Subject: Tenure in Non-Faculty Positions
The following policy of the Tennessee Board of Regents on tenure in non- faculty positions is applicable to all non-faculty employees tenured as of July 1983 in the technical institutes and area vocational-technical schools the governance of which transferred from the State Board of Education to the Tennessee Board of Regents pursuant to T.C.A. § 49-11-402. This policy should be incorporated in those personnel policy manuals by which each institution and school normally communicates policy to its employees.
All references in this policy to "institutions" includes area vocational- technical schools.
II. POLICY STATEMENT
Non-Faculty employees of Tennessee Board of Regents institutions who were previously granted permanent tenure by the Board of Education in positions at the area vocational-technical schools or state technical institutes under the authority of T.C.A. Section 49-5-501 retain their tenure if their employment at a Tennessee Board of Regents institution or school has been continuous since the transfer of the technical institutes and area schools to the Tennessee Board of Regents. The rights and procedures applicable to such employees are set forth in Part III below.
III. APPLICABLE RIGHTS AND PROCEDURES
A. Expiration of Tenure
Tenure status shall expire upon retirement of the employee. Tenure shall also expire upon the event of permanent physical or mental inability, as established by an appropriate medical authority, to continue to perform his/her assigned duties.
B. Relinquishment of Tenure
A non-faculty employee shall relinquish or waive his/her right to tenure upon resignation from the institution or school, or upon failure to report for service as scheduled which shall be deemed a resignation unless, in the opinion of the president/director, the employee has shown good cause for such failure to report.
C. Transfers and Reassignment of Duties
A non-faculty tenured employee does not hold tenure in a particular position. A tenured non-faculty employee may be transferred to any other position or may be reassigned any duties for which he/she is qualified. Upon transfer or reassignment, an employee's salary may be adjusted consistent with newly assigned duties. Adjustments in salary shall be made consistent with the provisions of any contract of employment.
D. Termination of Tenure for Reasons of Financial Exigency
Tenured non-faculty employees may be terminated as a result of financial exigency at an institution subject to Board declaration that such financial conditions exist. Such terminations shall be subject to the provisions below.
1. Definition of Financial Exigency - The formal declaration by the Tennessee Board of Regents that one of its institutions faces an imminent financial crisis, that there is a current or projected absence of sufficient funds (appropriated or non- appropriated) for the campus as a whole to maintain current programs and activities at a level sufficient to fulfill its educational goals and priorities and that the budget can only be balanced by extraordinary means which include the termination of existing and continuing academic and nonacademic appointments.
2. Procedure for Termination - Personnel decisions (including those pertaining to tenured employees) that result from a declaration of financial exigency at a Board of Regents institution will comply with Board Policy on Financial Exigency (5:02:06:00).
E. Termination of Tenure for Reasons of Restructure of Institution
A tenured non-faculty employee may be terminated as a result of a reorganization of the institution or department, division or school within the institution. Upon determining that termination of one or more tenured non-faculty employees is warranted, the president/director shall base his/her decision about which employee is to be terminated upon his/her assessment as to what action would least seriously compromise the efficient and effective administration of the department, division and/or institution or school. In his/her discretion, the president/director shall utilize the following considerations which shall not be construed as mandatory in determining the order of reductions in a department, division or institution or school: level of relevant educational background, length of relevant experience, effectiveness in performance of assigned responsibilities as reflected in performance evaluations and other objective measurements of performance.
1. Upon determining that termination of one or more tenured non- faculty employees is required due to reasons cited above, the president or director shall furnish each employee to be terminated a written statement of the reasons for the termination. Those reasons shall address fully the circumstances which warrant the termination and shall indicate the manner and the information upon which the decision as to the employee to be terminated was reached. The president's/director's written statement shall also indicate that the employee has the opportunity to respond in writing stating any objections to the decision.
2. If a tenured non-faculty employee who is to be terminated indicates objections to the president's/director's written statement and requests a review, the president/director will appoint a committee of three (3) *non-faculty employees (who have no personal interest in the outcome) which shall conduct a hearing on the proposed termination or terminations. The hearings shall be limited to the issue of whether this policy was consistently and properly applied to the specific employee involved. The committee shall report its findings and recommendations to the president/director, who shall, within a reasonable time, inform the employee proposed to be terminated in writing either that the decision for termination stands or that it has been altered.
3. The president's/director's decision to terminate a tenured non-faculty employee for reasons under this section may be appealed to the Chancellor and the Board pursuant to the policy on Appeals to the Board (TBR Policy No. 1:02:11:00).
4. When a tenured non-faculty employee is terminated due to a reorganization he/she shall be given preference for appointment for any position requiring the same qualifications and responsibilities for a period of one (1) year from the date of termination provided the terminated employee applies for the position and attaches a request for such preference to his/her application. Any previously terminated tenured non- faculty employee who is reappointed may be appointed at his/her previous salary (with the addition of an appropriate increase which, in the opinion of the president/director, would constitute any increase in salary that would have been awarded during the period that he/she was not employed).
* For area vocational-technical schools, the director may appoint faculty members in lieu of non-faculty employees as needed to ensure an appropriate number of unbiased members on the committee.
F. Termination for Adequate Cause
A tenured non-faculty employee may be terminated for adequate cause subject to the following provisions.
1. Adequate cause includes the following:
c. Conviction of a felony or a crime other than a misdemeanor unrelated to the ability of the employee to perform his/her duties and responsibilities in an effective manner.
d. Willful failure to perform the duties and responsibilities for which the employee was employed, or refusal or continued failure to comply with the policies of the Board, institution or department/division or to carry out specific assignments when such policies or assignments are reasonable and nondiscriminatory.
e. Improper use of narcotics and/or intoxicants which substantially impairs the employee's ability to perform his/her duties and responsibilities.
f. Capricious disregard of accepted standards of professional conduct.
g. Falsification of information on an employment application or other information concerning qualifications for a position.
h. Failure to maintain the level of professional excellence and ability demonstrated by other members of the institution or department/division.
2. Procedures for Termination for Adequate Cause - The following procedure shall be followed in termination of a tenured non- faculty employee for adequate cause.
a. No termination shall be effective until steps d through j below have been completed.
b. Suspensions pending termination shall be governed by the following procedure.
1) A tenured non-faculty employee may not be suspended pending completion of steps d through j unless it is determined by the institution that the employee's presence poses a danger to persons or property or a threat of destruction to the academic or operational processes of the institution. Reassignment of responsibilities is not considered suspension; however, the employee must be reassigned responsibilities for which he/she is qualified.
2) In any case of suspension, the employee shall be given an opportunity at the time of the decision or immediately thereafter to contest the suspension; and if there are disputed issues of fact or cause and effect, the employee shall be provided a hearing on the suspension as soon as possible at which the employee may cross-examine his/her accuser, present witnesses on his/her behalf and be represented by an attorney. Thereafter, whether the suspension is upheld or revoked, the matter shall proceed pursuant to these procedures.
c. Except for such simple announcements as may be required, concerning the time of proceedings and similar matters, public statements and publicity about these proceedings by either the employee or administration will be avoided so far as possible until the proceedings have been completed, including consideration by the Board.
d. Upon a decision by the president/director that these procedures shall be undertaken in consideration of the termination of a tenured non-faculty employee, one or more appropriate members of the administration shall meet privately with the employee for purposes of attempting to reach a mutually acceptable resolution of the problems giving rise to the proposed termination proceedings.
e. If a mutual resolution is not reached under step d, the president/director shall appoint a committee consisting of tenured faculty and/or non-faculty employees whose appointments should be, but are not required to be, agreed to by the employee. The committee shall conduct an informal inquiry of the facts giving rise to the proposed termination and seek a mutually acceptable resolution. Should no such resolution be reached, the committee shall recommend to the president/director whether in its opinion further proceedings should be taken in pursuit of the termination. The recommendation shall be in writing and shall be accompanied by reasons for the recommendation. The committee's recommendation shall not be binding on the president/director.
f. If no mutually acceptable resolution is reached through step e and/or if after consideration of the informal inquiry committee's recommendation the president/director determines that further proceedings are warranted to consider termination, the following steps shall be taken.
1) The employee shall be provided with a written statement of the specific charges alleged by the institution which constitute grounds for termination and a notice of hearing specifying the time, date, and place of the hearing. The statement and notice must be provided at least twenty (20) days prior to the date of the hearing. The employee shall respond to the charges in writing at least five (5) days prior to the hearing. The employee may waive the hearing by execution of a written waiver.
2) A committee consisting of non-faculty employees shall be appointed by the president/director to hear the case and to determine if adequate cause for termination exists according to the procedure hereinafter described. The committee may not include any member of the informal inquiry committee referred to in e above. Members deeming themselves disqualified for bias or interest shall remove themselves from the case, either at the request of a party or on their own initiative. Members of the committee shall not discuss the case outside committee deliberations and shall report any ex-parte communication pertaining to the hearing to the president/director who shall notify all parties of the communication.
g. The hearing committee shall elect a chairperson who shall direct the proceedings and rule on procedural matters, including the granting of reasonable extensions of time at the request of any party and upon the showing of good cause for the extension.
h. The chairperson of the hearing committee may in his/her discretion require a joint prehearing conference with the parties which may be held in person or by a conference telephone call. The purpose of the prehearing conference should include but is not limited to one or more of the following:
1) Notification as to procedure for conduct of the hearing.
2) Exchange of witness lists, documentary evidence and affidavits.
3) Define and clarify issues.
4) Effect stipulations of fact.
A written memorandum of the pre-hearing conference should be prepared and provided to each party.
i. A hearing shall be conducted by the hearing committee to determine whether adequate cause for termination of the employee exists. The hearing shall be conducted according to the procedures below.
1) During the hearing, the employee will be permitted to have an advisor present and may be represented by legal counsel of his/her choice.
2) A verbatim record of the hearing will be taken and a typewritten copy will be made available to the employee, upon request, at the employee's expense.
3) The burden of proof that adequate cause exists rests with the institution and shall be satisfied only by clear and convincing evidence in the record considered as a whole.
4) The employee will be afforded an opportunity to obtain necessary witnesses and documentary or other evidence. The administration will cooperate with the committee in securing witnesses and making available documentary and other evidence.
5) The employee and the administration will have the right to confront and cross-examine all witnesses. Where the witnesses cannot or will not appear, but the committee determines that the interests of justice require admission of their statements, the committee will identify the witnesses, disclose their statements, and if possible, provide for interrogatories.
An affidavit may be submitted in lieu of the personal appearance of a witness if the party offering the affidavit has provided a copy to the opposing party at least ten (10) days prior to the hearing and the opposing party has not objected to the admission of the affidavit in writing within seven (7) days after delivery of the affidavit or if the committee chairperson determines that the admission of the affidavit is necessary to insure a just and fair decision.
6) In a hearing on charges of incompetence, the testimony shall include that of qualified persons from the institution or other institutions of higher education.
7) The hearing committee will not be bound by strict rules of legal evidence and may admit any evidence which is of probative value in determining the issues involved. Every possible effort will be made to obtain the most reliable evidence available.
8) The findings of fact and the report will be based solely on the hearing record.
9) The president/director and the employee will be provided a copy of the written committee report. The committee's written report shall specify findings of fact and shall state whether the committee has determined that adequate cause for termination exists and, if so, the specific grounds for termination found. In addition, the committee may recommend action less than dismissal. The report shall also specify any applicable policy the committee considered.
j. After consideration of the committee's report and the record, the president/director shall notify the employee of his/her decision, which, if contrary to the committee's recommendation, shall be accompanied by a statement of the reasons. If the employee is terminated or suspended as a result of the president's/director's decision, the employee may appeal the president's/director's action to the Chancellor as provided in the policy on appeals (TBR Policy 1:02:11:00). Review of the appeal shall be based upon the record of hearing. If upon review of the record, the Chancellor notes objections regarding the termination and/or its proceedings, the matter will be returned to the president/director for reconsideration, taking into account the stated objections, and in the discretion of the president/director, the case may be returned to the hearing committee for further proceedings.
Source: TBR Meetings: September 18, 1987; June 25, 1993.