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Kansas State University

University Handbook, Appendix G:
General Grievance Board Policy and Hearing Procedures

 

General Grievance Board

(FSM 9-8-81, 2-16-88, 9-10-91, 1-21-92, 12-14-99)

Ombudspersons are available to provide assistance to faculty and unclassified professionals in the resolution of concerns and disputes that arise within the university. Faculty and unclassified professionals are encouraged to contact an ombudsperson before making an administrative appeal or filing a grievance (see C190-C194).

Mediation is also an option available to faculty and unclassified professionals at any time, including during the process of filing or actively going through the grievance process. See Appendix U: Policy on Mediation. If mediation is entered into during the pre-hearing grievance process, the calendar clock as defined by the grievance process will be stopped and if the mediation is unsuccessful, the calendar is restarted where it was interrupted (see Appendix G: G,2, Filing a Grievance and Pre-Hearing Activities). In cases of unsuccessful mediation when a grievance panel has been assembled but the hearing has not yet convened, and the faculty or unclassified professional wishes to continue with the grievance process, the calendar clock will restart as defined in Appendix G: G,2,h,i &j.

A. Function

The General Grievance Board (hereafter referred to as the GGB) is established by, and responsible to, the executive committee of faculty senate to provide peer review of grievances of members of the faculty and unclassified professionals of Kansas State University. The GGB shall also hear appeals made by faculty members concerning action by the university in relation to violations of the Policy on Integrity in Research and Scholarly Activity and other such matters as the faculty senate shall provide, including discrimination based on race, color, gender, sexual orientation, religion, place of birth, age, ancestry, or disability. The function of the GGB shall be to (1) hear all evidence pertinent to the grievance; (2) make findings of fact; (3) decide whether the charges or allegations which constitute the grievance have been sustained by the evidence presented; and (4) recommend the specific course of action which should be taken; and (5) provide to the faculty senate an annual report of the board's activities and suggested changes in university policies or procedures.

B. Administrative Appeals

Before making an administrative appeal, the faculty or unclassified professional member is encouraged to contact an ombudsperson.

For a complaint regarding tenure, the complainant shall follow the procedures in sections C114.2-C114.3 of the University Handbook. For a complaint regarding promotion, the complainant shall follow the procedures in section C154.2-C154.3 of the University Handbook. For a complaint against the primary action of a dean or regarding reappointment of a tenure-track faculty member, the complainant shall have presented the complaint in writing to the provost.  For all other complaints, the complainant shall have presented the complaint in writing to the appropriate dean or vice president.  Once the written complaint is submitted, the administrator will investigate and arrange a meeting with the complainant to discuss and attempt to resolve the complaint. An ombudsperson will be included in the meeting at the request of the complainant. Within fourteen calendar days after the meeting, the administrator will provide the complainant with a written response.

C. Jurisdiction

The jurisdiction of the GGB shall extend to charges or allegations (hereafter referred to as grievances) arising out of administrative action or for which administrative action could provide a remedy, provided that all administrative remedies have been exhausted.

  1. Nature of grievances: Grievances may arise out of decisions concerning reappointment, tenure, dismissal, promotion, salary, working conditions, discrimination, or any other matters related to the employment of a faculty or unclassified professional member or other unclassified personnel.
  2. Eligibility: A grievance may be filed by current and former faculty or unclassified professionals. Grievances must be submitted within one year of the latest incident or the administrative action/inaction at issue.
  3. Grounds: Grounds for a grievance shall include, but shall not be limited to, (1) a violation or misapplication of the written rules, regulations, or established practices governing the university and its units; (2) improper, arbitrary, or capricious action of the university or its agents; (3) violation of academic freedom; and (4) discrimination.
  4. Exhaustion of administrative remedies: Exhaustion of administrative remedies include attempting to resolve the grievance through normal administrative channels, culminating in the required administrative appeal under Section B below. For a grievance alleging discrimination, exhaustion of administrative remedies also includes a review of the discrimination allegations by the Office of Affirmative Action.

D. Composition

The GGB shall be composed of 60 tenured faculty members on full-time appointment, including a minimum representation of women and minorities as defined by federal regulations (black, hispanic, asian, and native american) in equal proportion to their numbers in the eligible faculty pool, or ten women and seven minorities, whichever is greater. One member shall be the chairperson.

  1. The chairperson shall be appointed for a one-year term, which shall begin the first day of the fall semester, by the Executive Committee of Faculty Senate from among the faculty members who have previously served on the GGB.
  2. The Executive Committee shall appoint, by random selection from a list of eligible faculty, the other members to staggered three-year terms, which shall begin the first day of fall semester, with one-third appointed each year. Replacements shall be filled in like fashion. Normally, no member shall serve more than one consecutive three-year term. However, any GGB member who has not served on a hearing panel shall be eligible for appointment to a second consecutive term.

    Service on the GGB shall be considered as service to the university and shall be considered as part of each member's faculty responsibility during the term of appointment; the department head or functional equivalent shall ensure that service on the GGB shall be given consideration in decisions affecting the teaching and department assignments, salary, and promotion of the faculty member.

E. Confidentiality

The hearing shall be closed, unless the grievant requests it to be open. Deliberations of the panel shall be in closed session. Unless the grievant requests an open hearing, all proceedings of the panel shall be confidential, including the identity of the parties and the specific elements of the grievance.

F. Legal Advice for GGB

At the beginning of each fall semester, the chairperson shall call a meeting of the GGB, at which an attorney from the attorney general's office or the Board of Regents and/or other legal counsel, invited by the chairperson, shall provide information about the role of the members of the hearing panel in the grievance proceeding, including the requirements of due process, the mechanics of fact-finding, judicial review, and liability of GGB members. In addition, each hearing panel shall have the assistance of such an attorney for each individual grievance, if requested by its presiding officer (see G.1.l.)

G. Grievance Hearing Procedures

  1. General Policies and Procedures
    1. The grievance hearing procedures are to respect the ordinary standards of fairness but are not intended to be equivalent to a judicial hearing. The goal is to provide the hearing panel with the best opportunity to determine the truth and to make a recommendation to the president of the university as to the most appropriate resolution on the matters in dispute. The hearing shall be held as expeditiously as possible, but in any event the grievant shall have the right to a hearing within 35 work days after submission of a grievance to the GGB chairperson, provided that extensions may be granted by the chairperson for cause and within a specified period of time consistent with the other provisions of this document.
    2. Members of the university community are encouraged to participate in the grievance process. In the event that a respondent (administrator[s] whose action or inaction is the basis of a grievance) refuses to participate, the matter will be resolved administratively by agreement between the next higher-level administrator and the grievant. The person who refuses to participate cannot use the grievance procedure on any matter related to the original charge or its resolution. Witnesses called by either party are expected to participate as a responsibility of being a member of the university community.
    3. Each grievance shall be heard by a panel composed of four members, a presiding officer, and two alternates, appointed by the GGB chairperson from among the members of the GGB. The presiding officer participates in the hearing but shall vote only to break a tie vote of the hearing panel. During the course of a hearing a panel member may be replaced by an alternate by the GGB chairperson based on justification(s) provided by the presiding officer. The GGB chairperson and the panel alternates will attend the hearing but are not to participate. For cases involving discrimination, the chairperson shall include members appropriate to the particular case. If necessary, and when practicable, the chairperson will appoint an additional committee member to represent the appropriate classification of faculty or unclassified professional with a disability.
    4. A grievance brought by an unclassified professional who is not a faculty member, shall be reviewed in accordance with the provisions of Appendix G, and shall have a choice of: (1) a hearing panel of the composition specified in Appendix G, or (2) a hearing panel selected from a separate pool which shall include all unclassified professionals who are not faculty members, except persons holding positions in the administrative unit in which the grievant or respondent(s) are appointed.
    5. As a component of their academic duties, members of the GGB are expected to serve on a grievance-hearing panel when called to do so. It is recognized that to fulfill this obligation may require reasonable adjustments in other responsibilities, which should be facilitated by their supervisor. Appropriate reasons for being excused from service (including conflict of interest and commitments) will be determined by the GGB chairperson, whose determination will be final. Service on a hearing panel must receive positive recognition and shall not jeopardize the person's yearly evaluation for performance, merit salary increases, or promotion. Some form of additional compensation is expected for faculty or unclassified professionals on nine-month appointments who are involved in a hearing that takes place during the summer (see G.4.i). As state employees, when acting within the scope of their employment, individuals who serve on a hearing panel are eligible for legal representation and indemnification under the Kansas tort claims act.
    6. The hearing panel's deliberations are confidential and closed to all persons including the alternates and the GGB chairperson. Panel members are not permitted to individually contact persons involved in the grievance and will not on their own initiative conduct any form of fact-finding or investigation. Beyond the final report, panel members will not discuss case-specific aspects of a grievance hearing or panel deliberations.
    7. At the hearing, each party may be accompanied by (1) a representative, who is not an attorney, to serve as an advocate and/or assist in the presentation, and/or (2) an attorney, who may advise, but not participate in the proceedings. If the grievant chooses not to be accompanied by an attorney, the respondent(s) will also not be accompanied by an attorney.
    8. Advocates who are state employees and are acting within the scope of their employment are eligible for legal representation and indemnification under the Kansas tort claims act. The advocate is only expected to make a best effort and the outcome of the hearing cannot be appealed based on the actions/performance of the advocate. While the advocate can aid in preparing the presentation and can participate in the hearing, the primary responsibility for establishing the validity of the complaint or presenting a defense rests with the grievant and the respondent(s). Advocates will appropriately respect the confidential nature of information and materials that they are exposed to during the course of a grievance hearing. Activities as an advocate will be considered service to the university which must receive positive recognition and shall not jeopardize the person s yearly evaluation for performance, merit salary increases, or tenure/promotion.
    9. Hearings are generally scheduled to occur on two consecutive days. One-day extensions may be granted by the GGB chairperson, upon justification by the panel chair, and should be scheduled, if possible, to take place not more than one week after the first day of the preceding panel meeting. In scheduling the hearing, the GGB chairperson will determine whether or not conflicts are sufficiently valid to warrant a rescheduling of the hearing to a different date. Otherwise, the individual is obliged to attend the hearing (see G.4.i).
    10. In addition to the preceding provisions, the presiding officer, in consultation with the GGB chairperson, shall have the discretion to establish supplementary procedural rules deemed necessary, and shall inform both parties of such rules at least five days prior to the hearing. At the discretion of the presiding officer and GGB chairperson, a pre-hearing meeting of the parties and/or their non-lawyer representatives may be convened to consider specific issues related to the procedures to be followed.
    11. It shall be the responsibility of the GGB chairperson to ensure that a good-quality audio recording is made of the hearing. A tape recorder and tape shall be provided by the Office of the Provost. A secretary, who is not a member of the GGB, shall be appointed by the president of faculty senate to take minutes. At the direction of the GGB chairperson, the university will provide suitable space, associated equipment, supplies, and refreshments necessary to meet the reasonable needs of the hearing panel and the parties involved.
    12. Each hearing panel shall have the ongoing assistance of legal counsel (typically from the Board of Regents or Attorney General's Office), who may provide information about the role of the members of the hearing panel in the grievance proceeding, requirements of due process with respect to the panel's procedures, the mechanisms of fact-finding, prejudicial actions/information, judicial review, and liability of panel members. The panel is not to rely on its legal counsel for interpretation or judgment of fact. Normally, the hearing panel will meet prior to the beginning of a hearing to review procedures and to confer with its counsel. During the hearing the presiding officer and/or panel may adjourn to privately discuss specific issues related to the hearing and to confer with its counsel.
  2. Filing a Grievance and Pre-Hearing Activities
    1. The grievance process shall be initiated by a written request, submitted by the grievant to the GGB chairperson, with a detailed statement of the grievance, which shall include (1) an account of the alleged administrative action/inaction which gave rise to the grievance and the dates; (2) the name(s) of the administrator(s) who will be the respondent(s); (3) the precise grounds upon which the grievance is based; (4) whether an "open" or "closed" hearing is requested, and (5) the nature of the relief sought. When terms such as "capricious," "arbitrary," "collegiality," etc. are used as the basis of a grievance or an administrative response, it is incumbent upon the person who uses these terms to demonstrate by example or specific evidence the meaning of such terms and how they apply.
    2. The grievant will be assisted by the GGB chairperson in obtaining relevant documents and information when such items are judged to be of critical importance in supporting the request for a grievance hearing. The chairperson shall determine whether the grievance falls within the jurisdiction of the GGB and if the materials presented by the grievant meet adequate standards of detail and clarity.
    3. Within five work days from the date of acceptance of the grievance by the chairperson, the chairperson shall give to both parties written notification of same, including a copy of the grievance.
    4. Within ten work days following such notification, each party shall submit to the chairperson, with copies to the other party, a preliminary list of (1) all documents to be introduced; (2) witnesses to be called; and (3) documents requested from the other party, plus (4) the name of the attorney, if an attorney is to accompany the party to the hearing; and (5) the name and title of the non-lawyer representative (advocate), if one is to accompany the party to the hearing. In addition, the respondent(s) shall submit a written response to the allegations contained in the grievance.
    5. Within 15 work days from the date of notification prescribed by G.2.c, the parties shall provide each other, with a copy to the GGB chairperson, the documents requested in G.2.d or a statement as to why the documents are not being provided (e.g. they are irrelevant or nonexistent) and all other documents to be introduced during the hearing. The claim that documents are privileged or confidential shall not in itself be sufficient justification for withholding them from the other party. The validity of the basis for not producing a requested document will be judged by the GGB chairperson whose ruling can be appealed to the hearing panel at the time of the hearing.
    6. Within 15 work days from the date of notification prescribed by G.2.c, the GGB chairperson shall provide to each party: (1) a list of the members of the hearing panel, the presiding officer, and two alternates; and (2) notification of the date(s), time(s), and place(s) of the hearing.
    7. Within 20 work days from the date of notification prescribed by G.2.c, each party may strike name(s) from the list of panel members for conflict of interest or for other just and sufficient cause, which shall be determined by the GGB chairperson. The GGB chairperson shall appoint replacements as necessary. Both parties will also exchange, with copies to the GGB chairperson, an updated list of documents to be introduced and witnesses that may be called. In no more than 35 class work days from the date of acceptance of the grievance by the GGB chairperson, as prescribed by G.2.a, the hearing shall begin, except as provided by G.1.i. and G.4.i.
    8. If the pre-hearing grievance process was stopped because a faculty or unclassified professional entered into mediation and that mediation was unsuccessful the calendar clock as defined by the grievance process will be restarted where it was interrupted. In cases of unsuccessful mediation when a grievance panel has been assembled but the hearing has not yet convened, and the faculty or unclassified processional wishes to continue with the grievance process, the calendar clock will resume as provided below to allow the Chair of the Grievance Board to assemble a new panel if necessary and reschedule the hearing.
    9. Within 10 work days of the process resuming, the GGB chairperson shall provide to each party: (1) a list of the members of the hearing panel, the presiding officer, and two alternates; and (2) notification of the date(s), time(s), place(s) of the hearing.
    10. Within 5 work days from the date of notification prescribed by G.2.i, each party may strike name(s) from the list of panel members for conflict of interest or for other just and sufficient cause, which shall be determined by the GGB chairperson. The GGB chairperson shall appoint replacements as necessary. Both parties will also exchange, with copies to the GGB chairperson, an updated list of documents to be introduced and witnesses that may be called. In no more than 25 class work days for the date of the resumption of the grievance the hearing shall begin, except as provided by G.1.i and G.4.1.i.
    11. All rules and policies as defined by General Grievance Board Policy and Hearing Procedures remain in place.
  3. Grievance Hearing Procedures
    1. The presiding officer shall call the hearing to order, state the nature of the grievance, and review the rules (including those appropriate for an open or closed hearing). Because the hearing is a peer review, the panel shall not be bound by strict legal rules of evidence; it may admit any evidence it considers pertinent to the grievance, and may exclude evidence it considers not pertinent. On issues of procedures, evidence, relevance, and all other items related to the hearing, the presiding officer in consultation with the hearing panel is the final authority.
    2. The grievant and the administrator(s), in that order, will make short opening statements not to exceed 20 minutes. The panel will then have an opportunity to ask questions of either party in order to clarify specific issues before presentation of evidence and testimony of witnesses.
    3. The grievant shall present evidence, which may include testimony by supporting witnesses, documents, and/or other relevant material. The respondent(s) may (1) cross-examine each witness following his or her testimony and (2) object to any testimony on grounds it is not relevant or is repetitive. Members of the panel will have the opportunity to ask questions of each witness after each cross examination.
    4. The respondent(s) shall present evidence, which may include testimony by supporting witnesses, documents, and/or other relevant material. The grievant may (1) cross-examine each witness following the testimony and (2) object to any testimony on grounds that it is not relevant or is repetitive. Members of the panel will have the opportunity to ask questions of each witness after each cross examination.
    5. The grievant and the respondent(s), in that order, may then present evidence in rebuttal of previously introduced evidence. The other party may object to any rebuttal testimony on the ground that it is a new subject, is not relevant, or is merely repetitive. Members of the panel will have the opportunity to ask relevant questions of each rebuttal witness.
    6. Witnesses shall not be present at the hearing until called to testify and then shall be excused, unless either party or the GGB requests that they remain available. Only witnesses who have been excused may remain in the audience and then only when it is an open hearing. Witnesses called by the grievant who are also persons against whom the grievance has been brought may be present prior to giving testimony.
    7. The respondent(s) and the grievant, in that order, may make a closing statement.
    8. Members of the panel may question the parties and/or recall witnesses for questioning. At any time during or after the close of the hearing, the presiding officer after consultation with the panel may request from the grievant or respondent(s) the production of any other information the panel deems relevant. Refusal to comply with this request and the reason(s) will be noted in the panel's report.  If such additional information is acquired by the panel, the Chair of the Panel will reopen the hearing to afford all parties an opportunity to respond with comments or additional evidence.  The schedule for presenting the panel's report will then follow the closing of the reopened hearing. (See 4.d)
  4. Findings, Recommendations, Appeals, and Reporting Responsibilities
    1. The goals of the hearing panel are to (1) establish the facts of the matter in question, (2) decide whether or not it believes university policy or generally accepted principles of academic conduct have been violated, and (3) if violation(s) have occurred, decide whether these are sufficiently serious that some corrective action(s) should take place and (4) recommend to the president of the university what, if any, action(s) should take place.
    2. The decision of the panel shall be based only upon the testimony and other evidence presented at the hearing. The grievant shall bear the burden of demonstrating, by a preponderance of the evidence, that relief should be granted. The report of the panel shall include (1) an evaluation of the evidence and findings of fact, (2) a description of the recommended specific relief or course of action that should be taken, and (3) the reasons supporting the decision. A minority statement(s) may be appended to the report.  In instances where the hearing panel determines that there has been a blatant or persistent violation of university policies or procedures by a respondent, the panel may recommend that the grievant be reimbursed for documented expenses involved in pursuing the grievance, including attorney fees, up to a maximum of $2,500 of all expenses.
    3. The panel shall have discretion to recommend that the relief sought should be granted or denied, or that some other form of resolution should be employed as long as such relief is consistent with policies set forth in the University Handbook. In the event of a finding that university policy has been violated, the panel may recommend that a brief statement of the finding become a part of the offending party's personnel file(s). Any disciplinary action that may be suggested will be in accordance with university policies and procedures, and depending on the severity of the offense, such sanctions may include (but are not limited to) a letter of reprimand, a formal warning, suspension, demotion, or termination of employment.
    4. Within 21 work days after the completion of the final hearing session, the presiding officer shall present the report to the GGB chairperson, who shall within the following five work days, send copies to (1) the president of the university, (2) both parties and (3) the president of the faculty senate. The findings of the hearing panel are final and cannot be appealed.
    5. The President of the University shall respond to the recommendations of the GGB within 10 work days of receiving the report. Copies of the response and notification of subsequent actions taken should be sent to the chairperson of the GGB, the parties of the grievance, and the president of the faculty senate. If confidentiality of the nature of the implementation of the president's decision is part of the disposition and is agreed to by both parties, the president of the faculty senate shall receive notice only of the fact that disposition has taken place and that it is confidential.
    6. The complete record, including all evidence presented, shall be retained in the files of the faculty senate. Both parties, at their own expense, may copy the record at a place and time to be determined by the president of the faculty senate.
    7. At the first meeting of faculty senate each fall semester, the chairperson of the GGB who served the preceding year shall report the (1) number and (2) nature of grievances heard during the preceding year, including, if consistent with other provisions of this document, (3) other information about individual grievances considered to be a concern of the faculty senate and may suggest recommendations for modification of relevant policies and procedures.  Without regard to the panel's finding or the response from the President of the University, the administration will make every effort to insure that anyone participating in the grievance hearing is not subjected to retaliation.
    8. The committee to hear a case regarding the dismissal of a tenured faculty member (Appendix M) shall retain its assigned jurisdiction.
    9. For the purpose of this section a "workday" is defined as any weekday that is part of the regular nine-month academic calendar, including all days that classes are conducted, the period of final examinations, and intersessions. Legal holidays and during the time when summer school is in session are excluded from the definition of "workday." However, if it is agreed to by the parties that a hearing can be conducted and/or the process completed during a vacation period, those members of the panel who are not on scheduled work time will be compensated for their time at their normal rate.