employees / Senate Handbook / 3.021 Progressive Discipline for Faculty for Reasons Other Than Teaching Effectiveness

3.021 Progressive Discipline for Faculty for Reasons Other Than Teaching Effectiveness

Introduction
1. Just Cause
  Faculty members subject to this policy shall not be disciplined or have their employment terminated without just cause as defined and determined exclusively by this policy. A just cause discipline or discharge may result from acts or omissions of the faculty member that significantly and adversely impact the member's ability to properly perform the non-teaching duties and responsibilities of his or her position. A just cause discipline or discharge may also result from the faculty member's conduct which significantly and adversely affects the well-being of the College or members of the College community. It may also arise from the inability or unwillingness of the faculty member to adjust behavior after corrective actions have been taken, or illegal acts that directly and negatively impact the College or members of the College community or that are violent in nature. Examples may include but are not limited to:
  1. Willful engagement in actions such as fraud, including falsification of employment credentials or information, theft, assault, or battery.
  2. Willful and continued failure to comply with the provisions of Delta College’s regulations, rules, procedures or policies.
  3. Willful and continued conduct in relation to College obligations that is unethical and detrimental to the College.
  4. Willfully imparting any confidential information as defined by state and federal laws, regulations or guidelines to any unauthorized person.
  5. Willful failure, for any reason, within five days after receipt of written notice from the College to correct or cease any conflict of interest.
    Lack of teaching effectiveness will be considered under Senate Policies 3.060, 3.061 and 3.062. Issues of teaching effectiveness alone are not sufficient to implement this policy.
2. Exclusive Remedy
  This policy shall be the eligible faculty member’s exclusive remedy for determining whether a disciplinary action or termination has been for just cause. The employment protections of “just cause” are established by this policy and shall be determined exclusively through the procedures established herein.
  Eligible faculty members who have been disciplined or discharged, and who do not properly avail themselves of this policy, or to any step of this policy, shall be deemed to have accepted the determination of whether or not just cause exists or existed to discipline or terminate an eligible faculty member without any eligibility to otherwise contest the charge(s) or penalty brought against him/her.
3. This policy shall only apply to faculty members who are members of the Senate Assembly. Anyone who is disciplined up to and including termination has access to the entire appeal process outlined below.
4. In order to ensure the faculty member’s rights are preserved and available resources are accessible, the College’s legal counsel and Human Resources Office will review applicable policies, procedures, federal and state regulations throughout the implementation of this policy. If at any point it is determined that other policies, procedures, federal or state regulations take precedence, the disciplinary action may be delayed or ended.
Progressive Discipline
The concept of progressive discipline will be followed when appropriate. Discipline is intended to be corrective in nature. The purpose of corrective disciplinary action is to impress upon the faculty member the seriousness of the action and to correct behavior or performance. The type and severity of the disciplinary action will depend on the nature and seriousness of the offense, the faculty member’s disciplinary and work history, and any mitigating or aggravating circumstances. The recognized steps to respond fairly to misconduct may include verbal reprimand, written reprimand, discipline/suspension with or without pay, and termination, depending on the circumstances. Copies of disciplinary action will be placed in the Division Office and in the faculty member’s personnel file.
In typical cases suspension or termination will be with pay until the appeal process is concluded. In cases of clear and present harm to the College or College Community, a faculty member may be immediately suspended with or without pay, or terminated effective immediately without going through the usual progressive discipline steps.
If progressive discipline results in suspension or termination, the faculty member will immediately transfer all relevant student documents pertaining to grades and course materials to the appropriate academic Associate Dean.
When there are just cause circumstances, the Academic Services Office will notify the College President, the Human Resources Director, College legal counsel, the appropriate academic Associate Dean, and, if necessary, Public Safety of its intent to discipline a faculty member. This policy will be implemented when other forms of conflict resolution have failed to correct the harm or when there is immediate and present danger to the faculty member or the College.
The Chief Academic Officer or designee will keep appropriate College officers such as General Counsel and the Human Resources Director fully informed and will consult with them throughout the process.
The Senate President will ensure compliance with Senate Policy and Procedure. If the Senate President has been previously involved in the process, s/he will designate a more neutral person from the ranks of Senate Vice President, or a past Senate President, not previously involved in the action, who will manage the process.
Formal Charges and Response
1. If, in the judgment of the Chief Academic Officer (or his/her designee), there exists just cause for discipline or dismissal, the Chief Academic Officer or designee will notify the faculty member in writing that the College is initiating just cause proceedings. The discipline or dismissal for just cause may be effective immediately, or prospective in nature depending upon the circumstances. The Chief Academic Officer or designee may direct that the faculty member be placed on paid or unpaid administrative leave pending the outcome of these proceedings.
  The written notice of just cause for discipline or dismissal shall include:
  1. Proposed recommendation for discipline or dismissal;
  2. The reasons for that recommendation;
  3. A statement of the charge(s) against the faculty member;
  4. A review of any prior remediation process or discipline, if any; and
  5. Names and positions of those administrators or officials proposing the disciplinary or dismissal action.
    The written notice will be 500 words or less in length, excluding supporting documentation.
    Before implementing discipline or discharge, the Chief Academic Officer or designee shall meet with the faculty member to discuss the notice of charge(s) in an effort to amicably resolve the matter and as a check against any mistakes or errors. If a meeting cannot be arranged, a certified letter containing the charges will be sent to the faculty member at his/her last known address.
    Unwillingness of the faculty member to meet with the Chief Academic Officer or designee in a timely manner or failure to accept the certified letter will not stop the process under this policy.
    If the faculty member elects not to appeal the charges, this policy will proceed directly to Section VII for review by the College President. If the Chief Academic Officer elects to dismiss the charges, progress in this policy is immediately halted by notifying the Senate President. If the Chief Academic Officer elects to dismiss the charges as groundless, all documents filed in accordance with Senate Policy 3.021 will be removed from the faculty member's official Human Resources personnel folder and destroyed. If the Chief Academic Officer elects to dismiss the charges but requires that the faculty member be counseled regarding the charges, the documents will not be removed from the Human Resources file.
2. Appealing the Charges
  Note: All discipline remains in effect while the charges are appealed.
  If the faculty member disagrees with the formal charge(s) or the penalty imposed (or proposed), the faculty member may challenge the formal charge(s) by filing a notice of appeal with the Senate President not more than ten days from receipt of the formal charge(s). If the faculty member decides not to appeal the charges, this policy will proceed directly to Section VII for review by the College President. The notice of appeal shall include, at a minimum, the following:
  1. Statement of the facts that the faculty member relies upon in opposition to the notice of charge(s).
  2. A discussion of mitigating circumstances, if any.
  3. Specific reference to Delta College policy(ies) and procedure(s) the faculty member believes have been violated (if any).
  4. A statement indicating the faculty member’s agreement to be fully and completely bound by the determinations resulting from these procedures.
  5. A designation of an advisor, if any, identifying an available faculty member to act with authorization and release to receive confidential information.
  6. Authorization and release for members of the Investigative Panel and the Appeal Panel to receive information and documents pertaining to this matter.
  7. A statement indicating the faculty member’s agreement to indemnify all members of the investigative and appeal panels from damages and other retaliatory action related to these just cause proceedings.
    The notice of appeal will be 750 words or less, excluding supporting documentation.
3. The Senate President will ensure compliance with III. A. and B. above by both parties. The above conditions are required for this policy to proceed; otherwise the charges and disciplinary action will remain in effect.
Investigative Panel
1. Within five days of receipt of the faculty member’s notice of appeal of formal charge(s), the Senate President shall convene an Investigative Panel. The Investigative Panel shall consist of the FEC Chairperson or designee from the FEC, the Human Resources Director or his/her designee and a third member mutually selected by the Human Resources Director or designee and FEC Chairperson or their designee(s) from the full time faculty. In the event the FEC Chairperson and the Human Resources Director or their designee(s) are unable to agree, the third member shall be selected by a lottery conducted by the Senate President from a list of six faculty members, three submitted by the FEC Chairperson, and three submitted by the identified Human Resources Director or their designees.
2. The Investigative Panel’s purpose is not to judge the merits of the charge(s) or the appeal. The Investigative Panel is a fact gathering body who will develop a record to be reviewed by the Appeal Panel. The Investigative Panel shall have the following authority:
  1. Receive written statement of the charge(s) and appeal from the faculty member.
  2. Review all written information and documentation relied upon to support the charge(s) or the faculty member’s appeal.
  3. The right to interview witnesses and take written or electronically recorded witness statements.
  4. The right to receive non-privileged College records that the Investigative Panel considers relevant, whether or not requested by either party.
  5. Disputes about relevance pertaining to any matter shall be determined by a majority vote of the Investigative Panel.
  6. Make determinations concerning credibility of any witness. Credibility determinations shall be decided by a majority vote of the Investigative Panel.
  7. If the investigative panel discovers new relevant information that may affect the original charges, the panel will recommend that the Chief Academic Officer or designee review the new information before proceeding further. Only the Chief Academic Officer or designee may modify the original charges and recommended discipline.
3. The Investigative Panel shall produce a written report attaching the documents and written statement it believes relevant of its findings not more than 20 days from the date it first convened. The Investigative Panel’s written report and attachments shall be submitted by certified mail to the faculty member at her/his last known address, Chief Academic Officer or designee, and the Senate President. The Investigative Panel may request additional time, if warranted and agreed to by a majority of the panel. The Senate President may adjust the timeline accordingly. All proceedings of the Investigative Panel, including its written report, shall remain confidential.
4. Upon receipt of the Investigative Panel’s written report, both the faculty member and the Chief Academic Officer or his/her designee will have ten days to submit a response of not more than 1,500 words, a copy of which shall be provided to the Senate President.
Appeal Panel
1. Within five days of receipt of the Investigative Panel’s written report and written response(s), if any (the “Record”), the Senate President or designee shall convene the Appeal Panel.
2. The Appeal Panel will consist of five members. Two will be faculty members selected by the FEC, and two members will be selected by the FEC from Academic Services or Student Services personnel holding the rank of Dean or above. The fifth member is an at-large faculty member unanimously agreed upon by the other four Appeal Panel members. In the event the four Appeal Panel members are unable to agree, the fifth member shall be selected by a lottery conducted by the Senate President from a list of six Faculty members, three submitted by the FEC members, and three submitted by the non-faculty members. Persons with any significant connection to the case or other conflicts of interest will not participate in the Appeal Panel. All matters shall be decided by a simple majority vote of the Appeal Panel, including the selection of a chairperson from the faculty membership of the Appeal Panel. Members of the Investigative Panel may not serve as members of the Appeal Panel.
3. The Appeal Panel will:
  1. Consider the Record as a whole reported by the Investigative Panel. However, the Appeal Panel may call on the Investigative Panel to answer questions and explain their findings.
  2. Conduct a hearing at which the Chief Academic Officer or designee and the faculty member shall present their respective positions before the Appeal Panel. Both parties are expected to be present throughout the hearing. Failure of either party to attend the hearing will not stop the process under this policy. The Chairperson of the Appeal Panel shall control the order of presentation and examination of the parties’ positions.
  3. Determine whether there is just cause to support the charge(s) and the penalty. The Record must establish by a preponderance of the facts contained therein, that there is sufficient support for the charge(s) and the penalty.
4. The Appeal Panel shall, within five days of the close of the Appeal Panel process, issue a written recommendation to the College President. The Appeal Panel will summarize its recommendation which shall contain a detailed statement of its reasoning. At a minimum, the Appeal Panel shall address, in detail, the following questions:
  1. Did the College give forewarning or foreknowledge (i.e., published rule, notice or written warning, etc.) to the faculty member of the possible or probable consequences of the Faculty member’s disciplinary conduct?
  2. Was the College’s rule or administrative directive reasonably related to (a) the orderly, efficient, and safe operation of the College’s business; and (b) the performance that the College might properly expect of the faculty member?
  3. Did the Chief Academic Officer or designee, before administering the discipline to a faculty member, make an effort to discover whether the faculty member did in fact engage in the alleged misconduct?
  4. Was the Investigative Panel’s investigation conducted fairly and objectively?
  5. Did the Investigative Panel obtain a preponderance of the evidence that the faculty member did indeed engage in the conduct or misconduct as charged by the Chief Academic Officer or designee?
  6. Has the Chief Academic Officer or designee used applicable rules, procedures, orders, and penalties fairly and without discrimination?
  7. Was the degree of discipline administered by the Chief Academic Officer or designee reasonably related to the charge(s)?
5. The Appeal Panel’s recommendation, along with the Record, shall be submitted to the President, recommending that the President take one of the following actions:
  1. Sustain the charge(s) and penalty without modification;
  2. Dismiss the charge(s) and penalty along with recommended remedial action if any, and if it finds the charges to be baseless, may also recommend that all charges filed in accordance with Senate Policy 3.021 be removed from the faculty member's Human Resources personnel folder and Academic and Division Office files and destroyed; or
  3. Reduce the charge(s) and/or penalty along with recommended remedial action, if any.
Written Reply
The Appeal Panel’s written recommendation to the College President shall be provided to the faculty member, the Chief Academic Officer or designee, and the College President. Within five days of receipt of the Appeal Panel’s written recommendation, the faculty member shall have the right to submit a written reply, not to exceed 1,500 words, to the Appeal Panel’s recommendation. The faculty member’s written reply, if any, shall become part of the Record.
COLLEGE PRESIDENT REVIEW
The College President will review the written recommendation of the Investigative Panel and the Record to ensure that fairness and due process has been afforded the faculty member. If, in the opinion of the College President, there has been a lack of fairness or due process, the College President may take whatever remedial steps deemed necessary, including, but not limited to, remanding the matter back to the Chief Academic Officer or designee, the Investigative Panel, or the Appeal Panel, with specific instructions for further review or consideration.
The College President will either agree or disagree with the recommendation of the Appeal Panel, in writing, along with detailed reasoning, to be provided to the faculty member by certified mail at his or her last known address within 15 calendar days from the date the President receives the written recommendation from the Appeal Panel. The College President retains the right to dismiss, uphold, or modify the original charge(s) or penalty, but under no circumstances shall the President increase the charge(s) or penalty. If the College President elects to dismiss the charges as baseless, then all charges filed in accordance with 3.021 will be removed from the faculty member's Human Resources personnel folder and Academic and Division Office files and destroyed. If the President elects to dismiss the charges but requires that the faculty member be counseled regarding the charges, the documents will not be removed from the Human Resources file.
In case of termination where pay and benefits have continued throughout the review process, all salary, benefits and college privileges will cease as stated within the detailed reasoning by the College President, not to be less than two weeks’ severance.

Board Action 5262 – December 11, 2018
Board Action 4907 – December 13, 2011
Board Action 4835 – Division of Policy 3.020 into three policies – August 10, 2010