2.2.090 Dismissal of Tenured Faculty for Cause

The award of tenure to faculty is essential to academic freedom and the concept of university self-governance. The dismissal of a tenured employee should therefore be undertaken only for just cause as defined in the policies of the university and the laws of the state of Missouri and then only after appropriate procedural safeguards, as set forth in the following document, have been met. These procedures shall not be construed to deny tenured employees their rights as citizens to legal due process under the laws of the state of Missouri and the United States.

A. As used herein, the faculty member denotes the faculty member being considered for termination or any counsel representing him or her.

B. As used herein, the provost refers to the actual provost or to any representative designated to present the administration's case for dismissal or sanctions against the faculty member.

C. As used herein, calendar days includes weekends and summer school but excludes any weekdays on which university offices are closed.

D. As used herein, clear and convincing evidence is defined as that evidence which is clear, explicit and unequivocal, and evidence which is unmistakable and free from serious or substantial doubt. It is evidence which is stronger than either "greater weight of the evidence" or "a preponderance of the evidence."

A. Tenured faculty members shall be dismissed only for just cause and only after they are afforded due process. Dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights of American citizens. Because freedom of speech is critical to academia, the free expression of professional, political, cultural, or social ideas or views shall not be considered just cause for dismissal. Nevertheless, courts have held, and university faculty and administrators recognize, that freedom of speech is not absolute; however, where proceedings for dismissal for just cause are based on utterances or expressions made by a faculty member, it must be manifest that such utterances or expressions would constitute just cause as defined in Section III.B.

B. A dismissal for cause proceeding should be undertaken only as a last resort and only for the most serious causes and for causes directly related to the faculty member's professional performance. The burden of proving just cause for dismissal of a University of Central Missouri tenured faculty member shall rest on the university and must be based upon a finding of clear and convincing evidence of those grounds set forth in Section 174.150, RSMo, which include but are not limited to the following:

1. incompetency
   
   
2. substantial and manifest neglect or refusal to perform institutional duties as defined by the profession and/or the job description
   
   
3. personal conduct (such as professional dishonesty, or discriminatory behavior violating applicable law and/or explicit university policies, or the violation of widely recognized professional ethics) which substantially impairs the individual's performance of his or her institutional responsibilities
   
   

C. If at any stage of the dismissal for just cause proceedings, the faculty member explicitly admits in writing that his or her conduct constitutes one of the causes in Section III.B., he or she thereby agrees that just cause for dismissal exists and waives further adjudication of the case. No other admissions by the faculty member shall be construed as a voluntary agreement or intended confession that just cause exists or as waiving further adjudication of the case.

A. If the faculty member elects to waive a hearing, then the procedures as outlined in Section V.D. will apply; otherwise, within seven days of the faculty member's response as outlined in Subsection IV.D.(4), the Office of the Provost will notify the faculty member of the date, time and place of a formal hearing before an ad hoc faculty hearing committee. This notice shall be made in the same manner as indicated in Subsection IV.B.(1). This hearing shall begin within a reasonable time but not fewer than 10 or more than 30 calendar days after the receipt of the notice. (Note: if the hearing is to be in 10 days, then it will be necessary that the list described in Section V.C. be forwarded at this time). The ad hoc committee shall be presented with the written charges against the faculty member (mentioned in Subsection IV.B.(1) above) and will confine its hearing to those charges and to matters and evidence relevant to those charges. The ad hoc committee will be constituted as follows: the provost and the faculty member will each name three faculty (two designated hearing members and one alternate) from the full-time faculty of the university; the six faculty thus named will confer with one another and elect a seventh member (who will serve as chair) from the full-time faculty of the university; full-time faculty are defined as those who teach or serve as professional librarians at least 50 percent of a full-time assignment during an academic year. All seven members will attend meetings; the alternates will not participate unless called on to replace the designated members. The committee chair and two each of the committee members designated by the provost and by the faculty member must participate in the final vote on the charges against the faculty member, and all who vote must be present at the entire hearing. If for any reason (such as illness or other emergency which might arise should the hearing extend over several days) the chair or more than one designated member in each group of three should be unable to attend all hearing meetings, the hearing shall either be suspended until absentees can return or those absent shall be replaced by the process set forth earlier in this section, and the hearing shall begin again from the start.

B. At any time prior to the date scheduled for the hearing, either the faculty member or the provost may request a continuance of the hearing in writing, and the chair of the ad hoc committee has the discretionary authority to continue the hearing to a time within the 10-to-30 day time limit set in the previous section. The faculty member may request a continuance beyond the 10-to-30 day time limit, but such an extension of the time limit shall require both the approval of the committee and the agreement of the provost. Prior to the hearing, the committee may, with the consent of the parties concerned, hold joint pre-hearing meetings with the parties in order to (1) simplify the issues, (2) effect stipulations of facts, (3) provide for the exchange of documentary or other information and (4) achieve such other appropriate pre-hearing objectives as will make the hearing fair, effective and expeditious.

C. Not less than 10 calendar days before the start of the hearing, the faculty member will receive from the provost a list of all witnesses and evidence to be introduced in support of the university's case against the faculty member. The faculty member may also request from the university at this time production for inspection and/or copying, any material that may be relevant to his or her case.

D. If the faculty member waives a hearing but denies the charges or asserts that the charges do not support a finding of just cause, the ad hoc committee will evaluate all available evidence relevant to the provost's written charges and rest its recommendations upon evidence in the record.

E. If the faculty member has elected that the hearing be private and confidential, then except for simple announcements as may be required about such matters as the time and place of the hearing, all parties will avoid public statements and publicity about the case until all stages of the proceedings, including review by the Board of Governors, have been completed. The ad hoc committee shall have the authority to enforce this provision by means of sanctions to include but not be limited to disqualifying witnesses of either party or other evidence, dismissing the charges, or filing a complaint against the faculty member under Subsection III.B.(3).

F. At the request of either party or the ad hoc committee, one designated observer will be permitted to attend. During all stages of the proceedings where the faculty member is present, he or she will be permitted to have an academic advisor and/or counsel of his or her choice at the faculty member's expense. As implied in Section II.B, the provost may also be represented by counsel.

G. A verbatim record of the hearing will be taken, and a printed copy will be made available to the faculty member without cost, at the faculty member's request. A copy of this record and all supporting materials, statements, and documentary evidence presented in the hearing will be retained by the university for five years from the date of the final disposition of the case.

H. The faculty member will be afforded an opportunity to obtain necessary witnesses and documentary or other evidence. The administration will cooperate with the ad hoc committee in securing witnesses and making available documentary and other evidence. The faculty member and the provost will have the right to confront and cross-examine all witnesses either in their own persons or through their attorneys, but cross-examination by both the principals and their attorneys will not be allowed. Members of the UCM community have a duty to testify at a dismissal hearing if they are called to give evidence relevant to the charges, and the ad hoc committee will make every effort to persuade witnesses to testify and be cross-examined. If a witness allegedly having information relevant to the university's case cannot or will not appear as a witness, his or her information will not be considered by the ad hoc committee in making its final determination. For the purposes of the hearing, any individual or individuals who made complaint(s) which resulted in the bringing of the charges against the faculty member shall be considered witnesses. Failure on their part to appear as witnesses will render inadmissible any accusations or other statements, written or oral, that they may have individually made against the faculty member provided, however, that in exceptional circumstances and by agreement of both parties and with the approval of the committee as to any one or more witnesses, testimony in absentia given via deposition, sworn interrogatories, affidavit, telephone, teleconference or other mutually acceptable media, may be received into evidence and considered by the committee. In the hearing of charges of incompetence, the testimony will include that of qualified faculty members in the faculty member's area from Central Missouri and/or other institutions of higher education.

I. Neither the ad hoc committee nor the parties will be bound by strict legal rules of evidence, and the committee may admit any evidence which is of probative value in determining the issues involved. The findings of fact and decision will be based solely on the hearing record.

 

A. The chair shall preside at the hearing, call the hearing to order, call the roll of the ad hoc committee in attendance, ascertain the presence or absence of the parties, read the charge and response, verify the notice of the charge to the faculty member, report any continuances requested or granted, establish the presence of any advisor or counselor of either party, call to the attention of the parties any special or extraordinary procedures to be employed during the hearing, permit the provost and the faculty member to suggest or object to procedures and swear in the witnesses.

B. The provost or his or her designated representative (see Section II.B.) shall make opening remarks outlining the general nature of the case. The faculty member or his or her advisor may also make an opening statement to the committee about the charge(s), either at this time or at the conclusion of the provost's presentation of the evidence as the faculty member chooses. Such remarks shall not be considered as evidence. The provost and/or faculty member may give evidence, but only if they testify as witnesses.

C. The university's witnesses are to be called and identified and evidence or written statements or reports introduced as appropriate. The committee may question witnesses or examine evidence at the conclusion of the provost's presentation of each witness or of the evidence. The faculty member or his or her representative may question the witnesses or examine evidence.

D. The faculty member's witnesses are to be called and identified and evidence or written statements or reports introduced as appropriate. The ad hoc committee may question witnesses or examine evidence at the conclusion of the faculty member's presentation of each witness or of the evidence. The provost or his or her representative may then question the faculty member or witnesses accordingly. The committee shall permit the provost or the faculty member to offer any matter in rebuttal of the other's presentation.

E. The ad hoc committee shall have the right to do the following:

1. determine the relevancy and admissibility of any evidence offered at the hearing 
   
   
2. permit a stipulation of agreed facts by the parties
   
   
3. permit the incorporation by reference into in the record of any document, affidavit, or other exhibit produced and desired to be incorporated into the record by the parties
   
   
4.  question witnesses or evidence introduced by the parties
   
   
5. call additional witnesses 
   
   
6. dismiss any action or permit informal disposition at any stage of the proceeding if agreed to by the parties
   
   
7. dismiss any person from the hearing who interferes with or obstructs the hearing or fails to abide by the rulings of the chair
   
   
8. have present a legal advisor to the committee, who shall be designated by the university counsel and paid for by the university
   
   
9. determine the exclusion or presence of witnesses during the proceedings

F. The provost or his or her representative appearing at the hearing and the faculty member or his or her representative appearing at the hearing shall have the right to do the following:

1. be present at the hearing, which right he or she may waive by inexcusable failure to appear
   
   
2. have present any legal or other advisor and consult with such advisor during the hearing 
   
   
3. present evidence by witnesses and by properly identified written statements or reports in support of the charge
   
   
4. hear or examine evidence presented to the ad hoc committee
   
   
5. question witnesses present and testifying at the hearing
   
   
6. make any statement to the committee in support of the charge
   
   
7. be informed in writing of the findings of the committee and its recommendations on the charge

G. Procedural questions which arise during the hearing and which are not covered by these general rules shall be determined by the chair, whose ruling shall be final unless the chair shall present the question to the ad hoc committee at the request of a member of the committee or one of the parties, in which event the ruling of the committee by majority vote shall be final.

H. The following general rules of decorum shall be adhered to:

1. all requests to address the ad hoc committee shall be made to the chair
   
   
2.  the chair shall rule on all requests and points of order and may consult with the committee's legal advisor prior to any ruling; the chair's ruling shall be 
   final, and all participants shall abide thereby unless the chair shall present the question to the committee at the request of the committee or of the parties, in which event the ruling of the committee by majority vote shall be final
   
   
3.  the faculty member's and university's advisors shall be permitted to address the committee and to question witnesses and may request clarification of a procedural matter or may object on the basis of procedure at any time by addressing the chair after being recognized.

I. The ad hoc committee shall then make its findings and determinations by majority vote in executive session out of the presence of the provost and the faculty member. Separate findings of fact are to be made as to each count of the charge, and a recommendation made based upon the findings on all charges. Each of the five members of the committee shall vote on each charge. Before recommending dismissal of the faculty member, the committee shall be convinced by the evidence in the record considered as a whole that one or more counts have been sustained by clear and convincing evidence and that such count or counts warrant dismissal. The faculty member is not obligated to prove his or her innocence. The university must prove its case against the faculty member. Within seven calendar days after the hearing, the committee shall make its findings of fact and recommendations in writing and transmit them to the provost, the president, and the faculty member. If the committee concludes that just cause for dismissal has been established, but that an academic penalty less than dismissal would be more appropriate, it will so recommend with supporting reasons.

 

A. If the ad hoc committee finds and recommends that just cause for dismissal has not been established in the record, the president shall within seven calendar days accept or reject this recommendation. If the president rejects this recommendation, he or she shall state the reasons for doing so, in writing, to the ad hoc committee and the faculty member. The president’s decision will become final unless the faculty member objects; if the faculty member objects to either the committee's or the president's findings and recommendations, he or she shall within seven calendar days respond after which the president may reconsider his or her decision, transmit the case to the Board of Governors for final action, or (after conferring with the faculty member) take some other action short of dismissal. If the case is transmitted to the Board of Governors for final action, the Board of Governors will, after taking into account the findings and recommendations of both the president and the ad hoc committee, either accept, reject or modify any of these recommendations and provide a statement of reasons therefore, and the faculty member may then, within 10 calendar days, request an appeal hearing before the Board of Governors.

B. The president shall, at the request of the faculty member, transmit to the Board of Governors the record of the case for purposes of appeal. The Board's appeal review will be based on the record of the ad hoc committee's hearing and any testimony which the parties may wish to introduce, and it will provide opportunity for argument, oral or written or both, by the parties at the committee's hearing or by their representatives. The appeal review shall consider matters of fact concerning the original charges (as described in Subsection IV.B.(1) above) against the faculty member, the recommendations and findings of the president and the ad hoc committee and, if the faculty member so requests, whether the university's hearing procedures have been properly followed. The Board of Governors will then make a final decision. The schedule for the decision of the Board of Governors, on both the original case and the appellate review, shall be at the discretion of the Board of Governors but shall be as expeditious as reasonably possible.

C. If the appointment is terminated, the Board of Governors will consider what severance pay or notice will be accorded the faculty member based upon the recommendation of the ad hoc committee and/or the president. In the event of termination of tenure for mental and/or physical incapacity, or inability to perform duties, severance pay of one year shall be the norm, but may be determined to be more or less in the discretion of the Board of Governors taking into account the length and quality of service by the faculty member. In the event that there has been a finding that the conduct which justified dismissal involved professional dishonesty, refusal to perform duties, or the violation of widely recognized professional ethics (as indicated Section III.B. above), minimal notice and/or severance pay may be accorded to the faculty member. Otherwise, severance pay and notice of at least one year will be accorded to the dismissed faculty member. The Board of Governors, in determining what, if any, payments will be made beyond the effective date of dismissal, may take into account the length and quality of service of the faculty member.