PART 1: PURPOSE

To establish policy, rules and procedures by which allegations of serious faculty misconduct, or inability to perform essential functions of the job, may be addressed equitably, expeditiously and without violating the principles of academic freedom or due process.

PART 2: SCOPE

This rule applies when serious misconduct, or inability to perform essential functions of the job, is reasonably suspected of any tenured, tenure track, or regular, non-tenure track faculty within the NMSU System.

1. This rule does not apply to situations involving unsatisfactory job performance covered by other policies regarding the quality of teaching/advising, research/scholarship or outreach/ extension or service. (See rules governing Faculty Performance Evaluation, Promotion and Tenure and Post-tenure Review)
2. This rule does not apply to situations involving the voluntary or involuntary retreat to a faculty position from an appointment as academic administrator, because such appointments are within the discretion of an executive administrator.
3. This rule does not apply to situations involving non-renewal of the annual faculty contract.

PART 3: RULE ADMINISTRATOR

The Office of the provost and chief academic officer, jointly with the Office of Human Resource Services, administers these rules and procedures.

PART 4: DEFINITIONS AND ROLES

1. “Clear and Convincing Evidence”: Clear and convincing evidence means evidence that makes the fact to be proven highly probable or reasonably certain. To prove a fact by clear and convincing evidence is evidence stronger than a “preponderance” and yet less than “beyond a reasonable doubt;” for evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true. (See Also Part 11 subsection C.)
2. “Day”: When a time limit refers to “day”, it refers to business rather than calendar days (Monday through Friday), and excludes official university holidays.
3. “Dean”: When the rule refers to dean, it will include the equivalent ranks to dean, for academic units other than a college or library. It also will mean the designee serving in lieu of the dean, who may be designated by the Faculty Senate chair and assistant vice president for human resources, in consultation with the University General Counsel, due to a conflict of interest on the part of the dean or dean equivalent. The dean serves as the informal pre-determination hearing officer. (See Part 12, below).
4. “Investigative Administrator”: When the rule refers to the “investigative administrator”, it refers to the individual who performs or coordinates the confidential investigation into the allegations against the faculty member, including issuance of the investigative report. (See Part 8 below). The investigative administrator also consults with the Office of Human Resource Services and/or University General Counsel regarding the appropriate level of corrective action warranted, if any; prepares the notice of proposed corrective action; and presents the matter to the pre-determination officer (the dean). (See Parts 8-11 below.) The investigative administrator will usually be the immediate supervisor, or academic department head. It may also mean someone designated to serve in lieu of the immediate supervisor, in the event of a conflict of interest. (i.e. if the investigative administrator is implicated in the alleged misconduct.) In cases involving alleged discrimination in violation of federal or state law or university policy, rules or procedures, it means a representative from the Office of Institutional Equity. In cases involving alleged embezzlement or other white collar type criminal activity, the investigation may be conducted by law enforcement, the Office of Internal Audit or other expert in the field. In these instances, the investigative administrator will coordinate with the involved supervisor, and HRS in order to determine the facts and the appropriate corrective or disciplinary action.
5. “Preponderance of the Evidence”: Preponderance of the evidence means the greater weight of the evidence. To prove a fact by the greater weight of the evidence means one must be persuaded that what is sought to be proved is more probably true than not true. Evenly balanced evidence is not sufficient. (See Also Part 11 subsection C.)

PART 5: OVERVIEW OF RULE

This section lists generally the steps which shall guide faculty and administration in the rare instance that serious misconduct, or inability to perform essential job functions, is reasonably suspected of a faculty member. More detail regarding each process is provided throughout this rule.

1. Administrative Leave. [ no time frame indicated and will vary] (See Part 7)
2. Internal Investigation. [no time frame indicated and will vary based on complexity] (See Part 8)
3. Assessment of Appropriate Corrective Action. [no time frame indicated and will vary] (See Part 9)
4. Assembly of Evidence and Notice of Intended Corrective Action. [no time frame indicated] (See Part 10)
5. Pre-Determination Hearing (Decision by Dean). [20 days or less from receipt of request for hearing, unless extension] (See Part 13)
6. Post-Determination Appeal Hearing (Decision by the provost and chief academic officer). [45 days or less from receipt of Notice of Appeal, unless time extension] (See Part 14)
7. Final Review (Decision by President). [20 days or less from receipt of Request for Final Review, unless time extension] (See Part 15) A flow chart indicating the steps in the investigative, corrective action and appeal processes involved in the case of serious misconduct or inability to perform essential job functions alleged against a faculty member may be viewed at ARP Appendix 10.50-A.

PART 6: ALTERNATIVE DISPUTE RESOLUTION

At any stage in the processes described herein, if mutually agreed to between the parties, the disputed matter may be stayed as the parties attempt to resolve the dispute through an alternate method of dispute resolution, including but not limited to the following methods: mediation, settlement facilitation, or other negotiated resolution outside of the formal hearing processes provided for herein.

PART 7: ADMINISTRATIVE LEAVE

When a faculty member is reasonably suspected or otherwise accused of serious misconduct constituting just cause under this rule, the faculty member may be placed on paid administrative leave pending a confidential investigation, in accordance with the following protocol:

1. These decisions will be made on a case by case basis by the department head or equivalent supervisor, in conjunction with the Office of Human Resource Services, and based upon the facts alleged in each matter, including the potential risk of harm to students, others or the institution.
2. Approval from the assistant vice president of human resource services or designee is required to place any faculty member on paid administrative leave or to relocate, or to reassign job duties, pending the investigation. The dean will be notified about the pendency of the internal investigation, but not about the factual details.
3. In lieu of paid administrative leave, a faculty member may be temporarily relocated to an alternate work environment or be assigned to perform alternate job duties, provided such temporary job modification will not in any way impede the investigation.
4. A faculty member placed on paid administrative leave shall remain available for communications from NMSU, and otherwise be ready to report to work upon request. If the faculty member has a need to be absent during a period of administrative leave, the faculty member shall obtain the appropriate approval.

PART 8: CONFIDENTIAL INVESTIGATION

The allegations, and any defense raised by the faculty member in response to the allegations, shall be investigated fully and fairly, within a reasonable amount of time, and as confidentially as possible; based upon the circumstances involved in each matter.

1. The investigative administrator shall consult with the assistant vice president of human resources or designee and/or the university general counsel for guidance and support relating to the performance of the internal investigation.
2. The faculty member accused shall be provided notice of the charges at the appropriate time during the investigation, which may be when the investigation begins, or may be later, depending upon the nature of the allegations. The faculty member shall be given an opportunity to respond to the charges during the investigation process.
3. The investigation shall be documented with factual findings and supporting evidence. The evidence may consist of witness statements or summaries, documents, audio or video recordings or photographs, or other exhibits. The investigative report, including supporting documentation or other evidence, shall be delivered to the assistant vice president of human resource services. The investigative administrator shall retain the investigative work papers, investigative report and supporting documentation or other evidence in a confidential and secure location.
4. The investigative administrator shall confer with the assistant vice president for human resource services and/or university general counsel to decide whether or not the findings warrant corrective administrative action.
5. As soon as practicable, the charged faculty member shall be informed generally regarding the results of the investigation.
6. If the faculty member is exonerated by the investigation, then no documentation referencing the investigation shall remain in the official personnel file, unless requested by the faculty member.
7. If corrective action is going to be pursued, the faculty member will be provided a copy of the investigative report and access to the supporting documents at the time that the corrective action is formally proposed.
8. In order to protect the positions and reputations of those persons who, in good faith, report reasonably suspected misconduct, the university prohibits retaliation in any form to be taken against the reporter or any person who cooperates in the investigative process. A complaint of suspected retaliation will also be cause for the initiation of a separate internal investigation to be conducted in coordination with the Office of Human Resource Services, and if substantiated, will be grounds for disciplinary action, up to and including termination of employment.
9. If the investigative report reflects that the alleged misconduct was not substantiated, the university will make efforts to restore the reputation of the faculty member, to the extent feasible and desired by the faculty member. Additionally, and depending upon the circumstances, the university may initiate a separate internal investigation in the event the investigative report indicates that the initial report of suspected misconduct or any testimony given as part of the internal investigation may have been intentionally falsified. If deliberate falsification of such a complaint or testimony is substantiated, it will be grounds for disciplinary action against the false reporter, up to and including termination of employment.

PART 9: JUST CAUSE REQUIRED

Just Cause, capable of being proven by the standard of proof set forth at Part 11 subsection C, is required before suspension without pay, reduction in salary, or involuntary dismissal may be imposed. Just cause includes dishonest behavior; gross or habitual neglect of professional responsibilities; willful violation of NMSU policy, rule or procedures; use of any improper influence to secure a promotion or privileges for individual advantage; or any other serious misconduct causing or creating the potential for harm to person, property or the institution. Just Cause may also be unrelated to any misconduct on the part of faculty, and could include a loss of licensure and/or clinical admitting privileges required for the performance of one’s academic duties; or the medical inability to perform essential functions of the job.

PART 10: ADMINISTRATIVE OR CORRECTIVE ACTION

Corrective or other administrative action may be taken for serious misconduct or inability to perform the essential functions of one’s job, if substantiated by the applicable standard of proof through the investigative fact finding process.

1. The types of administrative action anticipated by this rule include one or more of the following: written warning, mandatory attendance at training, suspension without pay, reduction in salary, and involuntary dismissal.
2. The range of corrective action which may be imposed for misconduct is not intended to require progressive discipline; rather, it is intended to allow the severity of the corrective action to match the seriousness of the policy, rule or procedural violation or other misconduct. The corrective action, if any, to be imposed will vary depending upon the severity of the misconduct substantiated by the investigative findings.
3. The investigative administrator and the assistant vice president of human resource services shall coordinate regarding the appropriate level of corrective action or other administrative action, and if it does not warrant suspension without pay, reduction in pay, or involuntary dismissal, shall decide whether other corrective or administrative action is appropriate.
4. If suspension without pay, reduction in salary or involuntary dismissal is supported by the investigative report and recommended by the investigative administrator, the due process hearing requirements outlined in the remainder of this rule shall apply. See Also Appendix ARP 10.50-A.

PART 11: GENERAL DESCRIPTION OF DUE PROCESS

A recommendation to dismiss from employment or to reduce salary attributable to regular faculty employment are serious corrective actions implicating one’s property rights, which is why just cause and due process are required before such action may be taken.

1. Due process requires fair and timely hearing processes, before an impartial hearing official or body. The faculty member charged with misconduct and facing serious disciplinary action is entitled to a predetermination hearing, at which the relevant facts are presented by the parties, and determined by a hearing officer to be accurate prior to proceeding with the proposed corrective action. This ensures that the faculty member has had an adequate opportunity to present a defense to the claims and the evidence; it also ensures that the decision makers have an accurate understanding of the facts underlying the recommendation.
2. The faculty member also has the right to a post-determination appeal to the provost and chief academic officer, as well as the right to request a final review by the President.
3. At the pre-determination hearing and any subsequent appeal, the burden of proving just cause by the applicable standard of proof is on NMSU. The standard of proof shall be clear and convincing evidence for all infractions, except for disciplinary action proposed for discrimination proscribed by federal and state law, which matters are investigated by the university’s Office of Institutional Equity; the burden of proof when discrimination constitutes the grounds for which the disciplinary action is being taken shall be preponderance of the evidence. (See Part 4 subsections D and E)

PART 12: TIME DEADLINES AND EXTENSIONS

The pre-determination, appeal and final review processes will be conducted as expeditiously as possible.

1. At the request from a party, a one-time extension of the time deadline may be granted, after notice to the other party and consideration of that party’s position relative to the request.
2. If the request for the time extension is from a hearing Faculty Appeals Board member, the chair of Faculty Senate may grant a reasonable extension, with notice to all parties.
3. A second or subsequent request for time extension from any party or from a Faculty Appeals Board member will only be granted in exceptional cases, after consideration of the basis for the request and the respective positions of the parties. The Faculty Appeals Board or Faculty Senate chair may deny a request for extension, in the best interest of the institution, even if no party opposes it.

PART 13: PRE-DETERMINATION PROCESS

[25 days or less from date of issuance of notice letter or memo, unless time extension granted]

1. Notice of Proposed Administrative Action. The investigative administrator or other uninvolved supervisor shall issue a letter or memo to the faculty member notifying the grounds for the recommended corrective action, and attach a copy of the investigative report. If for some reason, there is not a document entitled, “investigative report”, the charges against the faculty member and the evidence substantiating the charges shall be provided. Guidelines for investigative reports are available in the Office of Human Resource Service or the University General Counsel. The notice letter or memo shall explain the faculty member’s right to attend an informal pre-determination hearing, and be delivered by hand-delivery or by certified U.S. mail, return receipt requested.
2. Right to Attend Pre-Determination Hearing. [5 days for faculty to confirm attendance at hearing] A predetermination hearing will be convened by the dean or Dean’s Advisory Committee, as appropriate (See C.1 below), in order to review the recommended action together with the evidence, and to hear the faculty member’s position in response thereto. Within five (5) days of the documented receipt of the written notice of proposed administrative action, the faculty member shall notify the dean’s office in writing whether or not the faculty member will attend the hearing and/or be represented by legal counsel. The faculty member shall also indicate whether or not the use of the Dean’s Advisory Committee is requested. (See C.1 below) If the faculty member chooses to not attend the informal fact finding hearing, a determination will be rendered in the faculty member’s absence.
3. Informal Pre-Determination Hearing: [15 days or less] An informal fact finding hearing shall be heard by either the dean or by the Dean’s Advisory Committee, within fifteen (15) days from the date of the notice letter or memo, as follows:
   1. Option to Utilize a Dean’s Advisory Committee: The use of the Dean’s Advisory Committee may be requested by the faculty member whose conduct is subject of the proceedings, or initiated at the discretion of the dean. The Dean’s Advisory Committee shall consist of three members of Faculty Senate selected by the Faculty Senate chair. If utilized, it will assist the dean by hearing the evidence and the parties’ respective positions, and by rendering findings of fact and recommendations.
      1. If utilized, the Dean’s Advisory Committee shall hold the hearing no later than fifteen (15) days from the date of the notice letter or memo to the faculty member.
      2. If utilized, the Dean’s Advisory Committee shall render written findings and recommendations, with the record, to the dean or designee and to the faculty member within five (5) days from the hearing;
   2. Hearing by Dean: If neither the dean nor the faculty member elects to utilize the Dean’s Advisory Committee, the dean shall conduct the pre-determination hearing within fifteen (15) days from the date of the notice letter or memo.
   3. Legal Counsel: If the faculty member is represented by legal counsel, the university may also utilize legal counsel. The role of the attorneys during the pre-determination hearing is not to actively participate or present, but to advise and provide support.
   4. Conduct of Pre-Determination Hearing: At the pre-determination hearing, the faculty member will be given the opportunity to respond to the charges and to the evidence, including the submission of documentary and other evidence, such as any witness statements collected. In the event the faculty members informs the dean in advance of the hearing that an NMSU employee is a necessary witness and will not cooperate in providing a statement, NMSU will make arrangements for the witness to be available either in person or through other telephonic or technological means.
4. Issuance of Determination: [10 days or less] Within ten (10) days from the pre-determination hearing or from receipt of the Dean’s Advisory Committee’s findings and recommendations, as appropriate, the dean shall issue a determination to the parties, with a copy to the assistant vice president of human resource services and to the university’s general counsel. The dean may uphold, modify or reject the proposed administrative action.
5. Notification of Right to Appeal. The determination shall notify the faculty member of the right to appeal. If the faculty member does not appeal, a copy of the determination shall be sent to the Office of the provost and chief academic officer, as well as filed in the faculty member’s official personnel file.

PART 14: POST-DETERMINATION APPEAL

The aggrieved faculty member may appeal the determination of the dean in accordance with the policies and procedures below.

1. Initiation of Appeal [5 days]
   To appeal, the faculty member (“appellant”) shall submit a written notice of appeal to the Office of the provost and chief academic officer, within five (5) days from the receipt of the dean’s determination. The appellant shall also send a copy of the notice of appeal to the dean and to the assistant vice president of human resource services.
2. Notice to Convene Faculty Appeals Board [3 days]
   Within three (3) days, the provost and chief academic officer shall notify the Faculty Senate chair to convene the Faculty Appeals Board.
3. Faculty Appeals Board
   1. Composition: The Faculty Appeals Board is convened as needed; its membership for any given appeal shall be determined based on the date the Notice of Appeal is received by the Office of the provost and chief academic officer. The Faculty Appeals Board shall consist of each senator with the longest continuous Faculty Senate service from each Faculty Senate voting unit. If a senator is from the same department or other academic unit as the appellant or is otherwise unable to serve (See subsection D.1 below), the senator with the next longest Faculty Senate service from the same voting unit shall be selected by the Faculty Senate chair to serve. If two senators have identical length of service, the senator with the longest service at the university will serve; if there still remains a tie, lots shall be drawn.
   2. Quorum: All Faculty Appeals Board members are required to attend each appeal hearing.
   3. Chair: The Faculty Appeals Board will elect one of its members to serve as chair on a hearing by hearing basis, after notification by the Faculty Senate chair to the appropriate senators that the Faculty Appeals Board needs to convene.
   4. Administrative Support: The Faculty Senate chair and the assistant vice president of human resource services shall coordinate to provide the Faculty Appeals Board with the necessary clerical, administrative and/or technical support it requires. They may also provide guidance to all parties regarding applicable time deadlines and other procedural issues that may arise.
4. Conduct of Appeal Hearing [25 days]
   Within twenty five days (25) from the date of the notice of appeal, the Faculty Appeals Board shall schedule a hearing on the matter of the faculty member’s appeal.
   1. Fair and Impartial Hearing/Avoidance of Conflicts of Interest: Faculty members are entitled to a fair and impartial hearing. This includes the prompt resolution of actual and perceived conflicts of interest.
      1. Disclosure of Potential Conflicts of Interest:
         1. The members of the Faculty Appeals Board shall disclose any potential or actual conflict of interest immediately, or as soon as practicable, in order that the issue may be fully resolved prior to the appeal hearing.
         2. A party shall also raise the issue of a perceived conflict of interest as soon as the conflict is known.
      2. Resolution of Disclosed or Perceived Conflicts of Interest:
         1. In the event a conflict of interest issue is raised, verbally or in writing by anyone, the Faculty Appeals Board chair shall give notice of the potential conflict to the parties and proceed to resolve the issue as expeditiously as possible.
         2. If a challenged Faculty Appeals Board member agrees that the conflict is sufficient to render the member unable to participate in a fair and impartial manner, the member shall decline to participate and an alternate member will be selected by the Faculty Senate chair, in accordance with Part 13 subsection C.1 above.
         3. If the challenged Faculty Appeals Board member disagrees that there is a conflict sufficient to affect impartiality, the matter will be decided by the Faculty Senate chair.
         4. Each party may provide their position on the issue, and to comment on the position of the other party.
         5. If a Faculty Appeals Board member is excused based on a finding of conflict of interest, an alternate member will be selected by the Faculty Senate chair, in accordance with Part 13 subsection C.1 above.
      3. Guidelines for Determining Conflicts of Interest:
         1. Under no circumstances will a Faculty Appeals Board member participate in a hearing convened to hear an appeal by a person with whom the member has a familial, personal or close professional relationship. A Faculty Appeals Board member shall not hear a matter involving faculty from their own NMSU entity.
         2. If one or more of the witnesses has a close relationship with one of the Faculty Appeals Board members, disqualification from service shall not be automatic, but shall be decided based upon the specific facts of each case.
         3. If the appellant or a witness has had prior contact with either the assigned mediator or a hearing panel member, disqualification from service shall not be automatic, but shall be decided based upon the specific facts of each case.
   2. Scope of Hearing and Burden of Proof: The hearing will be limited to the issues relevant to those identified in the notice of proposed corrective action, and the university bears the burden of showing that the action taken was supported by just cause.
   3. Closed Hearing: The hearing will be closed to the public.
   4. Hearing Record: The hearing will be electronically or digitally recorded. NMSU will not provide transcripts of the hearing; upon request and payment of a reasonable recording fee, the university will provide an audio, digital or other form of recording, as appropriate. (See also Part 15 below)
   5. Informal Nature of Hearing: The hearings of the Faculty Appeals Board are not be bound by the rules of civil procedure, and any evidence of probative value in determining the issues involved may be admitted. Every possible effort will be made to obtain the most reliable evidence available.
   6. Legal Counsel: Each party may be represented by legal counsel in their preparations for the hearing and appearance before the Faculty Appeals Board.
   7. Notice of Hearing: The chair will notify the appellant, respondent NMSU department and other appropriate persons in writing the date, time, and location of the hearing. The hearing will be scheduled within twenty five (25) days from the date of the notice of appeal.
   8. Pre-Hearing Exchange of Documents [5 days prior to hearing]: At least five days prior to the hearing, each party shall submit a copy of their position statement and supporting evidence to the assistant vice president for human resource services, and to the other party via secure electronic delivery, or other confidential means. The assistant vice president for human resource services shall ensure that each member of the Faculty Appeals Board receives a copy at least three (3) days prior to the hearing.
   9. Exclusion of Witnesses: Witnesses shall be excluded from the hearing except to provide their testimony. This rule does not apply to parties, who may also be witnesses.
   10. Fair and Orderly Hearing: The chair will assure that all parties have an adequate opportunity to present relevant evidence to the Faculty Appeals Board. Each party may call witnesses in support of their respective position. The Faculty Appeals Board may allocate reasonable time limits for each party. Each party will be invited to make an introductory opening statement, to present witness testimony and documentary evidence, and if time allows, to provide a summation of the evidence tendered. Each party shall be permitted an opportunity to cross examine the witnesses called by the opposing party.
   11. Closure of Hearing: After the parties have concluded their presentations, the Chair will formally close the appeal hearing, and excuse the parties and witnesses.
   12. Deliberations by Faculty Appeals Board: The Faculty Appeals Board will deliberate on the evidence received at the hearing; depending upon the time the hearing is concluded, the Faculty Appeals Board may recess and continue their deliberations to another date and time.
   13. Issuance of Findings and Recommendations [15 days or less]: Within 15 days from the close of the appeal hearing, the chair shall submit the Faculty Appeals Board’s collective findings and recommended conclusions on the issue of whether or not the action taken was supported by just cause, including the vote count and any dissenting opinion, along with the appeal hearing record. The Faculty Appeals Board shall not distribute its findings and recommendations, or otherwise disseminate any information from the confidential personnel hearing, to any person or office other than the Office of the provost and chief academic officer.
5. Decision by Provost and Chief Academic Officer [10 days or less]
   The provost and chief academic officer shall issue a decision to the parties within ten (10) days from receipt of the Faculty Appeals Board’s findings and recommendations and the record.
   1. In the event of a conflict of interest or other disqualifying event on the part of the provost and chief academic officer, university general counsel will select a designee to decide the appeal, potentially including an outside professional.
   2. The provost and chief academic officer decision shall notify the faculty member of the right to seek a final review by the President. A copy of the Faculty Appeals Board’s findings and recommendations shall be attached to the decision.
   3. If no final review is sought, a copy of the provost and chief academic officer decision will be filed in the faculty member’s official personnel file.

PART 15: FINAL REVIEW BY President

The aggrieved faculty member (“appellant”) may appeal the decision of the provost and chief academic officer in accordance with the following:

1. Request for Final Review: [5 days] Final review shall be initiated by filing a written request for with the Office of the President within five (5) days from receipt of the provost and chief academic officer decision. The appellant shall also send a copy of the request for final review to the executive vice president and to the assistant vice president of human resource services.
2. Designee in Event of Unavailability: In the event of a conflict of interest or other disqualifying event on the part of the President, the university’s general counsel will select a designee to render the final review, potentially including an outside professional.
3. Review: [20 days or less] The President shall review the record and issue a final decision on behalf of the university within twenty (20) days from receipt of the request for final review and receipt of the record. In the event that the President wishes to hear from any party about the evidence in the record, all parties shall be present.
4. Issuance of Final Decision: The President’s decision shall be delivered to the parties and to the Faculty Appeals Board’s chair, to the assistant vice president for human resource services and to the university general counsel. The decision of the President shall be final. A copy of the President’s decision shall be filed in the faculty member’s official personnel file.

PART 16: MAINTENANCE AND STORAGE OF ALL HEARING RECORDS

The pre-determination, appeal and final review hearing records consisting of all official hearing correspondence, position statements and evidence submitted by the parties, and electronic recordings will be filed in the Office of Human Resource Services. A copy of the final decision in each contested personnel matter shall also be filed and maintained permanently in the Office of the provost and chief academic officer.