Chapter 29 – Hearing Regulations for Alleged Violations of Regents Rules

(Regents 5/10-11/73)

29.1 Scope

These regulations establish procedures for adjudicating cases involving alleged violations of the Uniform Rules of Personal Conduct at Universities under Jurisdiction of the Board of Regents, State of Iowa, as revised by the Board of Regents in June of 1971, and as such rules may be revised subsequently.

29.2 Definitions

As used in these regulations, each of the following words has the indicated meaning:

  1. "Faculty member" means an individual holding an academic appointment with the rank of instructor, assistant professor, associate professor, or full professor, and such other individuals, who may hold various titles, as may be defined as faculty member by action of the Faculty Senate, with the concurrence of the President. For purposes of the notice and review provisions of these regulations:
    1. full-time faculty members who fall within the definition of "student" in subsection b of this section shall be treated as faculty members; and
    2. part-time faculty members who fall within the definition of "student" in subsection b of this section may elect to be treated as faculty members or students. If such a part-time faculty member fails to exercise the option within three days of the sending of Notice of Charges, he or she will be classified as a faculty member.
  2. "Student" means a person who is currently registered as a student at the University in an undergraduate, graduate, or professional program on campus.
  3. "Staff member" means any person not a member of the faculty who is employed by the University. For purposes of the notice and review provisions of these regulations:
    1. full-time staff members who fall within the definition of "student" in subsection b of this section above shall be treated as staff members; and
    2. part-time staff members who fall within the definition of "student" in subsection b of this section may elect to be treated as staff members or students. If such a part-time employee fails to exercise the option within three days of the sending of Notice of Charges, he or she will be classified as a staff member.
  4. "President" means the chief executive officer of the University or any person designated by the President to act on his or her behalf for purposes of these regulations.
  5. "Academic Officer" means the chief academic officer of the University under the President (Executive Vice President and Provost) or the person designated by the Academic Officer to perform certain functions on his or her behalf for purposes of these regulations.
  6. "Rules" mean the Uniform Rules described in II-29.1 of these regulations.

29.3 Hearing Officers

  1. List of Hearing Officers. The American Arbitration Association, or other similar neutral body, will be asked to provide the President with the names of fifteen persons from institutions of higher learning other than Regents institutions who have earned law degrees or have experience as hearing officers, arbitrators, or mediators, and have consented to serve the University as hearing officers.

    The President shall forward the list to the Faculty Senate, the Staff Council, and the Student Senate. Each group may strike from the list up to three of the persons named. The President shall be informed of the decision to strike within two weeks of the list being forwarded. Those whose names remain on the list after the two-week period shall constitute the hearing officer list.

    If at any time membership on the hearing officer list falls below five, the President will ask for a new list of fifteen qualified persons from the American Arbitration Association, the selection process will be repeated, and the remaining names will be added to the existing list.
  2. Drawing and Challenges. When a case is to be heard, the presiding officer of the appropriate Judicial Commission shall place the names of the members of the hearing officer list on separate slips and a drawing will be held, with the person whose name is drawn first being designated as hearing officer, subject 1) to the person so designated expressing a willingness to serve and 2) to a peremptory challenge by either the person charged or the Academic Officer. If the hearing officer selected feels that he or she would not be able to conduct an unbiased hearing, such person shall disqualify himself or herself. The person charged and the Academic Officer shall have one peremptory challenge which must be exercised within twenty-four hours of a name being presented to them.

    If the person selected expresses a willingness to serve, that person's name will be presented to the Academic Officer. If the Academic Officer does not exercise a peremptory challenge, his or her right to challenge shall be deemed waived, and the name will be presented to the person charged. If the person charged does not exercise a peremptory challenge, the person selected will be the hearing officer. If the person charged does exercise a peremptory challenge in such a situation, a new drawing will take place and the first person whose name is drawn and who indicates a willingness to serve will be the hearing officer.

    If when the name is presented to the Academic Officer, he or she exercises a peremptory challenge, a new name will be drawn, inquiry as to willingness to serve made, and the name of the person first drawn who expresses a willingness to serve will be presented to the person charged. If the person charged does not exercise a peremptory challenge, the person whose name was presented will be the hearing officer. If the person charged does exercise a peremptory challenge, a new drawing will take place, and the first person whose name is drawn and who indicates a willingness to serve will be the hearing officer.

29.4 Communications and Computation of Time Periods

  1. Communications prescribed by these rules may be sent by certified United States mail or by messenger. Methods in which evidence of receipt is obtained are preferred. Communications to a person charged shall be sent to the local address, a home or permanent address if one appears in the University records, and the University office address if current University records indicate that the person charged has such an address. If circumstances warrant it, communication should also be made by publication in an appropriate newspaper.
  2. In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins shall not be included. The last day of the period so computed shall be included, unless general University offices are not open on that day, in which event the period runs until the end of the next day during which general University offices are open. Communications by mail are deemed complete upon mailing.
  3. For good cause shown, any time period may be extended for a specific number of days or any proceeding continued to a specific date by the Academic Office or the hearing officer.

29.5 Status of Person Charged Pending Final Action

Pending final action on charges brought under the provisions of these regulations, the status of a person charged shall not be altered except as this may occur by actions of the President under emergency powers set forth in the Rules or as directed by a court order.

29.6 Right to Counsel

A person charged and the Academic Officer each may by represented by no more than two persons — legal counsel or other adviser — of his or her own choosing in all proceedings provided for the these regulations. If the person charged has been unable to obtain the assistance of legal counsel or other adviser, the presiding officer of the appropriate group — Faculty Senate if a faculty member is the person charged; Student Senate if a student is the person charged; Staff Council if a staff member is the person charged — shall attempt to obtain the services of a qualified person to assist the person charged in the preparation and presentation of his or her case. If after reasonable efforts counsel has not been obtained, the hearing shall proceed.

29.7 Initial Steps

  1. Complaints. A complaint that a person has violated the Rules may be filed with the Academic Officer by any person, or a complaint may be initiated by the Academic Officer.
  2. Preliminary Actions. If a complaint has been filed with the Academic Officer, the Academic Officer shall make such brief investigations as may be necessary to decide whether probable cause exists to believe that the person about whom a complaint has been made has violated the Rules. The Academic Officer's investigation ordinarily shall be completed within thirty days following receipt of the complaint. During the period of investigation, the Academic Officer may discuss the matter with the person about whom allegations have been made and reach a mutually acceptable settlement of the matter.
    1. If, at this time or any later time, the Academic Officer decides that probable cause does not exist, he or she shall notify the complainant and the matter will be deemed closed.
    2. If the Academic Officer decides that probable cause does exist, he or she shall formulate a Notice of Charges as provided in paragraph (c) of this section.
  3. Notice of Charges. The Notice of Charges shall quote the rule or rules asserted to have been violated, shall set forth in reasonable detail the reported circumstances of the alleged misconduct, shall set forth the sanction the Academic Officer plans to recommend to the hearing officer, and shall describe the options available to the person charged under these procedures. A copy of the Notice shall be sent to the person charged, the presiding officer of the faculty, student, or staff Judicial Commission, depending upon the group from which the person charged comes, and to the complainant if other than the Academic Officer. The Notice of Charges shall include a copy of these regulations and of the Rules.

29.8 Hearing Option

Within ten days from the date of the Notice of Charges, the person charged may, by notice in writing to the Academic Officer, indicate his or her decision to have the charges adjudicated by a hearing officer.

29.9 Failure to Respond

  1. If the person charged fails within ten days to give the notice called for in II-29.8 above, the Academic Officer, at his or her discretion, shall take one of the following actions:
    1. notify the person charged that the case is being referred to a hearing officer for adjudication; or
    2. notify the person charged that the sanction listed in the Notice of Charges, or a lesser sanction, will be imposed. In such a case, the matter shall be deemed closed.
  2. A person on whom a sanction is imposed under the provisions of subsection a(2) of this section may request that the Review Panel set aside the sanction on the ground of failure in fact to have received notice. The Review Panel may set aside the prior action and order a new proceeding only if it finds 1) that reasonable doubt exists that notice was received, and 2) that the person charged acted in good faith in that he or she took no action to avoid receiving notice.

29.10 Informal Discussions with Academic Officer

At any time prior to final action, the person charged may arrange a conference with the Academic Officer to discuss the case. If agreement is reached between the person charged and the Academic Officer, a written statement of the disposition of the case shall be prepared and signed by the person charged and by the Academic Officer. A copy of the settlement agreement will be forwarded to the appropriate faculty, student, or staff Judicial Commission.

29.11 Proceedings Before Hearing Officer

  1. Within seven days of having been appointed, the hearing officer shall notify the parties in writing of the time, date, and place of the hearing. The hearing shall be scheduled no earlier than five days after the date such notice is mailed. The hearing officer may require the parties to provide in advance of the hearing the names of witnesses who will be called by the parties and list of all other items which will be submitted in evidence. If such information is required, it shall be made known to the other party at least two days before the appearance of the witnesses or the submission of the evidence. The two-day rule does not apply to witnesses who may be called for rebuttal purposes. In his or her discretion, the hearing officer may waive the two-day rule where it appears that such waiver will not prejudice the party not calling the witness or submitting the evidence. If any prejudice seems likely, the hearing shall be delayed for an appropriate period so that prejudice will be avoided.
  2. Open Hearings.
    1. Unless the person charged or the Academic Officer requests otherwise, the hearings will be open. The party requesting that the hearings be closed shall notify the hearing officer and the other party of this desire at least forty-eight hours in advance of the hearing. After hearing arguments from the person charged and the Academic Officer on the request to close the hearings, the hearing officer, in his or her discretion, shall decide whether or not the hearings should be closed. The question whether the hearing shall be open or closed shall be the first issue to be considered.
    2. At the request of either party made prior to the commencement of the hearing, the hearing officer will exclude prospective witnesses, other than parties, from the hearing room during testimony of other witnesses.
  3. The hearing officer shall preside over the hearing and shall rule on all questions regarding the conduct of the hearing, including the admissibility of evidence.
  4. The failure of the person charged to appear shall not be taken as indicative of guilt and shall not prejudice his or her case in any way. The hearing officer may proceed in the absence of any party who, after due notice, fails to be present or who has been excluded from the hearing because of disruptive conduct.
  5. The hearing officer shall have the power to have removed from the hearing any person who disrupts the proceedings. If a party to the proceeding or the adviser or counsel of such party, or any or all of them, are ordered removed for actions disrupting the proceeding, all reasonable efforts shall be made to keep them informed about the proceeding. The hearing officer, in his or her discretion and in the absence of a request from either party, has the authority to close the hearing if in the judgment of the hearing officer it seems likely that the hearing, once disrupted, will again be disrupted. The hearing officer's decision to close the hearing to persons who are not parties, counsel, or advisers shall be in his or her discretion and shall not be subject to review. The hearing officer's decision to order from the hearing persons who are parties, counsel, or advisers shall be subject to review by the appropriate review panel and shall constitute reversible error if the record shows that the hearing officer acted unreasonably in the circumstances.
  6. A tape recording or stenographic account shall be made of the hearing, except that on order of the hearing officer procedural matters may be discussed off the record. After the time for all administrative reviews has elapsed, the recording or stenographic account shall be turned over to the presiding officer of the appropriate Judicial Commission who shall keep it for one year and shall make it available under his or her supervision to all parties in the case.
  7. The Academic Officer shall have the burden of proving the alleged violation and shall present evidence first. The Academic Officer's burden of proof shall be satisfied only by clear and convincing evidence in the record considered as a whole.
  8. The parties may offer such evidence as they desire and shall produce such additional evidence as the hearing officer may deem necessary to an understanding and determination of the dispute. The hearing officer shall be the judge of the relevancy and materiality of the evidence offered. Conformity to the legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of the parties, except where a party is absent by default or is excluded for cause. The hearing officer may require University officers and employees to produce records or other exhibits if such records or exhibits are not confidential under state or federal law. Upon request, the hearing officer shall exclude evidence acquired in violation of the search and seizure provisions of the United States and Iowa constitutions if such evidence would be excluded in a criminal proceeding in a federal or state court.
  9. The parties and their legal counsel or advisers may present witnesses and examine them, and cross-examine all witnesses called by the other party. In his or her discretion, the hearing officer may limit the number of witnesses to be heard where it is clear that additional witnesses will not add new information for the record.
  10. If the person charged elects to testify, he or she shall be subject to cross-examination. The person charged may not be required to testify, however.
  11. The hearing officer may receive and consider written statements of persons unable to appear as witnesses. Such statements may be given whatever weight appears appropriate, but before a written statement is given any consideration, the party not introducing it shall receive a copy of the statement and be given a reasonable opportunity to obtain answers to written interrogatories submitted to the person whose written statement is offered. If the written interrogatories are submitted and, in the judgment of the hearing officer, are not answered in a timely and satisfactory manner, the statement shall not be received in evidence.
  12. In his or her discretion, the hearing officer may grant adjournments and continuances upon the request of a party or upon the hearing officer's own initiative.
  13. The hearing officer shall inquire specifically of all parties whether they have any further proofs to offer or witnesses to be heard prior to the ending of the hearing. If briefs are to be filed, the hearings shall be declared ended as of the final date set by the hearing officer for the receipt of briefs.

29.12 Raising the Issue of Enforceability

If a person charged wishes to challenge the constitutionality or legality of any Rule or regulation on which a charge is based, notice of this fact shall be given to the appropriate presiding officer prior to any hearing. The presiding officer will then set the case for argument before the entire Judicial Commission on this issue, and may request that the parties submit written briefs. If a majority of the Judicial Commission concludes that the Rule or regulation at issue is unconstitutional or illegal, the Judicial Commission shall make that fact known to the President, and request a determination of the issue by the President prior to remanding the case to the hearing officer for an adjudication on the facts. If the President decides that the Rule or regulation is constitutional and legal, the hearing officer and the review panel will accept that decision and apply the Rule or regulation as written. If the days of the notice of challenge being submitted to the presiding officer, the Rule or regulation being challenged shall be deemed constitutional and legal, and an adjudication on the facts shall proceed.

While the failure to raise the issue of constitutionality or legality as provided in this section shall preclude the person charged from raising the issue in proceedings under these regulations, it shall not be deemed to preclude the person charged from raising such an issue in any judicial proceeding he or she may institute to challenge the Rules and regulations or any sanctions imposed under them.

29.13 Recommended Decision

Within thirty days of the conclusion of the hearing, or from the time set for the submission of briefs if later, the hearing officer shall render a decision in the form of a recommendation to the President. In extraordinary circumstances, the decision may be rendered after the thirty-day period but in no event shall the decision be rendered more than forty-five days after the conclusion of the hearing. The hearing officer's decision shall include 1) findings of fact, 2) conclusions with respect to violation of the Rules drawn from such findings, and 3) recommended sanctions, requirements, or remedial action, if any. The written report of the hearing officer shall be distributed to the person charged, the Academic Officer, the President, and the presiding officer of the appropriate Judicial Commission, depending upon whether the person charged is a faculty member, student, or staff member.

29.14 Sanctions

  1. General. Sanctions must be consistent with the provisions of the Rules. Any suitable combination of sanctions may be imposed.
  2. Types of Sanctions.
    1. Letter of warning or censure.
    2. Denial or specified privileges for specified periods.
    3. Assessment of monetary damages to cover expenses incurred in restoring property of the University which was damaged or destroyed as a result of misconduct by the person charged.
    4. Assignments of specific tasks for the betterment of the University community.
    5. Suspension for a specific period to time.
    6. Dismissal from employment or expulsion from the University.

29.15 Reopening of Hearings

At any time prior to the rendering of a decision by the hearing officer, a hearing may be reopened by him or her on motion of either the person charged or the Academic Officer, if such motion is accompanied by a showing of good cause. Such showing is limited to either the discovery of new evidence or the existence of substantially changed circumstances.

29.16 Review

If the person charged wishes a review of the decision of the hearing officer, the following procedures shall be followed:

  1. Request for Review. Within ten days from the date of the report of the hearing officer, the person charged may submit a written request for review to the presiding officer of the appropriate Judicial Commission — the faculty Judicial Commission if a faculty member has been charged; the staff Judicial Commission if a staff member has been charged; the student Judicial Commission if a student has been charged. A copy of the request shall be sent to the Academic Officer and the hearing officer. For good cause shown, the presiding officer of the Commission may grant a ten-day extension of the ten-day time limit. If he or she does so, the presiding officer shall inform the Academic Officer of the decision and the reasons for it. In the request for review, the person charged should specify whether the request is for a review of the conclusions, or of the recommended sanctions, or both.
  2. Review Panels. The Faculty Senate, Student Senate, and Staff Council each shall create Judicial Commissions, from among whose members Panels shall be selected to hear requests for review of a hearing officer's decision. Such Panels shall consist of five members, with three persons constituting a quorum; shall be standing committees; and shall have standby members to sit if a member of the Panel is disqualified or unable to sit. The order in which standby members will be called on to serve shall be fixed at the time the Panels are constituted. A Panel member may be disqualified for cause, but no peremptory challenges shall be allowed. Challenges for cause shall be ruled on by the Chairman of the appropriate Judicial Commission. The Panel shall reach a decision within twenty-five days of a case being referred to it. If the Panel fails to reach a decision within the twenty-five-day period, the President will make a final decision on the basis of the hearing officer's recommendation.
  3. Basis for Accepting Requests for Review. Whenever a suspension, dismissal, or expulsion has been recommended by the hearing officer, the request for review by the person charged shall automatically be granted. In other cases, the person charged shall in his or her request for review set forth the grounds for believing the findings to be erroneous or the sanction unfair, or both. Such request shall be granted if two or more members of the Panel vote to accept the request.
  4. Additional Evidence. The Panel will review the case on the basis of the record of the hearing before the hearing officer. If the Panel deems the record of the proceedings before the hearing officer insufficient to permit it to review the case intelligently, the Panel may remand the case to the hearing officer for further proceedings. The remand order shall state specifically what additional evidence should be taken. A case may be remanded only twice and the rehearing by the hearing officer shall take place as soon as reasonably possible after the remand.
  5. Record of Hearing. The taped record or transcript of the hearing before the hearing officer shall be made available to the parties and to the Panel.
  6. Disposition. The Panel generally will hear oral arguments in cases on review, but may elect to decide the case on the basis of the taped record or transcript of the hearing before the hearing officer and written briefs. The Panel will be bound by the findings of fact made by the hearing officer, but not by the conclusions drawn from the facts or the sanctions recommended by the hearing officer. The presiding officer of the Panel will notify counsel and the parties of the date and place of the Panel hearing at least two days in advance of such hearings. The Panel may request written briefs, either before or after a hearing.
  7. Decision. The Panel shall render a written decision as soon as possible after the hearing, but at least within the twenty-five-day period mentioned above. The Panel's decision shall be in the form of a recommendation to the President.

29.17 President's Review and Decision

  1. After reviewing the record and recommendations of the hearing officer and the Panel, if the case has been reviewed by a Panel and the Panel has forwarded its recommendations within twenty-five days of the request for review, the President will determine what sanction or sanctions, if any, shall be imposed. In making such decision, the President shall give great weight to the recommendations of the Panel and shall be bound by the burden of proof standard established in II-29.11 of these regulations. There will be no oral argument before the President. Either party may submit an additional brief to the President, within five days of the matter being referred to the President. The President shall communicate his or her decision to the Chairperson of the appropriate Judicial Commission within thirty days of the case being referred to him or her. In the absence of a decision by the President within thirty days, the recommendation of the Panel, if one has been made, shall become the decision of the case; and the recommendation of the hearing officer shall become the final decision if the President fails to make a decision within thirty days and there is no timely recommendation from the Panel. In any event, the parties shall be informed in writing of the final disposition of the case ad of the fact that the decisions will be implemented, subject only to a decision by the Board of Regents to accept from the person charged a request for review.
  2. If the President accepts the recommendation of the Panel if one is submitted within the twenty-five-day period or imposes a lesser sanction than that recommended by the Panel, appropriate administrative action shall be taken to implement the decision and the case will be deemed closed, subject only to a decision by the Board of Regents to grant a request for review from the person charged. If the President rejects the recommendations of the Panel, the case shall be returned to the submitting Panel along with a written statement of the President's reasons for the action taken, a copy of which shall be provided to the person charged. Within seven days of receiving the case from the President, the Panel shall reconsider it and report its recommendation to the president. The President shall then make a final decision, giving great weight to the Panel recommendation, and have the decision implemented administratively. At this point, the case shall be deemed closed, subject only to a decision by the Board of Regents to grant a request for review from the person charged.

29.18 Review by the Board of Regents

Review by the Board of Regents is governed by III-31 Appeals by Employees to the Board of Regents, these sections containing the review policy of the Board of Regents as adopted in March of 1970. If the Board changes its review policy, the new review policy will be followed. The request for review by the Board of Regents must be made within fifteen days of the final decision referred to in II-29.17. If no such request is made, the matter shall be deemed closed and the final decision by the President will become the rule of the case.

29.19 Visitors

A person who is not a faculty member, student, or staff member who violates the rules and who later seeks to attain status as a faculty member, student, or staff member shall, at the time such status is requested, be subject to these procedures under the provisions governing a person holding the status requested. Thus, a person applying for a position on the faculty who requests review of a hearing officer's decision shall have his or her case reviewed by a faculty Panel; a person applying for status as a student who requests a hearing officer's decision shall have his or her case reviewed by a student panel; and a person applying for status as a staff member who requests a hearing officer's decision shall have his or her case reviewed by a staff member Panel.

29.20 Amendment

These regulations, having been approved by the Board of Regents, may be amended only by action of the Board of Regents. The Board agrees that no change shall be made in the regulations or the Rules prior to consultation with appropriate groups at the University.