4.36 Due Process Policy

I. Policy

When, in accordance with the College's Policies 4.07 or 4.08 or 4.31, an exempt employee has received notification of recommendation for the employee's dismissal or notification of the College's refusal to grant the employee an additional contract, that employee has the option to exercise his or her right to a Due Process Hearing and have the recommendation be considered by a Due Process Panel. However, in accordance with 4.64 Sexual Misconduct Policy, some forms of harassment may also violate the College’s policy against Sexual Misconduct under Title IX. When a report of harassment is received, the Title IX coordinator will determine whether it shall proceed under this policy or the Sexual Misconduct Policies and Procedures.

II. Due Process Procedure

A. Within ten working days after receipt of the request for a hearing by the involved employee, the Executive Assistant to the President shall make the necessary appointments to a Due Process Panel and give notice of the hearing.

B. The Due Process Panel shall consist of five members plus the Executive Assistant to the President serving as the Presiding Officer. The Presiding Officer shall work with the President of the College Senate (or designee) or a member of the Leadership Council, as applicable, to select five members of the Panel. The President of the College Senate (or a designee), a member of the Leadership Council, and a representative from Human Resources will account for three panel members. The remaining two members will be selected from the College Senate or Leadership Council and will include members from the involved employee's peer group. No member of the Panel shall have any personal interest or be directly or indirectly involved in the matters under consideration. The Panel shall appoint a substitute member when necessary.

C. The hearing date shall be set no later than ten working days from the date of the request by the employee. Any request for postponement must be submitted in writing to the Presiding Officer at least three working days prior to the scheduled hearing. The Presiding Officer reserves the right to extend the notice of the hearing or date of the hearing if additional time is needed.

III. Due Process Hearing

A. The Due Process Hearing shall be closed to the public. The hearing shall be audio recorded, and a duplicate of the audio recording shall be made available to the involved employee upon request. A Notary Public shall swear in all witnesses.

B. The Presiding Officer shall open the hearing by reading the recommendations of the involved administrators into the record. The Presiding Officer shall then read into the record those issues which the Unit Vice President submitted to the Panel.

C. The involved administrators shall present evidence in support of their recommendations and shall have the burden of establishing, by the greater weight of evidence, that the employee should be dismissed or should not receive an additional contract. The involved administrators and the involved employee shall have the right to counsel, to confront and cross-examine adverse witnesses, and to examine all documents and other adverse demonstrative evidence. Any member of the Panel may ask questions of the involved administrators, the involved employee, their counsels, and any witness.

Rules of evidence shall not apply to the Due Process Hearing. If, due to extenuating circumstances, a witness cannot be present at the hearing, a written statement may be submitted prior to the hearing. The involved employee is responsible for arranging for the attendance of any witnesses that he/she would like to be present at the hearing in support of the case. To protect the confidentiality of the hearing, the involved employee, or counsel, may decide if witnesses will be called one at a time or brought in all together.

D. After hearing the evidence, the Panel shall afford both the involved employee, or counsel, and then, the involved administrators, or counsel, an opportunity to summarize their respective positions. Any such summarization shall not exceed 15 minutes. The Presiding Officer then shall direct the Panel to adjourn to closed session, which may be adjourned and subsequently reconvened within ten working days at the discretion of the Panel.

E. In its closed session, the Panel will consider the evidence presented and will prepare its report to the President. The five panel members, by majority vote, will respond to the recommendation of the Unit Vice President, and the Presiding Officer is responsible for delivering the Panel's report to the President within five working days after completion of deliberations. The Panel's report may be accompanied by the Panel's recommendations as to the actions believed to be warranted.

F. Upon receipt of the Panel's advisory report, the President shall decide whether the involved employee is to be dismissed or deprived of any additional contract. The President's decision shall be delivered to the involved employee and/or counsel by certified mail, postmarked no later than ten working days after receipt of the Panel's report. If it is finally decided that the employee is not to be dismissed, the employee shall be entitled to receive any pay that may have been withheld and shall be reinstated without loss of status or benefits. The decision of the President shall be final.

Changes approved by Board of Trustees on January 9, 2008; November 25, 2009; September 1, 2010; September 9, 2015
Changes approved by Cabinet on February 21, 2005; January 5, 2009