Revised April 29, 2009 by UAS
Written and accepted resignations from the faculty shall be effective according to their terms, and shall not be subject to any rights of reconsideration or review at the instance of either party without the concurrence of the other. Unless expressly provided to the contrary, all right to rank, tenure, salary, and benefits shall terminate as of the effective date of the resignation.
In all cases of nonrenewal, suspension, or termination for absolute or discretionary cause (except resignation), a faculty member's entitlement to salary and fringe benefits shall continue, irrespective of any suspension from duties:
(1) for a period of at least thirty days after the cause arises;
(2) where notice is required under Section 307.03, after service of such notice;
(3) where a formal hearing has been requested as provided in Section 307.07, until the University has made a final decision following the report of the hearing, whichever is longer;
(4) in the cases provided in Section 306.02(2), such entitlement may be terminated as of the day following the commencement of such cause;
(5) salary entitlement shall, in cases of disability, be limited by the provisions of the University's disability program.
In the discretion of the cognizant appointing authority, the faculty member's duty assignment may be either continued to a time not beyond the time at which his/her salary and benefits terminate, or may be suspended or terminated earlier.
In all cases of nonrenewal, suspension, or termination for absolute or discretionary cause, except Section 307.02(1) and (3), death, and permanent, total disability, the appropriate appointing authority of the University shall notify the faculty member in writing of the University's action. The notice shall include:
(1) The statute allegedly violated; the date of the alleged violation; the location of the alleged violation; a sufficiently detailed description of the facts constituting the violation including the names of the witnesses against the faculty member.
(2) The nature of the University's contemplated action, with a specification of the date or dates upon which such action is to become effective with respect to faculty status, duties, salary, and benefit entitlements, respectively.
(3) Such notice shall be personally delivered and service shall operate from date of such delivery; if in the exercise of reasonable diligence it is not possible to personally serve the faculty member, it may be served by certified mail addressed to the faculty member's last known place of residence, and service shall operate from date of mailing.
A faculty member shall, within ten days of the service of such notice, file with the appointing authority a written objection to all or part of the University's charges or its contemplated action unless an extension is granted for good cause. The failure to timely respond shall be deemed an acquiescence and acceptance of the action according to its terms. Neither such action nor its causal basis shall thereafter be subject to any rights of reconsideration or review at the instance of either party. Whenever such objection shall be expressly limited to one or more parts or aspects of the alleged cause or contemplated action, rights of reconsideration or review shall be limited accordingly.
Whenever a timely objection shall be filed, the cognizant appointing authority shall accord the faculty member fair opportunity to be specifically advised, in one or more conferences, of the alleged cause for the University's contemplated action; and to negotiate such reconsideration or amendment of the contemplated action as may be agreed upon. Either party may enlist the aid and counsel of other persons who may participate in the process of such conference and negotiation, provided that every such person is fully identified to the other in advance with respect to his/her capacity and scope of authority, and provided that every such conference shall be deemed a conference for purposes of settlement. All statements made in such conferences are privileged and may not be used for any purpose in any other proceeding.
Either party may elect to refer any or all issues to the Faculty Council for the purpose of having one or more disinterested mediators appointed, who, promptly upon appointment, shall confer with the parties, investigate the matters at issue, and recommend to the respective parties an appropriate resolution of the issues between them.
Adopted by Faculty Hearing Committee on 10/19/80
Approved by Academic Senate on November 15, 2000
Faculty Hearing Committee Procedures:
Contested Appointment Non-renewal, Suspension or Termination of Tenured Faculty Member
1. In accord with Part II-D-3 of the Marquette University Faculty Handbook, the Faculty Hearing Committee (hereinafter the FHC) serves as the advisory body in cases of contested appointment non-renewal, and suspension or termination (hereinafter dismissal) of a tenured faculty member for absolute or discretionary cause.
2. A faculty member who has been awarded tenure at Marquette University may only be dismissed upon a showing of absolute or discretionary cause, as these terms are defined by the Handbook for Full-Time Faculty (hereinafter University Statutes), Section 306.02 (absolute cause) or 306.03 (discretionary cause). Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed them by the United States Constitution.
3. The contested dismissal of a faculty member with tenure shall be preceded by: (a) notice of grounds as provided in Section 307.03 (to which the faculty member has filed a written objection as provided by Section 307.04); (b) discussions between the said faculty member and appropriate administrative officers from the University and the College or Department in order to explore settlement as provided in Section 307.05; and (c) elective mediation under the auspices of the Faculty Council as provided in Section 307.06.
4. When such a dispute has been pending and unresolved for at least 120 days, the University Administration shall issue a “Notice of Pending Dispute” to the subject faculty member and to the Chair of the FHC. Such notice will inform the FHC in writing of the failure to resolve the matter and of the Administration’s intent to proceed with dismissal. At that time, the Administration will also transmit to the chair of the FHC a copy of the notice of grounds filed under Section 307.03, as well as any and all evidence upon which the Administration has made its decision.
5. Within 90 days of receipt of any Notice of Pending Dispute, the FHC will schedule a hearing to determine the existence of cause and to make findings of fact and conclusions.
6. Following receipt of the Notice of Pending Dispute, the faculty member may waive the right to proceed before the FHC by submitting an explicit written statement to the Chair of the FHC and to the Administration, indicating his or her intent to waive any right to appear and present evidence. If the faculty member waives the right to appear but denies the charges or asserts that the charges do not support a finding of adequate cause, the FHC will evaluate all available evidence and rest its findings of fact and conclusions upon the evidence of record.
7. As constituted, the FHC shall be composed of seven tenured faculty members elected by the faculty as a whole under the supervision of the Committee on Committees and Elections. Members shall be elected for three-year terms. The FHC shall elect a chair and a vice chair. Five (5) members of the Committee shall constitute a quorum, and the action of a majority of the members present at any session duly convened shall be the action of the Committee, except when the FHC is convened to conduct a hearing on the contested dismissal of a tenured faculty member for absolute or discretionary cause, as noted in paragraph (8) below.
8. In the case of a hearing on the contested dismissal of a tenured faculty member, a quorum of five (5) members of the FHC shall constitute a hearing, but any findings of fact and conclusions must be rendered by all members of the FHC. On final disposition of any pending case, no abstentions will be allowed. Any member of the FHC who is absent during a scheduled session or hearing must study the evidence before participating further in FHC deliberations. Members of the FHC who deem themselves disqualified for bias or interest will remove themselves from the case. In addition, either party may petition the FHC for recusal of a particular committee member on grounds of bias or interest. Removal of a member for bias or interest is at the discretion of the FHC. Replacement member(s) to the FHC will be selected from the duly constituted list of alternates maintained by the Faculty Council.
9. Notice of a hearing before the FHC must be personally served upon the faculty member and the University Administration at least twenty (20) days prior to any hearing by the FHC on pending charges. Within ten (10) days after such notice, each party may submit additional statements summarizing the issues and the evidence theretofore produced. As noted in paragraph (6), if the faculty member denies the charges or asserts that the charges do not support a finding of absolute or discretionary cause, the FHC will evaluate all available evidence and rest its findings and conclusion upon the evidence of record.
10. All hearings conducted by the FHC shall be closed, unless both parties agree otherwise. Adjournments may also be granted at the request of any party, within the discretion of the FHC.
11. The subject faculty member will be afforded an opportunity to obtain necessary witnesses and documentation or other evidence and is entitled to examine the evidence submitted to the FHC by the University Administration. The Administration also will cooperate with the FHC in securing witnesses from the University and making available documentary or other evidence. Likewise, the Administration will be entitled to examine documentary or other evidence submitted to the FHC by the subject faculty member.
12. During these proceedings, the subject faculty member may be represented by legal counsel or may appear with an academic advisor. Likewise, the Administration may appear or be represented by its legal counsel. Furthermore, at the request of the Administration, the faculty member, or the FHC, a representation of the AAUP will be permitted to attend the proceedings as an observer.
13. A tape recording will be made of any hearing before the FHC. If requested, a verbatim transcript of the tape recording will be made available to the FHC and to the faculty member without cost to the faculty member.
14. The burden of proof that absolute or discretionary cause exists to dismiss a tenured faculty member rests with the University. It will be satisfied only by clear and convincing evidence in the record considered as a whole. The University Administration must appear at the hearing by a designated representative, and it must make the initial showing.
15. At the hearing, the subject faculty member and the University Administration will have the right to confront and ask questions of all witnesses. Any member of the FHC also shall have the right to question a witness. Where the witnesses cannot or will not appear, but the FHC determines that the interests of justice require their statements, the FHC will identify such witnesses and provide interrogatories to such witnesses. Thereafter, the FHC will provide copies of the interrogatories, together with any response, to the University Administration and the subject faculty member.
16. The faculty member or the Administration also shall be permitted to introduce testimony of qualified professionals at the hearing, including those from outside the University. Any compensation due such professionals remains the obligation of the party who calls that witness.
17. If either the University Administration or the subject faculty member willfully fails or refuses to give relevant evidence that is exclusively within its control, the issue shall be resolved against the party who so fails or refuses to give evidence. With respect to student academic or disciplinary records, however, it is understood that the University Administration must observe the Federal Educational Rights and Privacy Act (FERPA), and does so without prejudice to its case.
18. The FHC will not be bound by legal rules of evidence and may admit any evidence that is deemed probative of the issues involved in the proceedings.
19. Following the hearing, the FHC will meet as a whole to discuss the evidence and will issue findings of fact and conclusions based upon all matters of record. In the event the findings of fact and conclusions are not unanimously supported by members of the FHC, the FHC shall articulate the dissenting views. If the FHC concludes that an academic penalty less than dismissal is warranted by the evidence, its findings of fact and conclusions will set forth a recommendation to that effect together with supporting reasons. In all events, the FHC’s findings of fact and conclusions shall issue as soon as is reasonably possible, but not more than ninety (90) days following termination of the proceedings.
20. The FHC will issue its findings of fact and conclusions, together with any supporting reasons, to the President of Marquette University and, either personally or by certified mail, to the subject faculty member.
So long as the periodic compensation and benefits provided by the faculty member's appointment are both continued, and during such further periods of negotiation, mediation, hearing, or review as the parties may mutually stipulate, both parties shall diligently continue in good faith to attempt a mutually-acceptable resolution of the issues between them by one or more of the procedures described in the three preceding sections, and neither shall, during such period, resort to or encourage litigation, demonstration, or tactics of duress, embarrassment, or censure against the other; provided that this paragraph shall not be construed so as to require the University to continue the faculty member's duty assignment during such period.
To the extent that none of the foregoing procedures produces a resolution of the issues arising out of a timely objection to a faculty member's nonrenewal, suspension, or termination, at or prior to the time specified in the preceding paragraph, the University shall, for a period of six months thereafter, or until the final determination of any judicial action which may be commenced within such period to test the validity of the nonrenewal, suspension, or termination, hold itself ready to reinstate the faculty member, with unimpaired rank, tenure, compensation, and benefits, to the extent that the faculty member's entitlement thereto may be judicially adjudged or decreed, or conceded by the University in such interval. Whenever entitlement to retroactive compensation is so determined, such compensation shall be reduced by any amount otherwise earned by the faculty member in the same period.