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Appendix D

Appendix D. Operating Procedures for Processing Initial Complaints Against Faculty and Administrators and Staff

 

INTRODUCTION

Without changing the substantive provisions of any College Policy or amending any provision of the Faculty/Administration Manual, this document will describe how certain complaints alleging inappropriate conduct or omissions by faculty, administrators and staff will be initially investigated.[1] 

These Operating Procedures (“Procedures”) specify the acceptable method for conducting initial investigations of the types of matters listed in Section 1.0 below.  The Procedures will also provide those managers making initial decisions on complaints (the “Decisional Authorities”) an improved opportunity to receive and review the facts and to discuss policy and legal implications at meaningful times prior to decision making.

With respect to the parties involved in the matter, it is intended that the Procedures will provide more information on “process” and the rights of both the Complainants (those alleging a policy violation) and Respondents (those alleged to have violated College policy). Similarly, these Procedures will afford supervisors and managers and the heads of affected operating units, such as department chairs, appropriate notice and an opportunity to provide input into the investigatory process.

Finally, it is expected that this standardization of the investigatory process will also promote consistency and uniformity in the type and content of communications sent to all concerned parties.

NOTHING CONTAINED IN THESE OPERATING PROCEDURES IS INTENDED TO MODIFY, AFFECT, OR REPEAL ANY COLLEGE POLICY, ANY PROVISION OF THE FACULTY/ADMINISTRATION MANUAL (“FAM”), OR ANY RIGHT TO A GRIEVANCE  PROCEDURE AS PROVIDED FOR UNDER THE FAM OR THE LAWS OF SOUTH CAROLINA AND RELEVANT REGULATIONS PROMULGATED PURSUANT THERETO.

1.       APPLICABILITY

1.1          Covered Policies -- This Procedure will be used to investigate initial complaints[2] concerning a matter, or an alleged violation of a policy, dealing with one or more of the following (each a “Covered College Policy”):

(a) the College Policies entitled, Prohibition of Discrimination and Harassment Including Sexual Harassment and Abuse, and the Consensual Relations Policy,  described in the FAM when an alleged violation of   that latter Policy is included within a claim of discrimination (collectively “Discrimination”);

(b) student grievances against faculty members or others (not covered under (a)), as described in the FAM, except that student grade appeals are not subject to investigation under these Procedures;

(c) Code of Professional Conduct and Statement of Professional Ethics, as described in the FAM (not covered under (a)); or

(d) legal regulatory compliance issues.

1.2          Other Matters -- Alleged violations of the College Code of Conduct and Disciplinary Actions not specifically covered under a policy listed in Section 1.1 may be investigated in a reasonable manner deemed most suitable under the circumstances by the immediate supervisor of the Respondent, if a disinterested party, and the Director of Human Resources. If the immediate supervisor of the Respondent is not a disinterested party the Director of Human Resources shall decide how the matter is to be investigated. Complaints may be initially conveyed to or filed with the immediate supervisor or Director of Human Resources, but if the immediate supervisor of the Complainant is not a disinterested party, complaints shall be filed with or presented to the Director of Human Resources.  In all circumstances, however, the Complainant and the Respondent shall be given a meaningful opportunity, at a meaningful time, to present their respective positions. 

1.3          Duty to Investigate – In the event that a Complainant discloses information that, if true, would constitute a violation of a Covered Policy, but then subsequently refuses to reduce his/her complaint to writing or to cooperate in an investigation, the Designated Official (see Section 2.0) or the investigator (see Section 3.0) shall consult with the General Counsel.  The Senior Vice President, after consultation with the appropriate Executive Vice President and/or the President, will determine the legal responsibilities of the College to proceed with an investigation under the attending circumstances.

 2.       ACCEPTANCE OF COMPLAINTS

 2.1          Designated Officials.         Except as provided below in Sections 2.2 and 2.3, alleged violations of a Covered Policy may be made to one or more Designated Officials (as appropriate) occupying the employment positions noted next to each matter listed immediately below in subsections (a) through (d).  Once received by a Designated Official, the matter will be referred to an investigator as provided for in Section 3.0.

                 (a)  Discrimination Complaints IncludingSexual Harassment and Harassment of Protected Groups – Complaints may be conveyed to or filed with:

(1)           Director of Human Relations (“HRel”): for Complainants who                are employees, students, College volunteers, College invitees or employees of College contractors alleging Discrimination on College owned or leased property (“College Property”).

(2)           An Associate Provost: for Complainants who are faculty and administrative staff employed by Academic Affairs and who elect not to file with the General Counsel, or Office of Equal Opportunity Programs and Minority Affairs. 

                                   (3)           Dean of Students: for Complainants who are students only.

                                    (4)           General Counsel: for all of the above.

                 (b)           Student Grievances for Other Than Discrimination Covered under Subsection (a)                                

(1)           With respect to a grievance against a faculty member made by a student for other than Discrimination, the Complainant/student may convey or file                a grievance with the Chair or            the Program Director of the unit that is the                employing office of the Respondent faculty member. 

(2)           Grievances against non-faculty members and other students should be brought to the attention of the Dean of Students or, if Discrimination by an employee is alleged by the student, to any one of those persons                 listed in (a) (1) through (4) above. 

(3)           In all cases concerning the alleged violation of a Covered Policy, however, the Dean of Students must transmit the complaint, or direct the student, to the appropriate Designated Official.  Such a referral does not preclude the Dean of Students from initiating proceedings under the Student Code of Conduct in cases when the alleged conduct would violate both a Covered Policy and the Student Code of Conduct.  In such a situation, and in the absence of exigent circumstances, the Dean of Students will await the outcome of the factual investigation before proceeding with a disciplinary hearing.

 

(c)           Code of Professional Conduct and Statement of Professional Ethics – Except for Discrimination, complaints may be conveyed to or filed with the appropriate Executive Vice President having responsibility for the area in which the Respondent is employed.  A complaint against an Executive Vice President or the General Counsel may be conveyed to or filed with the President.

(d)           Regulatory Compliance Issues – Complaints or disclosures of non-compliance with laws, rules, or regulations by College personnel, students, volunteers, or College contractors, or subcontractors or sub recipients of sponsored research, may be conveyed to or filed with the General Counsel or the appropriate Executive Vice President having responsibility for the area in which the Respondent is employed.  Violations of state or local criminal law may also be reported to the College’s Chief of Police. A complaint against an Executive Vice President or the General Counsel may be conveyed to or filed with the President.

2.2          The President -- Alleged violations of a Covered Policy by the President may be made to the Chair of the Board of Trustees, the Secretary of the Board, or to the General Counsel.

2.3          Board of Trustees -- Alleged violations of a Covered Policy by a Member of the Board of Trustees shall be made to the Chair of the Board of Trustees or to any other disinterested member of the Board.

2.4          Notice to the President -- In all circumstances the President shall be provided prompt notice of all allegations that a Senior or Executive Vice President has violated a Covered Policy.

3.       REFERRAL TO INVESTIGATOR

3.1          Referrals or Investigations by the Designated Officials -- Except as provided in Section 3.2, upon receipt of a complaint, a Designated Official shall refer the matter for investigation, or shall conduct the investigation, in accordance with the following:

         (a) Discrimination   --         

(i)            Alleged violations of the Policy on Prohibition of Discrimination and Harassment, Including Sexual Harassment and Abuse shall be referred to the Office of Equal Opportunity Programs and Minority Affairs for investigation, except as may otherwise be determined, in exceptional cases, by the General Counsel, the President, or the Board of Trustees.[3]

 

(ii)           When complaints of Discrimination involve both students and non-students, the Dean of Students and the Director of the Office of Equal Opportunity Programs and Minority Affairs shall consult and coordinate their respective activities. The Office of the Provost shall also be consulted if the complaint involves, or is likely to involve, issues of academic freedom, academic integrity, or other issues that may involve an academic matter. The Center for Disability Services will be consulted if the complaint involves, or is likely to involve, actual or apparent disabilities, within the meaning of the Americans with Disabilities Act or accommodations under that Act.

(b) Student Grievances for Other than Discrimination – 
Grievances lodged against a faculty member for other than Discrimination shall be referred to and investigated by the Chair of the Respondent faculty member’s employing department or unit in accordance with the provisions of the FAM.  Student grievances alleging a violation of policy by another student shall be investigated in accord with the Student Code of Conduct; complaints against administrative staff shall be investigated by those persons described in (a), (c), (d), (e) or (f) of this Section 3.0.

(c) Code of Professional Conduct and Statement of Professional Ethics – In the case of a complaint against a faculty member for unprofessional conduct (other than Discrimination), the Dean of the appropriate School, after consultation with the Office of the Provost, shall appoint a disinterested investigative review panel consisting of no more than three faculty members or academic administrators from the School to investigate the matter.[4]  The results of that investigation shall be reviewed and commented on by the Chair of the Respondent’s department or unit.  The Chair’s recommendation and comments shall be conveyed to the Dean for a decision or a recommendation to the Provost, as may be appropriate (see Section 7.0).  The decision or recommendation of the Dean shall be provided to the Chair, the Complainant, and to the Respondent faculty member. 

(d) Compliance Issues -- Compliance issues shall be investigated in a manner directed by the General Counsel after consultation with the President and/or the appropriate Executive Vice President, provided that if the Executive Vice President is an involved party in the challenged activity, the Senior Vice President shall consult only with the President. Complaints against the General Counsel shall be handled in a manner deemed most appropriate under the circumstances by the President.

3.2          All Complaints Dealing with the President or a Trustee -- Complaints against the President for a violation of a covered Policy shall be investigated and resolved in a manner deemed most appropriate under the circumstances by the Board of Trustees.  Complaints against a Trustee for a violation of a covered Policy shall be investigated and resolved in a manner deemed most appropriate under the circumstances by the disinterested Members of the Board.

3.3          Uncertainty Regarding Referrals for Investigation – In the event that a Designated Official is uncertain as to the proper person to whom a Complaint should be referred, the matter shall be referred to the General Counsel who shall consult with the appropriate Executive Vice President and/or the President prior to making a final decision on the appropriate referral.    

4.       INFORMAL RESOLUTION

4.1          Mediation – Except as provided for in Section 4.4, mediation is the preferred way to resolve most disputes between members of the College community.  In order for mediation to take place on any complaint, however, it must be mutually acceptable to both the Respondent and the Complainant. During the mediation, the investigator meets individually and/or with both parties, as appropriate. Either the Complainant or the Respondent may refuse mediation or, once commenced, end mediation at any time.  No adverse inference is to be drawn from any such decision to accept or reject mediation.  If a mediated compromise is reached between the parties, it must be approved by the investigator and the Executive Vice President in the supervisory chain. The Executive Vice President may consult, as appropriate, with affected supervisor(s) and others and shall seek legal advice from the General Counsel to resolve or discuss legal issues.

4.2          Interim Action – Upon receipt of a complaint, the investigator is to perform a preliminary assessment of the need for immediate interim action (e.g. removal, reassignment, administrative leave, or suspension). If the investigator believes that interim action is needed, the investigator is to provide notification to the Provost or other appropriate Executive Vice President and those in the supervisory chain, as may be appropriate under the circumstances. The recommended interim action, if approved by the relevant Executive Vice President (after consultation with the General Counsel), is to be taken by the Respondent’s supervisor or the first disinterested manager higher up in the supervisory chain.

4.3          Next Step -- If mediation is not feasible or appropriate under the circumstances, or if not successful within a reasonable period of time, the investigator is to commence a formal investigation.

4.4          Inappropriate Circumstances for Mediation -- The College will not agree to any mediated solution to a complaint, despite the wishes of the parties, when it has reason to believe that: (a) a sexual assault or any other form of violence has taken place; (b) the Complainant and the Respondent are so diametrically adverse in positions or have such conflicting views of an appropriate  solution that resolution by mediation seems unlikely; (c) there is an unreasonable risk of violence or intimidation by one party against the other; (d) the Respondent has been charged with a crime arising out of the event giving rise to the Complaint; or (e) for other good cause in the interest of the College, or the parties, as determined in the discretion of the investigator.

5.       FORMAL INVESTIGATION

5.1          Commencement -- The investigator shall first identify all provisions of applicable policies that may have been violated if the allegations made by the Complainant prove more likely true than not true.   Only those allegations that would, if true, constitute a violation of a Covered Policy should be investigated; and only evidence that tends to prove or disprove such allegations shall be considered relevant to the investigation.  If the investigator determines that even if all allegations prove true there would be no violation of a Covered Policy, the matter shall not be investigated.

5.2          Notice -- Except as provided in this Section 5.2, the investigator is to notify the Respondent that allegations have been made against him/her and the nature of the allegations.  The appropriate policy shall be cited and the Respondent shall be informed that retaliation in any form against the Complainant or a witness is strictly prohibited. The Respondent shall also be notified that s/he will have an opportunity to address the allegations and to submit evidence on his/her own behalf.   In exceptional cases, notification of the Respondent may be delayed if the investigator determines that such notification may put the Complainant or a witness at risk or impede the investigation.

5.3          Evidence --

 (a)          Fact Gathering -- The investigator is to conduct fact finding through interviews of the Complainant, the Respondent and other witnesses, the examination of written statements from the parties, the review of all relevant documents, and the consideration of any other evidence that would tend to prove or disprove the factual allegations.  Executive Vice Presidents are to take reasonable measures to assure that the investigator has access to witnesses, documents, and such other evidence as may be reasonably necessary under the circumstances to discover and consider relevant facts.  The investigator shall make notes of all interviews conducted as part of the investigation.

(b)           Counsel -- Witnesses, including the Complainant and the Respondent, may have legal counsel present at interviews, but counsel may not participate in the interview (that is, answer questions for, or ask questions on behalf of, their clients) and may be asked to leave the interview site if disruptive or causing an unreasonable delay in the conduct of the interview.  Prior to any such interview with counsel in attendance, the investigator shall notify the Senior Vice President of Legal Affairs and afford the Senior Vice President the opportunity to attend the interview.

(c)           No Inference -- A negative inference may not be drawn by the Respondent’s decision not to provide a statement or give an interview. In such event, the matter will be decided without the benefit of the Respondent’s participation.

 (d)           Interference – A member of the College community who interferes with an investigation conducted under these Procedures shall be subject to disciplinary action up to and including termination or expulsion, depending on the frequency or seriousness of the offense.

 5.4          Opportunity to Respond -- The Respondent must be given a meaningful opportunity, at a meaningful time, to respond to the allegations and present relevant evidence on his/her behalf during the initial investigation.

5.5          Time Estimates – The investigator shall conduct an investigation in a manner and within a timeframe most appropriate to the circumstances, taking into account pending workload requirements, other assigned cases, and the complexity of the individual complaint being investigated.  Upon inquiry by either the Complainant or the Respondent, the investigator shall give a good faith estimate of when the Report of Investigation will be completed.

5.6          Facilitators – If the investigator, in the exercise of her/his sole discretion, determines that the appointment of a “facilitator” would be of assistance to the investigator in the conduct of the matter under investigation, the investigator may request the appropriate Executive Vice President to appoint a disinterested employee to assist the investigator.  Such assistance may include, but not be limited to, gathering relevant documents, arranging for the interview of potential witnesses, and keeping the Complainant and the Respondent informed of the progress of the investigation and its expected time of completion.  All facilitators shall be subject to the direction of the investigator and shall sign an appropriate confidentiality agreement prepared by OLA prior to performing any services under this Section 5.6.

5.7          Pending Criminal Matter – Generally, a College investigation will not be postponed if the Complainant or Respondent has been charged with a crime arising out of an event related to the Complaint. In each such circumstance, the OLA shall be notified of the criminal matter and will decide, on a case-by-case basis, whether exceptional circumstances exist to warrant delaying the investigation of the matter.

5.8          Personal Advisers

 When investigations are conducted under the authority of either the Prohibition of Discrimination and Harassment, Including Sexual Harassment and Abuse Policy or the Consensual Relations Policy both the Complainant and the Respondent shall be allowed to have one personal adviser to accompany them throughout all phases of the investigatory process following the making of a complaint.  This courtesy, however, shall be subject to all of the terms and conditions stated in Section 6.5 of the Prohibition of Discrimination and Harassment, Including Sexual Harassment and Abuse Policy.

6.       REPORT OF INVESTIGATION

6.1          Issuance of a Report of Investigation (the “Report”) by the Investigator -- The content of the Report shall be principally confined to the allegations, the applicable Covered Policy, and the findings and conclusions of fact. No legal conclusions are to be presented in the Report as to the applicability of any law, or whether any law was violated; except that, the Report must state that retaliation is a violation of both law and College policy.  The Report shall contain at least the following five sections:

                                (a)           the allegations;

                                (b)           the applicable policy or policies involved;

(c)           the method of investigation, including  a list of witness interviewed,                         documents reviewed and other evidence considered;

                                (d)           findings of fact; and

                                (e)           factual conclusions.

 

6.2          Office of Legal Affairs -- The Report is to be forwarded to the Decisional Authority through the Office of Legal Affairs (“OLA”). OLA may not amend the Report in any way, but may prepare a legal memorandum for use by the Decisional Authority to accompany the Report.  The memorandum will be protected by privilege and will contain a legal review and an explanation of the range of options legally available to the Decisional Authority under the circumstances.   The memorandum may also indicate the rights, if any, that the Respondent may have to address any proposed conclusion and discipline prior to the issuance of a final decision.

6.3          The Record – The Report and all its exhibits and referenced materials, as well as, newly discovered evidence, as described in Section 8.3, shall be the official record of the investigation.  The investigator, however, may summarize voluminous evidence in the Report, with appropriate references, provided that the Decisional Authority is advised of his/her authority and opportunity to review the entire record.

6.4          Maintenance of the Record – After the investigation has been completed and the matter has been closed, the official record of the investigation, the Report of Investigation and the disposition of the Decisional Authority shall be maintained in the Office of the investigator.  These materials shall be available to: (a) the Complainant and the Respondent, with such redactions as may be required under law; (b) the investigator, the Decisional Authority, and the OLA; and (c) such third parties who may have a legal right to access such materials, in whole or in part, as determined by the General Counsel.

7. DECISIONAL AUTHORITY

7.1          Responsibilities -- The initial Decisional Authority is the manager who receives the Report of Investigation and who initially opines on whether the Respondent has violated the relevant Covered Policy and, if so, the nature and extent of the discipline and/or remedial action to be imposed or recommended to a higher management authority (the “Initial Decisional Authority”).  The decision must contain a determination as to the material facts established by the record (deemed more probably true than not true), whether the established facts constitute a violation of the Covered Policy and, if so, what discipline and/or remedial action is to be imposed or recommended. In lieu of a decision, the matter may also be remanded by the Initial Decisional Authority to the investigator for more investigation.   All decisions regarding a policy violation must be based solely on the Report of Investigation.

7.2          Decisional Authorities -- The Initial Decisional Authorities for the matters listed below are as follows:

(a)           Discrimination or Code of Professional Conduct and Statement of Professional Ethics

                                                (i) If a Faculty member is the Respondent -- The Initial Decisional Authority is the relevant Chair or Dean.

                                                (ii) If the Respondent is Administrative Staff -- The Initial Decisional Authority is the first supervisor in the
                                                     supervisory line of the  Respondent who is at the level of an Associate Vice President or higher.

                           (b)           Student Grievances --

(i)Against Faculty Members for other than Discrimination – These grievances shall be initially decided by the Chair of the relevant department and appeals from that decision are to be resolved by the appropriate Dean.  Subsequent proceedings, if any, are to be conducted in accordance with the FAM. 

(ii)Against Administrative Staff -- Student grievances against administrative staff based on alleged Discrimination or violation of the Code of Professional Conduct and Statement of Professional Ethics shall be treated under the procedures provided for under subsection (a) of this Section 7.2.

(iii)Against other Students – These matters shall be resolved by the Dean of Students under the Student Code of Conduct or as provided for under a Covered Policy, whichever is more appropriate under the circumstances.

 

7.3          Automatic Disciplinary Reviews -- Disciplinary action against Faculty or Administrative Staff that is more severe than an oral or written reprimand must be approved by the appropriate Executive Vice President.  In such a case, the lower level supervisors shall forward the Report, the OLA legal memorandum and his/her recommendations to the appropriate Executive Vice President.  Notification of the recommendation submitted to the Executive Vice President shall be provided to the Complainant and the Respondent to afford each of them an opportunity to comment on the recommendations directly to the Executive Vice President.

7.4          Compliance Issues – Legal opinions regarding whether the College has acted in a manner inconsistent with laws, rules, or regulations shall be made by the General Counsel and shall be provided to such person(s) as may be appropriate under the circumstances.

8. APPEALS

8.1          Generally -- An appeal is not a grievance proceeding.  Rather, it is a request that the appropriate higher level manager in the supervisory chain overturn or modify an action taken by an initial Decisional Authority or decline to follow the recommendation of the initial Decisional Authority.  

8.2          Non-Appealable Matters -- Verbal or written reprimands and the findings on which they are based are not appealable.  In the case of a written reprimand, however, the Respondent may be permitted to include in her/his official personnel file a response to the written reprimand, provided that such response, in the opinion of the appropriate Executive Vice President upon consultation with the General Counsel, is relevant, does not defame any person or the College, respects the privacy rights of students, and avoids expletives and pejorative language.  

8.3          Special Considerations -- Decisions on appeal shall be based solely on the Report of Investigation, except that, an appeal may also raise the following issues:

(a) newly discovered evidence that was previously unknown and not reasonably discoverable at the time of the initial investigation and that could affect the outcome; or

(b) an irregularity in the process that affected the finding of a material fact or that could have otherwise affected the outcome.

8.4          Standard of Review -- Upon an appeal, the findings of the Decisional Authority will be overturned only if the Appeal Authority determines that there was no circumstance under which a reasonable person could reach the same factual conclusion based on the Record, as it may be modified under section 8.3. The sanctions imposed in a case will not be modified unless the Appeal Authority determines that they are materially disproportionate to the severity of the violation or not supported by the factual conclusions of the Initial Decisional Authority.

8.5          Termination of Tenured Faculty – Nothing contained in these Procedures is intended to indicate that the standard for the termination of a tenured faculty member is other than “clear and convincing evidence in the record considered as a whole,” as provided for in the FAM.

9. ASSISTANCE

Upon request, investigators and Decisional Authorities shall be provided legal assistance by the Office of Legal Affairs.

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[1] For ease of convenience, in this document administrators and staff will be collectively referred to as “administrative staff.”

[2] For purposes of these Procedures a “complaint” or a “grievance” may be used interchangeably to indicate one or more allegations made by a complaining party that would trigger an initial factual investigation by the College to determine facts relevant to a determination of whether a member of the College community has violated a covered Policy.  Students, faculty, administrators, staff, trustees and College volunteers are considered to be members of the “College community”.  Claims of improper conduct by students, however, will be investigated and resolved in accord with the Student Code of Conduct.

[3] For the purposes of this subsection only, an exceptional case will be deemed to exist if, for example, the respondent is a dean or a member of the President’s Executive Team.

[4] In exceptional circumstances the Provost may determine, in the exercise of her/his discretion, that fundamental fairness would be better served by appointing a panel outside of the School to conduct the investigation.