each party in the dispute an opportunity to be heard by the AHP and to be accompanied by an advisor or representative of their choice. The parties shall normally speak for themselves, but the AHP has the discretion to authorize either party's representative to examine witnesses or present oral or written arguments.
• In all cases, the appellant shall have the burden of proof throughout the hearing.
• Oral arguments shall be limited to ten minutes apiece, except at the discretion of the AHP Chair.

Written Reports

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 and grievances cases, the conclusion of the report and recommendation shall follow the format for each separate charge in the appeal complaint:

"The AFEGC finds that the evidence presented in the appeal 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 for each separate charge in the appeal complaint:

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

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

Once the AHP has delivered its final written report, the Chairperson of AFEGC shall review that report, flag any areas of concern, and ask the AHP to clarify it in writing as necessary. The Chairperson of the AFEGC shall then communicate the AHP's recommendation to the appellant and the respondent to the appellant and inform them of their right to appeal. Within five (5) business days after receiving the AHP recommendation, the appellant or respondent to the appellant may appeal the recommendation of the Appeals Hearing Panel. That appellant's written request will explain the basis for the appeal.

V. AFEGC Reports and Recommendations

• In all cases dealing with academic freedom complaints, ethics complaints, or grievances, with the exception of cases described in the next bullet point, the AFEGC Chairperson shall file the written report and recommendation of the FHP and, if applicable, the AHP on the matter with the Provost and the Chairperson of the Academic Senate; these report(s) and recommendation(s) will be filed at the conclusion of the hearing, if no appeal, or at the conclusion of the appeals hearing, if the FHP is appealed, or by the Senate chair to the Provost and the AFEGC Chairperson at the conclusion of the Faculty Caucus stage if the AHP is appealed.
• In cases referred to AFEGC from a CFSC or FRC the AHP will file its written report and recommendation with the body that referred the case to AFEGC; if a referral case is appealed to the Faculty Caucus, the Senate Chair will file reports as per 3.3.8B, III.

VI. Appeals to the Faculty Caucus

In the case of an appeal of the AHP final report and recommendations, the appeal will be submitted simultaneously to the AFEGC Chairperson and the Chairperson of the Academic Senate. The Chairperson of the Academic Senate shall distribute the report to the elected members of the Faculty Caucus Executive Committee. Members of the Executive Committee and of the Faculty Caucus from the parties' department(s) and those who have 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 shall not be included in this distribution or in any deliberations.

If there is no appeal, or if in the case of an appeal, no faculty member of the Executive Committee requests that the report be considered by the joint faculty members of the Executive Committee, the AFEGC Chairperson will forward the report and recommendations to the Provost. 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 joint faculty members of the Executive Committee decide to forward the report to the Provost, they may opt to append their written comments regarding the final report and recommendations. These comments may not be in the form of a recommendation to accept or reject the AHP report and must be based entirely on observations regarding procedure and policy interpretation.

If the elected members of Faculty Caucus Executive Committee decide to forward the report to the Faculty Caucus, the Faculty Caucus will meet to discuss the appeal and will make a recommendation to the Provost on whether the AHP report should be accepted or rejected. This recommendation will be based entirely on whether the report adheres to the Code of Ethics, to the relevant policy at issue in any grievance, or to the principles of academic freedom cited in Article III, Section 1.A. of the Illinois State University Constitution. Ordinarily, the Faculty Caucus will not hold a formal hearing with the parties in attendance, but may vote to do so if circumstances warrant such a hearing. The recommendation to the Provost from the Faculty Caucus shall occur only after any such hearing.

Within 25 business days of the Senate Chairperson’s receiving the AHP written report, the Faculty Caucus shall forward its recommendation to the Provost. If a recommendation is not made within 25 academic business days and no request to extend the deadline is received by the AFEGC chairperson from the Senate chairperson, the written report will go directly to the Provost without recommendation.

VII. Provost's Actions in Response to AFEGC Reports and Recommendations

After receiving the Final Report of the FHP and, when applicable, the written report of an Appeals Hearing Panel, the comment of the elected faculty members of the Executive Committee, and/or the recommendation of the Faculty Caucus, the Provost shall inform:

1. the AFEGC Chairperson
2. the FHP, and
3. any appeals bodies

whether or not the report and recommendation have been accepted, modified, or rejected, and, if applicable, inform these parties of the nature of any redress. This notification shall be in writing, within 25 business days. It shall be sent at a minimum to the complainant, the respondent, and the chairperson of the AFEGC, who will distribute it as necessary, and, except in referral cases that have not been appealed, to the chairperson of the Academic Senate. If the recommendation of the FHP or AHP or Faculty Caucus has been modified or rejected, the notification must include a rationale supporting that decision. After any appeal to the President, the Provost shall also inform any individuals or bodies who might be empowered by the Provost or by University policy to consider or impose disciplinary actions regarding the final disposition of the case and the nature of any redress.

VIII. Appeals to the President

The complainant, the respondent, an appellant, or the respondent to an appellant 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 business 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.