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Handbook for contracts dated prior to 7/1/03 (PDF)
13.0 UNC SYSTEM POLICY AND INFORMATION DOCUMENTS
13.1 The Code of the UNC Board of Governors
Several sections of The Code are reproduced here in full. The complete Code, as revised by the Board of Governors of The University of North Carolina on July 1, 2001, can be downloaded at http://www.northcarolina.edu/bog/code/code.cfm (47 pages in Adobe Acrobat pdf format, 3.x or higher).
13.1.1 The Code - Chapter VI - Academic Freedom and Tenure
SECTION 600. FREEDOM AND RESPONSIBILITY IN THE UNIVERSITY COMMUNITY.
(1)The University of North Carolina is dedicated to the transmission and advancement of knowledge and understanding. Academic freedom is essential to the achievement of these purposes. The university therefore supports and encourages freedom of inquiry for faculty members and students, to the end that they may responsibly pursue these goals through teaching, learning, research, discussion, and publication, free from internal or external restraints that would unreasonably restrict their academic endeavors.
(2) The university and each constituent institution shall protect faculty and students in their responsible exercise of the freedom to teach, to learn, and otherwise to seek and speak the truth.
(3) Faculty and students of the University of North Carolina shall share in the responsibility for maintaining an environment in which academic freedom flourishes and in which the rights of each member of the academic community are respected.
SECTION 601. ACADEMIC FREEDOM AND RESPONSIBILITY OF FACULTY.
(2) The university and its constituent institutions shall not penalize or discipline members of their faculties because of the exercise of academic freedom in the lawful pursuit of their respective areas of scholarly and professional interest and responsibility.
SECTION 602. ACADEMIC TENURE.
(1)To promote and protect the academic freedom of its faculty, the board of trustees of each constituent institution shall adopt policies and regulations governing academic tenure.
(2) In all instances, the tenure conferred on a faculty member is held with reference to employment by a constituent institution, rather than to employment by the University of North Carolina.
(3) The tenure policies and regulations of each constituent institution 1 shall prescribe the procedures by which decisions concerning appointment, reappointment, promotion, and the conferral of permanent tenure shall be made. The length of terms of appointment that do not carry permanent tenure and those faculty ranks or titles whose holders shall be eligible for permanent tenure shall be prescribed. The institutional policies and regulations also shall prescribe the intervals at which the review of candidates for reappointment and promotion, including the conferral of permanent tenure, shall occur. The tenure policies and regulations of each institution, which shall include the complete text of Chapter VI of the Code, shall be published by the institution and distributed to its faculty members.
(4) The tenure policies and regulations of each institution shall set forth the general considerations upon which appointment, reappointment, promotion, and permanent tenure are to be recommended. The institutional regulations shall provide that these considerations shall include an assessment of at least the following: the faculty member's demonstrated professional competence, the faculty member's potential for future contribution, and institutional needs and resources.
(5) The institutional policies and regulations shall specify that permanent tenure may be conferred only by action of the president and the Board of Governors, or by such other agencies or officers as may be delegated such authority by the Board of Governors.
tenure policies and regulations shall distinguish among the following:
(a) the nonreappointment (or nonrenewal) of a faculty member at the expiration of a specified term of service;
(b) the discharge or suspension of a faculty member with permanent tenure or of a faculty member appointed to a specified term of service before that term expires for reasons based on incompetence, neglect of duty, or misconduct of such a nature as to indicate that the individual is unfit to continue as a member of the faculty;
(c) the termination of employment for reasons of institutional financial exigency or major curtailment or elimination of a teaching, research, or public-service program of a faculty member who has permanent tenure, or of a faculty member who has been appointed to a specified term of service before that term expires; and
(d) retirement for physical or mental disability.
tenure policies and regulations shall provide that the appointment,
reappointment, or promotion of a faculty member to a position funded in whole or
in substantial part from sources other than continuing state budget funds or
permanent trust funds shall specify in writing that the continuance of the
faculty member's services, whether for a specified term or for permanent tenure,
shall be contingent upon the continuing availability of such funds. The
institutional tenure policies and regulations may make one or more of the
following exceptions to the foregoing contingency requirement:
(a) That such a contingency shall not be included in a promotion to a higher rank if, before the effective date of that promotion, the faculty member had permanent tenure and no such condition is attached to the tenure.
(b) That such a contingency shall not be attached to the faculty member's contract if the faculty member held permanent tenure in that institution on July 1, 1975, and the contract was not contingent upon the continuing availability of sources other than continuing state budget or permanent trust funds.
(c) That such a contingency may be waived for health affairs faculties because of the unusual dependence of programs in the health professions on income from sources such as clinical receipts. If a faculty member's appointment is terminated because of the nonavailability of these funds, the institution will make every reasonable effort to give the same notice as set forth in Section 605 B (1). This notice shall include the pertinent data upon which the termination is based.
(8)The tenure policies and regulations of each institution shall be subject to approval by the president and the Board of Governors. The president periodically shall review and re-evaluate these policies and regulations and report findings and recommendations, if any, to the Committee on Personnel and Tenure and through the committee to the Board of Governors.
SECTION 603. DUE PROCESS BEFORE DISCHARGE OR THE IMPOSITION OF SERIOUS SANCTIONS.
(1) A faculty member, who is the beneficiary of institutional guarantees of tenure, shall enjoy protection against unjust and arbitrary application of disciplinary penalties. During the period of such guarantees the faculty member may be discharged or suspended from employment or diminished in rank only for reasons of incompetence, neglect of duty, or misconduct of such a nature as to indicate that the individual is unfit to continue as a member of the faculty2. These penalties may be imposed only in accordance with the procedures prescribed in this section. For purposes of these regulations, a faculty member serving a stated term shall be regarded as having tenure until the end of that term. These procedures shall not apply to nonreappointment (Section 604) or termination of employment (Section 605).
(2)The chief academic officer of the institution, however titled, shall send the faculty member by registered mail, return receipt requested, a written statement of intention to discharge him. The statement shall include notice of the faculty member's right, upon request, to both written specification of the reasons for the intended discharge and a hearing by an elected standing faculty committee on hearings.
(3)If, within ten days3 after receiving the notice referred to in paragraph (2) above, the faculty member makes no written request for either a specification of reasons or a hearing, the faculty member may be discharged without recourse to any institutional grievance or appellate procedure.
(4)If, within ten days after receiving the notice referred to in paragraph (2) above, the faculty member makes written request, by registered mail, return receipt requested, for a specification of reasons, the chief academic officer shall supply such specification in writing by registered mail, return receipt requested, within ten days after receiving the request. If the faculty member makes no written request for a hearing within ten days after receiving the specification, the faculty member may be discharged without recourse to any institutional grievance or appellate procedure.
(5) If the faculty member makes a timely written request for a hearing, the chief academic officer shall insure that the hearing is accorded before an elected standing committee of the institution's faculty. The hearing shall be on the written specification of reasons for the intended discharge. The hearing committee shall accord the faculty member twenty days from the time it receives the faculty member's written request for a hearing to prepare a defense. The hearing committee may, upon the faculty member's written request and for good cause, extend this time by written notice to the faculty member.
(6) The hearing shall be closed to the public unless the faculty member and the hearing committee agree that it may be open. The faculty member shall have the right to counsel, to present the testimony of witnesses and other evidence, to confront and cross-examine adverse witnesses, and to examine all documents and other adverse demonstrative evidence. A written transcript of all proceedings shall be kept; upon request, a copy thereof shall be furnished to the faculty member at the institution's expense.
(7)The chief academic officer, or counsel, may participate in the hearing to present evidence, cross-examine witnesses, and make argument.
(8) In reaching decisions on which its written recommendations to the chancellor shall be based, the committee shall consider only the evidence presented at the hearing and such written or oral arguments as the committee, in its discretion, may allow. The committee shall make its written recommendations to the chancellor within ten days after its hearing concludes.
(9)If the chancellor concurs in a recommendation of the committee that is favorable to the faculty member, the chancellor's decision shall be final. If the chancellor either declines to accept a committee recommendation that is favorable to the faculty member or concurs in a committee recommendation that is unfavorable to the faculty member, the faculty member may appeal the chancellor's decision to the board of trustees. This appeal shall be transmitted through the chancellor and be addressed to the chairman of the board. Notice of appeal shall be filed within ten days after the faculty member receives the chancellor's decision. The appeal to the board of trustees shall be decided by the full board of trustees. However, the board may delegate the duty of conducting a hearing to a standing or ad hoc committee of at least three members. The board of trustees, or its committee, shall consider the appeal on the written transcript of hearings held by the faculty hearing committee, but it may, in its discretion, hear such other evidence as it deems necessary. The board of trustees' decision shall be made within forty-five days after the chancellor has received the faculty member's request for an appeal to the trustees. This decision shall be final except that the faculty member may, within ten days after receiving the trustees' decision, file a written petition for review with the Board of Governors if the faculty member alleges that one or more specified provisions of the Code of the University of North Carolina have been violated. Any such petition to the Board of Governors shall be transmitted through the president, and the board shall, within forty-five days, grant or deny the petition or take such other action as it deems advisable. If it grants the petition for review, the board's decision shall be made within forty-five days after it has notified the faculty member that it will review the petition.
(10)When a faculty member has been notified of the institution's intention to discharge the faculty member, the chancellor may suspend the individual at any time and continue the suspension until a final decision concerning discharge has been reached by the procedures prescribed herein. Suspension shall be exceptional and shall be with full pay.
SECTION 604. APPOINTMENT, NONREAPPOINTMENT AND REQUIREMENTS OFNOTICE AND REVIEW.
604 A. Notice of Reappointment or Nonreappointment.
(1)The decision not to reappoint a faculty member at the expiration of a fixed term of service shall be made by the appropriate institutional faculty and administrative officers early enough to permit timely notice to be given. For full-time faculty at the rank of instructor, assistant professor, associate professor, or professor, the minimum requirement for timely notice shall be as follows:
(2)Notice of reappointment or nonreappointment shall be written. If the decision is not to reappoint, then failure to give timely notice of nonreappointment will oblige the chancellor thereafter to offer a terminal appointment of one academic year.
604 B. Impermissible Reasons for Nonreappointment.
In no event shall a decision not to reappoint a faculty member be based upon (a) the exercise by the faculty member of rights guaranteed by the First Amendment to the United States Constitution, or by Article I of the North Carolina Constitution, or (b) discrimination based upon the faculty member's race, sex, religion, national origin, age, or disability, or (c) personal malice.
604 C. Special Faculty Appointments.
All appointments of visiting faculty4 , adjunct faculty, or other special categories of faculty such as lecturers, artists-in-residence, or writers-in-residence shall be for only a specified term of service. That term shall be set forth in writing when the appointment is made, and the specification of the length of the appointment shall be deemed to constitute full and timely notice of nonreappointment when that term expires. The provisions of Sections 602 (4) and 604 A shall not apply in these instances.
SECTION 605. TERMINATION OF FACULTY EMPLOYMENT.
605 A. Definition.
The tenure policies and regulations of each institution shall provide that the employment of faculty members with permanent tenure or of faculty members appointed to a fixed term may be terminated by the institution because of (1) demonstrable, bona fide institutional financial exigency or (2) major curtailment or elimination of a teaching, research, or public-service program. "Financial exigency" is defined as a significant decline in the financial resources of the institution that is brought about by decline in institutional enrollment or by other action or events that compel a reduction in the institution's current operations budget. The determination of whether a condition of financial exigency exists or whether there shall be a major curtailment or elimination of a teaching, research, or public-service program shall be made by the chancellor, after consulting with the academic administrative officers and faculties as required by Section 605 C(1), subject to the concurrence by the president and then approval by the Board of Governors. If the financial exigency or curtailment or elimination of program is such that the institution's contractual obligation to a faculty member may not be met, the employment of the faculty member may be terminated in accordance with institutional procedures that afford the faculty member a fair hearing on that decision.
605 B. Timely Notice of Termination.
(1)When a faculty member's employment is to be terminated because of major curtailment or elimination of a teaching, research, or public-service program and such curtailment or elimination of program is not founded upon financial exigency, the faculty member shall be given timely notice as follows:
(2)When a faculty member's employment is to be terminated because of financial exigency, the institution will make every reasonable effort, consistent with the need to maintain sound educational programs and within the limits of available resources, to give the same notice as set forth in Section 605 B(1).
(3)For a period of two years after the effective date of termination of a faculty member's contract for any of the reasons specified in Section 605 A, the institution shall not replace the faculty member without first offering the position to the person whose employment was terminated. The offer shall be made by registered mail, return receipt requested, and the faculty member will be given thirty calendar days after receiving notice to accept or reject the offer.
605 C. Institutional Procedures.
The institution shall establish regulations governing termination procedures. These regulations shall include provisions incorporating the following requirements:
(1)If it appears that the institution will experience an institutional financial exigency or needs seriously to consider a major curtailment or elimination of a teaching, research or public-service program, the chancellor or chancellorŐs delegate shall first seek the advice and recommendations of the academic administrative officers and faculties of the departments or other units that might be affected.
(2)In determining which faculty member's employment is to be terminated for reasons set forth in Section 605 A, the chancellor shall give consideration to tenure status, to years of service to the institution, and to other factors deemed relevant, but the primary consideration shall be the maintenance of a sound and balanced educational program that is consistent with the functions and responsibilities of the institution.
(3)An individual faculty member whose employment is to be terminated shall be notified of this fact in writing. This notice shall include a statement of the conditions requiring termination of employment, a general description of the procedures followed in making the decision and a disclosure of pertinent financial or other data upon which the decision was based.
(4)A reconsideration procedure shall be provided that affords the faculty member whose employment is to be terminated a fair hearing on the termination if the faculty member alleges that the decision to terminate was arbitrary or capricious.
(5)The institution, when requested by the faculty member, shall give reasonable assistance in finding other employment for a faculty member whose employment has been terminated.
(6)The faculty member may appeal the reconsideration decision in the manner provided by Section 501 C(4).
SECTION 606. RETIREMENT OF FACULTY.
Faculty may retire in accordance with the provisions of Chapter 135 of the North Carolina General Statutes ("Retirement System of Teachers and State Employees").
SECTION 607. FACULTY GRIEVANCE COMMITTEE FOR CONSTITUENT INSTITUTIONS.
(1)The chancellor of each constituent institution shall provide for the establishment of a faculty grievance committee. The faculty grievance committee shall be elected by the faculty with members elected from each professorial rank. No officer of administration shall serve on the committee. For purposes of this section, "officer of administration" shall be deemed to include department chairmen and department heads.
(2)The committee shall be authorized to hear, mediate, and advise with respect to the adjustment of grievances of members of the faculty. The power of the committee shall be solely to hear representations by the persons directly involved in a grievance, to mediate voluntary adjustment by the parties, and to advise adjustment by the administration when appropriate. Advice for adjustment in favor of an aggrieved faculty member may be given to the chancellor only after the dean, department head, or other administrative official most directly empowered to adjust it has been given similar advice and has not acted upon it within a reasonable time.
(3)"Grievances" within the province of the committee's power shall include matters directly related to a faculty member's employment status and institutional relationships within the constituent institution. However, no grievance that grows out of or involves matters related to a formal proceeding for the suspension, discharge or termination of a faculty member, or that is within the jurisdiction of another standing faculty committee, may be considered by the committee.
(4)If any faculty member has a grievance, the faculty member may petition the faculty grievance committee for redress. The petition shall be written and shall set forth in detail the nature of the grievance and against whom the grievance is directed. It shall contain any information that the petitioner considers pertinent to the case. The committee shall decide whether the facts merit a detailed investigation so that submission of a petition shall not result automatically in an investigation or detailed consideration of the petition.
(5)If, before this section is established, the faculty of an institution has adopted a faculty grievance procedure that in its judgment is adequate to its needs, it may retain that procedure in place of the one specified above5.
SECTION 608. STUDENTS' RIGHTS AND RESPONSIBILITIES.
(1)The University of North Carolina affirms that the first goal of each constituent institution is to educate the students admitted to its programs. The freedom of students to learn is an integral and necessary part of the academic freedom to which the university and its constituent institutions are dedicated. Each constituent institution shall provide, within allotted functions and available resources, opportunity for its students to derive educational benefits through developing their intellectual capabilities, encouraging their increased wisdom and understanding, and enhancing their knowledge and experience applicable to the effective discharge of civic, professional, and social responsibilities. No constituent institution shall abridge either the freedom of students engaged in the responsible pursuit of knowledge or their right to fair and impartial evaluation of their academic performance.
(2) All students shall be responsible for conducting themselves in a manner that helps to enhance an environment of learning in which the rights, dignity, worth, and freedom of each member of the academic community are respected.
(3)In applying regulations in the area of student discipline, each constituent institution shall adhere to the requirements of due process as set forth in Section 502 D(3) of this Code.
SECTION 609. APPELLATE JURISDICTION OF THE BOARD OF GOVERNORS.
609 A. Discretionary Review.
Nothing contained in Chapter VI, or any other chapter of the Code, shall be construed to limit the right of the Board of Governors to make such inquiry and review into personnel actions as it may from time to time deem appropriate.
609 B. Hearings.
The Board of Governors may in its sole discretion conduct hearings. Any hearing, whether before the full board or a designated standing or special committee of the board, shall be limited to such matters as the Board of Governors shall deem appropriate.
1 Because of the unique character and mission of the North Carolina School of the Arts, the requirement that the institution adopt tenure policies will be satisfied at that institution by an employment system based on renewable contracts, which system need not provide for the traditional faculty ranks. Wherever the phrase "tenure policies and regulations" is used in this chapter, it shall mean, for the School of the Arts, the faculty employment policies of that school. Wherever the phrase "tenured faculty" is used in this chapter, it shall mean, for that school, a faculty member holding a fixed-term contract.
2 Retirement for reason of disability shall be in accordance
with North Carolina statutes and regulations governing retirement for faculty
who are members of the state retirement system. A faculty member
who is not a member of the state retirement system and who is mentally or physically disabled, but refuses to
retire, may be discharged because of that disability only in accordance with the procedures of this section.
3 Wherever it is used in this chapter, except when calendar day is specified, the word "day" shall mean any day except Saturday, Sunday or an institutional holiday. In computing any period of time, the day in which notice is received is not counted but the last day of the period being computed is to be counted.
4 Visiting faculty shall include any person who is appointed to a term of less than one academic year.
section became effective July 1, 1975.
126.96.36.199 Time Limits on Appeals under Section 501C(4) of The Code
ADMINISTRATIVE MEMORANDUM #206 September 17, 1984 (amended 6/17/85)
At its meeting on September 14, the Board of Governors adopted the policy below which establishes limits on the respective periods of time within which a grievant may initiate the various stages of appeal provided for in Section 501C(4) of the Code. The policy also establishes limits on the length of time that an appellate body (e.g., President, Board of Trustees, Board of Governors) may take in deciding an appeal.
It is important that each institution take appropriate steps to insure that all potentially affected individuals and agencies have advance clear understanding of these requirements. Thus, since every such appeal is from a decision by the Chancellor (or his delegate, in certain instances), notice of the disposition of a grievant's case must contain written notice as well of the time limit within which the grievant may file a petition for review by the next highest responsible body, via., either the President or the Board of Trustees. In addition, each institution should assume responsibility for insuring that when a grievant wishes to appeal from a decision of the Board of Trustees, there is clear notice of the time limit for filing such a petition. Finally, those informational documents regularly published by the institution (e.g., faculty handbook, EPA non-faculty handbooks, student code handbooks, etc.) should include at their next printing an effective summary statement of these time limits, to help insure full understanding by all constituencies of the campus.
Policy on Appeals Process to Board of Governor's and/or UNC System President, September 14, 1984
In each instance used, the term "days" shall mean consecutive calendar days.
188.8.131.52 Implementation of Time Limits on Appeals in University Grievance Proceedings
ADMINISTRATIVE MEMORANDUM #230 December 9, 1985
By Administrative Memoranda Nos. 206 and 219 each institution was informed of policies adopted by the Board of Governors concerning time limits for filing and processing appeals, from one level of University consideration to the next. Those policies in their current version prescribe that an aggrieved petitioner shall file his "written notice of appeal" within 10 calendar days of receipt of notice of the decision from which he wishes to appeal. For example, if dissatisfied with the Chancellor's decision, notice of appeal must be filed with the Board of Trustees within the prescribed ten-day period. Once filed, such an appeal must be decided by the appellate body (e.g., either Board of Trustees or President or Board of Governors) within a prescribed period of time.
Concern has been expressed by members of the University community that the prescriptions concerning a ten-day limit on filing notice may be understood or interpreted to require the grievant to present his complete appellate case (i.e., appellate record, written arguments, etc.) within the ten-day period. Such was not the intention of the Board of Governors, and no such approach has been followed by this office in responding to requests for review addressed either to the President or to the Board of Governors. Rather, the consistent interpretation has been that the ten-day limit applies only to require that a simple "notice" of request for review be filed in a timely manner. Thereafter, staff of this office responds by prescribing a chronological listing of steps, and corresponding due dates, which are essential to perfection of the appeal for consideration by the appellate body, e.g., submission of the proposed record on appeal, response to such submission by the original decision-maker, submission of stated grounds for appeal and accompanying arguments, reply by the decision-maker, etc. Such a calendar is constructed in a manner designed to assure completion of these preliminary steps on a schedule that permits the appellate body to consider and resolve the appeal within the limited time frame prescribed for its action.
In the UNC President's view it is neither feasible nor desirable to amend the Board of Governors policy for the purpose of prescribing, step-by-step, a breakdown of time intervals for completion of various tasks essential to the perfection of an appeal.
However, to address the concern that has been expressed about the meaning and effect of the ten-day time limits, I direct you to insure that grievants who may wish to file notices of an appeal from a decision you have rendered or which has been rendered by the Board of Trustees, be informed, as a part of that decision: (1) that a simple written notice of appeal is all that is required within the ten-day period and (2) that thereafter a detailed schedule for the submission of relevant documents will be established if such a notice of appeal is received in a timely manner. All such notices of decision are to be conveyed to the grievant by return-receipt mail.
This type of routine reassurance should allay the concern that has been expressed about the possibility of insufficient time being accorded a grievant to make his appellate presentation.
184.108.40.206 Interpretation of Personal Malice
EXCERPT FROM REPORT OF COMMITTEE ON PERSONNEL AND TENURE
Adopted by the Board of Governors, March 9, 1990
Neither The Code nor the UNC tenure regulations define "personal malice." The following is an interpretation of Section 604 of The Code. (see Section 13.1.1)
Tenure regulations state, uniformly, that the decision whether to reappoint a faculty member may be based on any factor considered relevant to institutional interests. Thus, institutional discretion in such decisionmaking is limited only by the Board requirement that the decision not be based on one or more of the three specifically identified impermissible considerations in Section 604b.
The three prohibited grounds for decision are identical in their basic rationale. Each deals with a cause-and-effect relationship between an improper motivation and the denial of an employment opportunity. Each deals with decisionmaking based on considerations that are not relevant in evaluating employee performance. Thus, a nonreappointment decision shall not be used to retaliate against an employee for exercising constitutional rights of free speech; a nonreappointment decision shall not be used to discriminate on the basis of race, sex, religion or national origin; and a nonreappointment decision shall not be used as the medium for expressing feelings of personal malice.
As used in The Code, the term "personal malice" means dislike, animosity, ill-will or hatred based on personal characteristics, traits or circumstances of an individual that are not relevant to valid University decisionmaking. Having separately dealt with matters of race, sex, religion and national origin, this particular Code provision simply goes on to state that other personal factors similarly may be outside the scope of proper consideration. Thus, to identify but a few possibilities, personnel decisions based on negative reactions to an employee's anatomical features, marital status or social acquaintances are intrinsically suspect.
While the terms "ill-will", "dislike", "hatred" and "malevolence" may connote different degrees of antipathy, such distinctions make no difference in applying the fundamental rationale of the Board's prohibition. Any degree of negative feeling toward a candidate based on irrelevant personal factors, regardless of the intensity of that feeling, is an improper basis for decisionmaking.
13.1.2 The Code - Chapter V, Section 502 Chancellors of Constituent Institutions
SECTION 502. CHANCELLORS OF CONSTITUENT INSTITUTIONS.
502 A. General Authority.
The administrative and executive head of each constituent institution shall be the chancellor, who shall exercise complete executive authority therein, subject to the direction of the president. The chancellor shall be responsible for carrying out policies of the Board of Governors and of the board of trustees. [See G.S. 116-34(a)]
502 B. Relation of the Chancellor to the Board of Governors and the President.
(1)It shall be the duty of the chancellor to keep the president, and through the president the Board of Governors, fully informed concerning the operations and needs of the institution. Upon request, the chancellor shall be available to confer with the president or with the Board of Governors concerning matters that pertain to the institution. [See G.S. 116-34(c)] As of June 30 of each year the chancellor shall prepare for the Board of Governors a detailed report on the operation of the institution for the preceding year. [See G.S. 116-34(a)] The chancellor shall make such additional reports to the president or the Board of Governors as the president or the Board of Governors may require.
(2)The chancellor shall make recommendations for development of the educational programs of the institution [See G.S. 116-34(d)] and shall serve as general adviser to the president, and through the president the Board of Governors, with respect to all programs and activities of the institution.
(3)The chancellor shall be responsible to the president for the administration of the institution, including the enforcement of the decisions, actions, policies, and regulations of the Board of Governors applicable to the institution.
(4) Subject to policies prescribed by the Board of Governors and by the institutional board of trustees, the chancellor shall make recommendations for the appointment of personnel within the institution. [See G.S. 116-34(d)] With respect to all personnel matters, including appointments, promotions, removals, and compensation for the institution's academic, administrative, and other staffs, which are required to be acted upon by the Board of Governors, the chancellor shall make recommendations to the president.
(5)The chancellor shall present to the president all matters concerning the institution which are to be considered by the Board of Governors or any of its committees. In accordance with prescribed administrative procedures uniformly applicable to all institutions, the chancellor shall participate in the development of the proposed budget of the University of North Carolina.
(6)The chancellor shall be the official medium of communication between the president and all deans, heads or chairmen of departments, directors, and all other administrative officers, faculty members, students, and employees.
502 C. Relation of the Chancellor to the Board of Trustees.
(1)It shall be the duty of the chancellor to attend all meetings of the board of trustees and to be responsible for keeping the board of trustees fully informed on the operation of the institution and its needs. [See G.S. 116-34(b)]
(2) As of June 30 of each year the chancellor shall prepare for the board of trustees a detailed report on the operation of the institution for the preceding year. [G.S. 116-34(a)] The chancellor shall also submit such additional reports to the board of trustees as the chancellor may deem wise or as the board may require. The chancellor shall seek the counsel of the board of trustees concerning the affairs of the institution.
(3)The chancellor shall be responsible to the board of trustees for enforcing all policies, rules, and regulations of the board of trustees.
(4) The chancellor shall be the official medium of communication between the board of trustees and all individuals, officials, agencies, and organizations, both within and without the institution.
502 D. Relation of the Chancellor to the Constituent Institution.
(1)Subject to policies established by the Board of Governors, the board of trustees, or the president, the chancellor; shall be the leader of and the official spokesman for the institution; shall promote the educational excellence and general development and welfare of the institution; shall define the scope of authority of faculties, councils, committees, and officers of the institution; and all projects, programs, and institutional reports to be undertaken on behalf of the institution shall be subject to the chancellor's authorization and approval.
(2)The chancellor shall be a member of all faculties and other academic bodies of the institution and shall have the right to preside over the deliberations of any legislative bodies of the faculties of the institution.
The chancellor shall be responsible for insuring that there exists in the institution a faculty council or senate, a majority of whose members are elected by and from the members of the faculty. The general faculty, however, which shall include at least all full-time faculty and appropriate administrators, may function as the council or senate. The faculty shall be served by a chairman elected either by the general faculty or by the council or senate. However, the chancellor may attend and preside over all meetings of the council or senate. The council or senate may advise the chancellor on any matters pertaining to the institution that are of interest and concern to the faculty.
In addition to insuring the establishment of a council or senate, the chancellor shall insure the establishment of appropriate procedures within the institution to provide members of the faculty the means to give advice with respect to questions of academic policy and institutional governance, with particular emphasis upon matters of curriculum, degree requirements, instructional standards, and grading criteria. The procedures for giving advice may be through the council or senate, standing or special committees or other consultative means.
(3)Subject to any policies or regulations of the Board of Governors or of the board of trustees, it shall be the duty of the chancellor to exercise full authority in the regulation of student affairs and in matters of student discipline in the institution. In the discharge of this duty, delegation of such authority may be made by the chancellor to faculty committees and to administrative or other officers of the institution, or to agencies of student government, in such manner and to such extent as may by the chancellor be deemed necessary and expedient. In the discharge of the chancellor's duty with respect to matters of student discipline, it shall be the duty of the chancellor to secure to every student the right of due process and fair hearing, the presumption of innocence until found guilty, the right to know the evidence and to face witnesses testifying against the student, and the right to such advice and assistance in the individual's defense as may be allowable under the regulations of the institution as approved by the chancellor. In those instances where the denial of any of these rights is alleged, it shall be the duty of the president to review the proceedings.
13.1.3 The Code - Appendix - Delegation of Duty and Authority to Boards of Trustees
Appendix 1 - DELEGATIONS OF DUTY AND AUTHORITY TO BOARDS OF TRUSTEES
Pursuant to authority vested in it by the General Statutes, and consistent with the provisions of The Code of the University of North Carolina, the Board of Governors hereby delegates to the boards of trustees of the constituent institutions of the University of North Carolina the following duties and powers:
I. ACADEMIC AND ADMINISTRATIVE PERSONNEL
A. Appointment and Compensation
1. With respect to all faculty positions with permanent tenure and all senior administrative positions, namely vice chancellors, provosts, deans, and directors of major educational and public service activities, the chancellor, following consultation with the board of trustees, shall forward to the president recommendations with respect to such appointments, promotions, and compensation; if the president concurs in such recommendations, the president shall forward them to the Board of Governors for approval.
2. With respect to all faculty and administrative positions, other than those identified in subparagraph 1 above, and other than those subject to the State Personnel Act, the chancellor shall forward the chancellor's recommendations for appointment, promotion, and compensation to the board of trustees; subject to applicable provisions of the university Code and to such policies as may be established by the Board of Governors, the action of the board of trustees with respect to such personnel actions shall be final.
B. Discharge or Suspension
Subject to regulations of the board of trustees and consistent with applicable policies of the Board of Governors, all discharges or suspensions of faculty members and administrative personnel, other than those subject to the State Personnel Act, shall be effected by the chancellor. A discharged or suspended employee shall have such rights of appeal from the action of the chancellor as may be prescribed by the university Code, policies of the Board of Governors, or regulations of the board of trustees.
C. Personnel Policies
The board of trustees may adopt personnel policies not otherwise prescribed by state law, the university Code, or policies of the Board of Governors, for personnel in all categories of university employment.
D. Chancellor Selection
In the event of a vacancy in the chancellorship, the board of trustees shall establish a search committee composed of representatives of the board of trustees, the faculty, the student body and the alumni. Upon the establishment of the search committee, the chairman of the board of trustees and the president shall jointly establish a budget and identify staff for the committee. The search committee, through its chairman, shall make a preliminary report to the president when the committee is preparing a schedule of interviews of those persons it considers to constitute the final list and from among whom it anticipates the trustees' nominees will be chosen, and the president will be given an opportunity to interview each of these candidates. The board of trustees, following receipt of the report of the search committee, shall recommend at least two names for consideration by the president in designating a nominee for the chancellorship, for approval by the Board of Governors.
II. ACADEMIC PROGRAM
The board of trustees shall be responsible for insuring the institution's compliance with the educational, research, and public service roles assigned to it by the Board of Governors, either by express directive or by promulgated long-range plans of the Board of Governors.
III. ACADEMIC DEGREES AND GRADING
Subject to authorization by the Board of Governors of the nature and general content of specific degree programs which may be offered by an institution, each institution shall determine whether an individual student shall be entitled to receipt of a particular degree. Each institution also shall determine what grade a student will be assigned in a particular course. No appeal from such an institutional decision shall lie beyond the board of trustees.
IV. HONORARY DEGREES, AWARDS AND DISTINCTIONS
The board of trustees shall be responsible for approving the names of all individuals on whom it is proposed that an honorary degree or other honorary or memorial distinction be conferred by the institution, subject to such policies as may be established by the Board of Governors.
V. BUDGET ADMINISTRATION
The board of trustees shall advise the chancellor with respect to the development of budget estimates for the institution and with respect to the execution and administration of the budget of the constituent institution, as approved by the General Assembly and the Board of Governors.
VI. PROPERTY AND BUILDINGS
The board of trustees of a constituent institution shall be responsible, subject to policies of the Board of Governors and all legal requirements relative to the construction of state-owned buildings, for the following matters concerning campus capital construction projects which have been approved by the Board of Governors and authorized by the state of North Carolina: (1) the selection of architects or engineers for buildings and improvements requiring such professional services; (2) the approval of building sites; (3) the approval of plans and specifications; and (4) the final acceptance of all completed buildings and projects.
The board of trustees shall be responsible to the Board of Governors for preparing and maintaining a master plan for the physical development of the institution, consistent with the total academic and service mission of the institution as defined and approved by the Board of Governors.
Any proposal involving the acquisition or disposition by an institution of any interest in real property shall be recommended by the board of trustees to and must be approved by the Board of Governors; provided, that if the proposal involves an interest in real property which is valued at less than $50,000, the board of trustees may authorize such transaction and proceed to obtain the necessary approvals from appropriate state officials and agencies, without first obtaining the approval of the Board of Governors; and provided, further, that the Board of Governors, under circumstances which it considers appropriate and following notice from it to the board of trustees, may take action necessary to effect the acquisition or disposition of an interest in real property which is related to or which affects the institution, without receipt of a recommendation from the board of trustees1.
VII. ENDOWMENTS AND TRUST FUNDS
Subject to applicable provisions of state law and to such terms and conditions as may be prescribed from time to time by the Board of Governors, each board of trustees shall be responsible for the preservation, maintenance, and management of all properties, both real and personal, funds and other things of value which, either separately or in combination, constitute all or any part of the authorized endowment or trust funds, either currently in existence or to be established in the future, for the benefit of the individual constituent institution. [See G.S. 116-11(2); 116-12; 116-36; 116-36. 1; 116-36. 2; 116-36. 3]
Subject to such enrollment levels and minimum general criteria for admission2 as may be established for a constituent institution by the Board of Governors, each constituent institution of the University of North Carolina shall establish admissions policies and resolve individual admission questions for all schools and divisions within the institution. No appeal concerning an individual admission case shall lie beyond the institutional board of trustees.
IX. TUITION, FEES AND DEPOSITS
A. General Authority of Boards of Trustees
The boards of trustees of the constituent institutions shall cause to be collected from each student, at the beginning of each semester, quarter, or term, such tuition, fees, and other amounts necessary to pay other expenses for the term, as have been approved by the Board of Governors. [See G.S. 116-11(7) and G.S. 116-143]
B. Tuition and Fee Deposits
Each board of trustees shall require the payment of such advance deposits, at such times and under such conditions, as may be required by state law or by the Board of Governors. [See G.S. 116-143]
C. Application Fee
Each board of trustees shall require the payment of such nonrefundable application fees, in connection with each application for admission, as may be required by state law or by the Board of Governors. [See G.S. 116-143]
D. Acceptance of Obligations in Lieu of Cash
Subject to policies prescribed by the Board of Governors, the boards of trustees shall establish regulations concerning the acceptance of obligations of students, together with such collateral or security as may be deemed necessary or proper, in lieu of cash, in payment of tuition and fees. [See G.S. 116-143]
E. Fee Recommendations
Subject to policies prescribed by the Board of Governors, each board of trustees, in consultation with the chancellor, shall recommend to the president the amounts to be charged at the constituent institution for application, athletics, health services, student activities, educational and technology, retirement of debt incurred for capital improvements projects authorized by the General Assembly, course, and special fees. In carrying out this responsibility, each board of trustees and the chancellor shall ascertain that the benefits of the activity or service are commensurate with the recommended fee which is required to support the activity or service. Recommended fees should be consistent with the philosophy set forth in the North Carolina Constitution which states that the benefits of the University of North Carolina should be extended to the people of the state fee of expense, as far as practicable.
X. STUDENT FINANCIAL AID
All scholarships and other forms of financial aid to students which are limited in their application to or are supported from sources generated by an individual campus shall be administered by the constituent institution pursuant to such regulations as may be prescribed by the board of trustees and subject to the terms of any applicable laws and to policies of the Board of Governors.
XI. STUDENT SERVICES
Each board of trustees, upon recommendation of the chancellor, shall determine the type, level, and extent of student services (such as health care, athletic programs, and counseling) to be maintained for the benefit of students at the institution, subject to general provisions concerning types and levels of student services as may be prescribed by the Board of Governors.
XII. STUDENT CONDUCT, ACTIVITIES AND GOVERNMENT
Under such policies as may be prescribed by the Board of Governors and the board of trustees, the chancellor shall be responsible for the regulation of student conduct, the approval of organized, institutionally-recognized student activities and the definition of roles and functions of any institutionally-recognized system of student self-government and student participation in the governance of any aspect of the institutional programs and services. No appeal concerning such activities shall lie beyond the board of trustees, unless it is alleged that the policy, action or decision being appealed violates any law or constitutional provision of North Carolina or of the United States, the university Code, or policies of the Board of Governors.
XIII. INTERCOLLEGIATE ATHLETICS
Subject to such policies as may be prescribed by the Board of Governors and the board of trustees, the chancellor shall be responsible for the establishment and supervision of the institution's program of intercollegiate athletics.
XIV. TRAFFIC AND PARKING REGULATIONS3
XV. CAMPUS SECURITY
Subject to applicable provisions of state law and such policies as may be adopted by the Board of Governors or the board of trustees, the chancellor shall be responsible for the maintenance of campus security.
XVI. AUXILIARY ENTERPRISES, UTILITIES AND MISCELLANEOUS FACILITIES
Pursuant to applicable provisions of state law and policies of the Board of Governors, the boards of trustees of affected constituent institutions shall have authority and responsibility for the adoption of policies applicable to and the control and supervision of campus electric power plants and water and sewer systems, other utilities and facilities [See G.S. 116-35] and child development centers [See G.S. 116-38(a),(b) and (c)].
1 By resolution adopted November 13, 1981, the Board of Governors elaborated upon this provision concerning the acquisition and disposition of interest in real estate. The resolution says, among other things, that the value of an interest in real estate shall, with respect to a lease, be deemed the annual rental thereof. Further, the resolution expressly authorizes the board of trustees to delegate to their respective chancellors the power to authorize for the institutions the acquisition or disposition by lease of institutions the acquisition or disposition by lease of interests in real estate valued at less than $25,000, subject to any necessary approval from state officials and agencies.
2 The Board of Governors adopted minimum undergraduate admission requirements on July 31, 1987. See Section VII-B of The Administrative Manual of the University of North Carolina.
3 Legislation adopted by the 1973 session of the General
Assembly, on recommendation of the Board of Governors, gave the boards of
trustees broad authority in this area and superseded the authority originally
granted in this paragraph; hence it is omitted here. [See G.S. 116-44.3 et.
13.1.4 Memo on Faculty Grievance from UNC system President
This memorandum is intended to clarify Grievance and Tenure Procedures and Concepts.
April 12, 1983
TO: Chairman Hauser and Members of the University of North Carolina Faculty Assembly
FROM: William Friday
This memorandum is sent to you in response to Assembly resolution 81-9. That resolution speaks to the important subject of faculty grievance procedures. I share with all members of the Assembly the conviction that University procedures should be conceived and carried out in such a way as to assure faculty members of their rights under the law and under University policies, and to minimize any need for appeals to external authority. This goal requires our best efforts to insure that the basic personnel decisions concerning reappointment, tenure, promotion, and merit pay are soundly and fairly based and that we have effective grievance processes through which those substantive decisions may be questioned by the individuals concerned.
Of the large number of such substantive decisions made annually within the sixteen campuses of the University, only a small percentage produce controversy that necessitates formal grievance proceedings. It is true, however, that there are and will continue to be occasions when a personnel decision will be subject to question by the affected faculty member. It is precisely in anticipation of such situations that we have established grievance processes within the University. The basic question you have raised is this: Are the present grievance procedures competent to resolve such complaints in a fair, objective and reliable manner?
My view is that they are, when they are properly understood and implemented. I base this conclusion on my periodic review of those cases which come to my office and to the Board of Governors on appeal from the campuses. From that vantage point I also find evidence that existing procedures are sometimes not well understood. Thus, I believe that there is room and need for improved performance, under our existing procedures, but that there is no need to adopt significantly different types of procedures.
I want to share with you briefly some impressions I have about ways in which our understanding and utilization of existing grievance procedures might be improved. None of this discussion pertains to the procedures set out in Section 603 of the Code concerning the discharge of a faculty member for cause. Such procedures have special requirements that are not applicable to the more typical grievances involving decisions about reappointment, tenure, promotion, and merit pay.
Although they differ in detail, the grievance procedures of all constituent institutions typically involve four distinguishable stages of inquiry.
First, there is opportunity for informal inquiry, at the lowest feasible administrative level, about the grievance of the faculty member. The hope, in every such case, is that informal discussion of the facts and circumstances will resolve the difficulty. Either the faculty member will be persuaded that he has no real grievance or the administrator will be persuaded that an error has been made and should be corrected. Successful use of such informal processes typically turns on a discovery and acknowledgement of misperceived or misinterpreted facts, and it is then possible to straighten out the problem.
Second, if an informal composition of differences proves not to be possible, there may be a need to resolve the dispute through a formal inquiry designed to determine what the facts are and what policies and principles were or should have been applied to the facts in arriving at the decision about which the faculty member complains. Typically, first responsibility for hearing and advising with respect to the resolution of such a dispute is assigned to a committee of faculty peers.
Third, the findings and recommendations of the hearings committee are forwarded to the responsible administrative official, where a final administrative conclusion is to be reached on behalf of the institution.
And last, if still aggrieved by the administrative disposition of his complaint, the faculty member is authorized to appeal the Chancellor's decision to the board of trustees and, in some instances, to the President and the Board of Governors.
That outline is familiar to us all. But where do the difficulties occur?
The central process in the resolution of a contested personnel decision is the hearing conducted by the faculty committee. Its work is critical to the success and, thus, to the credibility of the University's internal efforts to resolve such problems. And there is evidence that, on occasion, the performance of that major task is not without its difficulties.
For one thing, many committee members and many grievants are confused, discouraged, and mystified by what may be called the "over- legalization" of the grievance inquiry. On some occasions and at some locations, the impression given is that such hearing processes have become unreasonably and unnecessarily complex and technical.
There are several possible sources of such inordinate legalism. The essential point, however, is that in our effort to achieve a voluntary internal composition of differences we cannot and should not purport to replicate in detail the functions and procedures of a court of law. While the central task of a faculty committee is frequently difficult and unpleasant, it is a straightforward and entirely manageable task.
The resources and capacities required are similar to those essential in many everyday professional tasks. A question about what happened is raised, evidence supportive of opposing views of the truth are presented, and the common sense and personal and professional integrity of committee members are brought to bear on the evidence to arrive at a conclusion which the committee believes is persuasively induced by the evidence. Thus, the core task if not mysterious.
However, there is an apparent need to assist such committees, if they are more comfortably and confidently to undertake their responsibilities. That conclusion corresponds closely with one of the points in your resolution. I am glad to report that we have been engaged for several months in one type of effort to address that need. Representatives of my office and of the office of the North Carolina Attorney General have held a series of orientation meetings with committee members at various institutions. Any campus which feels a need for this type of assistance may request it. I believe that all campuses potentially can benefit from such an experience.
A second source of difficulty is some apparent uncertainty about or discomfort with the role of the faculty committee and its relationship to the total effort to resolve the grievance. In every instance, the deliberations, findings and conclusions of the committee serve ultimately to inform and advise, but not to bind, the Chancellor in his disposition of the case. That fact is the subject of controversy among some members of the faculty. And that concern appears to underlie another of the points in your resolution. The alternative approach that has been recommended by you for study is binding arbitration, in which a putatively neutral third party, from a source other than the faculty or the administration, would hear and definitively resolve the dispute. Such an approach would displace the responsibilities of both the faculty committee and the Chancellor.
That approach, in my view, is not acceptable. The principal reasons I am not prepared to recommend it to the Board of Governors are these:
Let me now turn to a third problem suggested by your resolution. That is the question about the meaning, effect, and applicability of the concept of "due process of law."
In expressing my concern on this subject, it is necessary to distinguish between constitutionally-required due process, internal University contractual commitments to afford specified types of process, and more generalized notions about basic fairness. The recurring tendency, which is illustrated in portions of your resolution, is to lump all three concepts together, as one undifferentiated mandate. That produces both conceptual and practical difficulties which can and do adversely affect the sound functioning of our grievance process.
Due process, as constitutionally mandated, means that the government (in this instance, a public university) may not take away from any person any thing of value except through a prescribed type of proceeding. The basic elements of such due process typically include clear notice of the basis for the proposed action and a hearing at which the basis for the action may be presented and challenged.
The only types of University proceedings in which the constitutional requirements of due process must be observed are those in which a faculty member is to be discharged, reduced in rank, diminished in pay, or otherwise is to have some right or entitlement taken away from him by the University. Thus, Section 603 of the Code contains special procedural requirements because vested property rights are at issue.
In contrast, note that in denying tenure, denying promotion, or denying merit salary increment, the constitutional mandate of due process does not apply, because nothing is being taken away from the individual. Nevertheless, in spite of the absence of any legal requirement to do so, the University has instituted certain types of procedures for testing the propriety and regularity of many of those types of decisions, such as denial of tenure, denial of promotion, and denial of merit pay. Such grievance procedures are voluntary undertakings and commitments, which are contractual in character. Through their use, the University has assured faculty members that when certain types of adverse decisions are reached, the affected faculty member shall have access to a prescribed type of proceeding to inquire into the propriety of the decision.
There are obvious and compelling reasons for our having concluded, collectively, that the availability and use of such internal procedures is highly desirable. First, the University always should seek voluntarily to identify, recognize and correct its errors, on its own motion, when errors occur. Second, with respect to grievances that derive from alleged violations of law that could be redressed in the courts, the cohesion and spirit of the University community are best served if such matters can be resolved internally on a mutually satisfactory basis. Third, successful use of internal procedures avoids the waste of human and fiscal resources that frequently attends use of more formal external procedures, before courts or governmental enforcement agencies.
Clearly, such considerations are valid and compelling, and they support the continued maintenance of voluntary grievance procedures that will accommodate a broad range of individual grievances. But I ask you to examine with me some of the difficulties that result from a misunderstood and undifferentiated invocation of the concept of due process.
In a situation to which constitutional due process applies, the University must assume and sustain the burden of proving that the faculty member should be deprived of some vested right or interest. But that situation must be distinguished from many other situations in which a faculty member is disappointed by the decision that some reward will not be given to him, such as tenure or promotion or merit pay. In those instances, it is the faculty member's obligation to demonstrate that the institution has done him some recognizable and material wrong. He must prove that the institution erred.
The recurring fallacy that I am here seeking to examine is best illustrated by the example of a decision not to reappoint a faculty member upon expiration of a contractual term of employment. The fallacy is stated in various ways. For example, some have asserted that the institution must set forth and prove good reasons for not reappointing a probationary employee. Or, it is said that a probationary faculty member should be given tenure if he has completed his probationary term and ostensibly has met the basic, established standards for the achievement of tenure, or that unless the institution can prove some deficiency in the candidate's performance, he is entitled to tenure.
All of these propositions are in error. They conflict with the legal requirements applicable in such instances, thereby creating assumptions and expectations about the grievance proceedings that confuse and distort those proceedings. Moreover, in my view, they conflict with the longstanding and virtually universal theories on which the American system of tenured faculty employment rests.
Tenure is not a right. It is a privilege that is conferred at the discretion of the institution, pursuant to the process set forth in the Code and the tenure regulations. The only commitment, legal or otherwise, to a new tenure-track employee is to retain that individual for the duration of the specific contractual period. There is no right, entitlement, or justified expectation of any employment relationship beyond the contract period. Stated most simply, an educational institution is free legally to decide not to tenure a probationary employee for any reason deemed satisfactory, with exception for a very limited number of legally proscribed bases for denial of tenure, e.g., discrimination based on race, sex, or age or retaliation for the exercise of constitutionally-assured rights of free speech. These propositions have been affirmed explicitly in rulings by the United States Supreme Court. To that list of legally prohibited bases for nonreappointment, the University Code voluntarily has added an additional category of proscription, denominated "personal malice."
Thus, when a faculty member is aggrieved by a decision not to reappoint, it is his responsibility to allege and prove that one or more of the three impermissible bases for nonreappointment existed. Unlike the situation in the discharge context, it is not the institution's responsibility to prove that the faculty member was in the wrong. Rather, in a nonreappointment case the faculty member must prove that the institution was in the wrong.
With the foregoing basics in mind, I want to focus more particularly on one item in your resolution which urges that written reasons be supplied to a faculty member in explanation of the decision not to reappoint with tenure.
Let me be very clear at the outset about my belief that in virtually no case should the decision not to reappoint come as a surprise to an affected probationary member of a faculty. Through an established process of careful, meaningful, and clearly articulated periodic assessments of a candidate's performance, the probationary faculty member should know on a regular basis where he stands in his progress toward fulfillment of the institution's expectations. During probationary status, the faculty member is in a process of training, growth, change, and evaluation. His professional endeavors should be monitored closely and he should be carefully informed about both his strengths and his weaknesses. Only in a limited set of situations might we reasonably expect a negative decision on tenure to be unanticipated. Those situations, generally, would be a product of institutional needs and exigencies which have nothing to say about the professional merit of the candidate.
Furthermore, common decency demands and our tenure regulations require that when a negative decision on tenure has been reached the affected faculty member shall have access to an informal conference with his administrative supervisors for a discussion of the reasons for the nonreappointment decision.
But both of these salutary, informational efforts are to be and must be distinguished from supplying specific written reasons, in a potentially adversarial context, for the decision not to reappoint. To do so involves, again, the erroneous view that the institution is responsible for proving the individual's unfitness for tenure. It miscasts, at the outset, the proper burden of proof. If in the ensuing hearing process the faculty member presents persuasive evidence that the institution based its nonreappointment decision on an impermissible reason, then and only then is a formal explanation of the institution's reasons for its decision required.
In summary, there are sound reasons for not supplying formal written statements of reasons for the institution's nonreappointment decision, and I do not support any requirement that a constituent institution proceed otherwise.
Finally, your resolution recommends further inquiry into the desirability and feasibility of developing more effective and perhaps more extensive processes for analyzing and adjusting disputes on an informal basis, before resort is had to formal grievance hearings. I endorse that proposition, I reiterate my previously expressed belief that informal resolutions, when possible, are obviously preferable, and I do encourage further study of that subject. However, to the extent that the language of your resolution seems to implicate, once again, the concept of "arbitration" as distinguished from "mediation," I cannot agree with it.
To sum up, I have attempted to share with you my reasons for believing that our present system is sound in its basic formulation, but also to acknowledge that, in operation, there may be shortcomings that require attention and must be corrected. Where such correction may require formal amendment of the tenure regulations of an institution (and this is probably what will be required in some instances), I will begin exploring these questions with the Chancellors in the near future.
I shall welcome an opportunity to respond to questions about or otherwise to discuss the content of our present exchange of views. The most effective medium for that further dialogue, if you seek it, might be for members of my staff to meet with your committee which is charged with responsibility in this area of concern.
I thank you for sharing with me forthrightly the views set forth in your resolution, and I appreciate the serious study and thought that underlies your efforts.
13.2 Other UNC Board of Governor's Policies on Faculty Rights and Responsibilities
13.2.1 Board of Governors Doctoral Study Assignment Program
THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA has established the DOCTORAL STUDY ASSIGNMENT PROGRAM to allow selected faculty members of the comprehensive and general baccalaureate institutions of The University to pursue up to one year of full-time study toward the doctoral degree.
Faculty members selected to participate in the program will be allowed to pursue doctoral studies in an accredited university on a full-time basis during the period of the award. They will continue to receive their full salary and other benefits for the period of study, and will remain as employees of the institutions where they are currently employed. Faculty members selected for these study assignments are responsible for all educational and personal costs associated with their studies, including tuition, moving expenses, travel, and any other such expenses.
In order to be nominated for these awards, a candidate must:
See the Office of Academic Affairs for forms and information about application deadlines. Applications are normally submitted early in the spring semester of each academic year.
13.2.2 Employment/Supervision of Related Persons: (Board of Governors adopted 4/12/73)
RESOLUTION CONCERNING THE EMPLOYMENT OF RELATED PERSONS
WHEREAS, decisions concerning the employment, evaluation, promotion and compensation of academic personnel should be based in every instance on considerations of individual merit, and
WHEREAS, favoritism based on family relationships between employees derogates from the merit principles of employment, and
WHEREAS, the risk of occurrence of such favoritism can be avoided most effectively by the advance establishment of general restrictions against the creation of situations where such favoritism could be operative; and
WHEREAS, a common policy concerning the employment of relatives, applicable to personnel practices at all constituent institutions of The University of North Carolina, is desirable,
NOW THEREFORE, THE Board of Governors herewith adopts the following UNIVERSITY POLICY CONCERNING THE CONCURRENT EMPLOYMENT OF RELATIVES
Directions Concerning Implementation
Consistent with the report of the Personnel Committee of the Board of Governors, which recommended adoption of this policy, the following directions concerning implementation of the policy statement are furnished to each campus administration:
Interpretations of Substantive Policy
This policy applies only to EPA personnel; however, the policy of the State Personnel Board for SPA personnel, is essentially identical in substance to the policy of the Board of Governors. Related employees, may not participate in the evaluation of the other; this means:
The question of "directness" or "indirectness" must be interpreted reasonably to accomplish the intent and spirit of the anti-nepotism policy. As a general rule of interpretation, no supervisory relationship between related persons should be permitted to exist where the supervisor effectively controls the terms and conditions of the relative's employment, including promotion opportunities, rates of compensation, work assignments and evaluation of performance. The terms "direct" and "immediate" may be essentially interchangeable, for purposes of evaluating certain types of relationships; however, in certain situations, because the term "immediate" may connote only "first line" supervision, it may be too restrictive a concept to serve as a reasonable guide.
Existence of the following types of relationships would appear, invariably, to violate the restriction against "direct supervision":
With respect to other types of relationships, an exercise of discretion may be necessary, with the possibility of varying conclusions depending on the operative circumstances. In general, if the relationship between an employee and an official in the line of supervision is sufficiently remote to give rise to no substantial supervisory relationship, it may be appropriate to disregard the fact of family relationship.
In applying all aspects of the Board policy, the essential point, as articulated in the Basic Principles, is that no person shall at any time receive preferred treatment because of his or her relationship to another employee of the institution. The guidelines established in Paragraph A 1 of the Board policy are designed to preclude situations in which there is a high risk of such subjective favoritism. Accordingly, any interpretation of the "direct supervision" restriction should be consistent with this underlying policy objective.
Of critical importance is the principle that administrative guidelines and practices shall operate consistently. For example, if the policy is invoked in one case to preclude employment of a faculty member because his or her relative is Chair of the department, the same result should obtain with respect to all identical cases; conversely, if employment is allowed under certain factual circumstances, there should be consistent results achieved in all identical cases. In short, an ad hoc, case-by-case approach, without the benefit of consistently applied guidelines, is likely to produce variations in result which could prompt charges of discrimination.
13.2.3 Conflict of Interest and Commitment
ADMINISTRATIVE MEMORANDUM #334 Adopted June 18, 1993
POLICIES AND GUIDELINES OF THE BOARD OF GOVERNORS CONCERNING CONFLICTS OF INTEREST AND COMMITMENT AFFECTING UNIVERSITY EMPLOYMENT
The Code of The University of North Carolina affirms that the basic mission of the faculty is "the transmission and advancement of knowledge and understanding." Faculty employment entails the three responsibilities of teaching, scholarly research and publication, and other professional service to the institution and to society. Realization of those objectives is facilitated and encouraged by certain distinctive characteristics of employment within an academic community, which differs markedly from the conventional work-day and work-week employment models in most business and industrial settings.
Within the academy, time-specific assignments, such as classroom contact hours, constitute only a limited part of the workload. Typically, actual teaching hours account for no more than one quarter of a professor's time. However, activity directly affecting the education of students also includes class preparation and student evaluation, scheduled and unscheduled office hours for individual student counseling, and meetings of committees within departments, divisions and schools of the institution which are responsible for curriculum development, syllabus preparation, and program evaluation. In addition, the collective faculty has extensive authority and responsibility for the governance of the institution. Such work usually is accomplished through membership on various committees, at the department, division, school and institutional levels, which address personnel, financial and other administrative issues.
Finally, every member of the faculty is expected to pursue research in his or her area of specialization. Such scholarly activity may be specifically relevant to instruction, it may add generally to the body of information and understanding in a particular field, or it may have direct practical applications, as in business, industry, government, primary and secondary education, public health and national defense.
Faculty members also pursue their specialized professional interests in other contexts, collateral to their immediate university employment. They hold memberships in and attend meetings of professional associations and learned societies; they serve on review or advisory panels; they present lectures, papers, concerts and exhibits; they participate in seminars and conferences; they review and edit scholarly publications; and they participate in accreditation reviews.
Many faculty members also have opportunities to use their specialized competencies in secondary professional employment, as paid consultants to public and private agencies, and thereby contribute to the transfer and application of knowledge.
The role of a scholar, encompassing both institutional employment responsibilities and broader applications of specialized professional interests, is complex. The university employment environment is designed to accommodate such complexity. For many purposes the faculty member is allowed, and indeed encouraged, to function more independently than employees
in other settings. Aside from assigned teaching responsibilities and committee memberships, a faculty member establishes his or her own agenda and schedule in selecting and pursuing scholarly emphases. A substantial part of the value received by society in exchange for its investment in a scholar's career is attributable to that freedom of inquiry, whether the inquiry consists of basic scientific research, applied or performing art, analysis and criticism of literature, or explication of economic principles. Members of the faculty are paid to be imaginative, inquisitive and creative.
The freedom accorded faculty members carries with it a substantial responsibility. Those who display notable talent and are conscientious and productive in their pursuit of knowledge and learning are invited to establish long-term affiliations with the institution through the award of tenure. There is the possibility, however, that members of the faculty may abuse the essential freedom attending faculty employment and neglect their responsibilities to the institution. Such neglect may become an issue when decisions are being made about reappointment or tenure, or it may require attention at other times during the employment relationship. The problem may consist of what may be denominated either a conflict of commitment or a conflict of interest.
Conflict of commitment relates to an individual's distribution of effort between obligations to one's university employment and one's participation in other activities outside of university employment. The latter may include such generally encouraged extensions of professional expertise as professional consulting. Such activities promote professional development and enrich the individual's contributions to the institution, to the profession, and to society. However, a conflict of commitment occurs when the pursuit of such outside activities involves an inordinate investment of time that interferes with the faculty member's obligations to students, to colleagues, and to the missions of the university.
Conflict of interest relates to situations in which financial or other personal considerations may compromise, may involve the potential for compromising, or may have the appearance of compromising a faculty member's objectivity in meeting university duties or responsibilities, including research activities. The bias that such conflicts may impart can affect many university duties, including decisions about personnel, the purchase of equipment and other supplies, the collection, analysis and interpretation of data, the sharing of research results, the choice of research protocols, and the use of statistical methods. A faculty member may have a conflict of interest when he or she, or any member of that person's immediate family, has a personal interest in an activity that may affect decision making with respect to university teaching, research or administration.
As relationships between university faculty members and private industry, federal and state governments, and nonprofit agencies have grown in number and scope, there has been a corresponding increase in concern about conflicts of commitment and interest. While members of the faculty are encouraged to engage in appropriate relationships with public and private agencies outside of the university, there is a need for commonly understood principles and corresponding procedures that will identify and address conflicts that would detract from or interfere with a faculty member's dedication of primary professional loyalty, time and energy to university teaching, research and service. Although faculty members are the primary subject of concern, all other university employees similarly must, avoid conflicts of time and commitment.
13.2.4 External Professional Activities of Faculty and Professional Staff
ADMINISTRATIVE MEMORANDUM #333 Effective July 1, 1993
The Board of Governors of The University of North Carolina
POLICY STATEMENT ON EXTERNAL PROFESSIONAL ACTIVITIES OF FACULTY AND OTHER PROFESSIONAL STAFF
SECTION 1. UNIVERSITY POLICY
The University of North Carolina and its constituent institutions seek to appoint and to retain, as faculty and other professional staff members, individuals of exceptional competence in their respective fields of professional endeavor. Because of their specialized knowledge and experience, such persons have opportunities to apply their professional expertise to activities outside of their University employment, including secondary employment consisting of paid consultation with or other service to various public and private entities. Through such practical, compensated applications of their professional qualifications, University employees enhance their own capabilities in teaching and research. Thus, participation of faculty and other professional staff members in external professional activities for pay, typically in the form of consulting, is an important characteristic of academic employment that often leads to significant societal benefits, including economic development through technology transfer. However, such external professional activities for pay are to be undertaken only if they do not:
SECTION 2. DEFINITIONS
SECTION 3. PROCEDURES GOVERNING EXTERNAL PROFESSIONAL ACTIVITY FOR PAY
SECTION 4. SPECIAL PROVISIONS
13.2.5 Political Activities of University Employees
WHEREAS, as private citizens all University employees retain the rights and obligations of citizenship, including freedom to engage in political activities; and
WHEREAS, certain types of activities by University employees related to governmental and political processes may be incompatible with the general responsibilities of public employment or with the particular responsibilities of University employment; and
WHEREAS, the Board of Governors on September 13, 1974, adopted policies concerning political activities pertaining only to certain designated employees of the University; and
WHEREAS, the Board deems it desirable to have one set of policies on this subject that will apply to all University employees, with exception only of those who are subject to the State Personnel System;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA: (Amended 2/8/85)
Violation of the prohibitions contained in subparagraphs a and b, above, shall be cause for appropriate disciplinary action, including discharge from employment.
Any questions concerning the interpretation and application of the amended Board policy may be addressed to the office of the UNC system President.
13.3 FORMS for Section 13.0
- External Professional Activities for Pay for Faculty
|Faculty Handbook -
Handbook for contracts dated prior to 7/1/03 (PDF)