Post-Investigation Procedures for Formal Complaints of Violations of Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence

Table of Contents

  • Introduction and Purpose
  • Scope
  • Parties
  • Standard of Proof, Burden of Proof, and Presumption
  • Sexual Misconduct Hearing Committee and Hearing Panels
  • The Complaint
  • Informal Resolution
  • Scheduling
  • Hearing
  • Decision
  • Appeal

Introduction and Purpose

This procedure describes post-investigation processes for the resolution of formal complaints of alleged violations of Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.  The goal of this procedure is to provide a fair process that facilitates the informal and formal resolution of formal complaints of sexual harassment, sexual assault, stalking, relationship violence, and related retaliation (collectively, “prohibited conduct”).

Scope

This procedure applies to the adjudication of formal complaints of violations of Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence

Parties

The parties to a formal complaint are the complainant and respondent, as defined in Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.  The complainant is the individual who may have experienced conduct prohibited by the policy, and the respondent is the individual alleged to have engaged in prohibited conduct.  In certain cases, there may be more than one complainant and/or more than one respondent.

The parties may be accompanied by an advisor of their choice at the hearing described in this procedure.  Advisors are permitted to make opening and closing statements and conduct direct and cross-examination at the hearing.  If a party does not have an advisor at the hearing, the University will provide an advisor for the purpose of conducting cross-examination.  The party to whom the advisor is provided may choose to allow the advisor to participate in other ways at the hearing, such as by make opening statements, making closing statements, or conducting direct examination.

The parties may also be accompanied at the hearing by a support person, who participates in the hearing in a non-speaking capacity.  A support person cannot be a fact witness in the case.

Standard of Proof, Burden of Proof, and Presumption

The standard of proof in all hearings governed by this procedure is “preponderance of the evidence,” which means that it is more likely than not that the respondent violated Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.

The burden of proof and the burden of gathering evidence sufficient to reach a decision on responsibility rest on the University.

The respondent is presumed to not be responsible for the alleged prohibited conduct.

Sexual Misconduct Hearing Committee and Hearing Panels

The Sexual Misconduct Hearing Committee (SMHC) is comprised of University members who serve as panelists for formal hearings.  Faculty, staff (including civil service, bargaining unit, and professional and administrative employees), and students from all five University campuses serve on the SMHC.  The SMHC Secretary provides administrative and scheduling support to the hearing process.

For each hearing, the SMHC Secretary appoints a hearing panel to decide whether it is more likely than not that the respondent violated Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.  Each hearing panel includes a hearing chair and four panel members.  At least one panel member will be of the same University classification (i.e., faculty, staff, or student) as the complainant, and at least one panel member will be of the same University classification as the respondent. 

All members of a hearing panel, including the hearing chair, are voting members.

The Complaint

The formal complaint and the campus Title IX office’s written notice to the parties of its decision to initiate an investigation identify the specific policy provisions the respondent is alleged to have violated and whether the alleged conduct has been designated as Title IX-based prohibited conduct.  The hearing panel must determine whether it is more likely than not that the respondent violated each policy provision encompassed by the formal complaint.

Informal Resolution

Following an investigation of a formal complaint, the campus Title IX office will deliver its investigation report to the SMHC Secretary. 

In cases involving a respondent who is a student, the SMHC Secretary will share the report with the campus office that addresses alleged violations of Board of Regents Policy: Student Conduct Code to determine whether that office will propose an informal resolution of the formal complaint.  In cases involving a respondent who is an employee or other non-student University member, the SMHC Secretary will share the report with the appropriate University Authority, as identified in Appendix B of Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence, to determine whether the University Authority will propose an informal resolution.  The SMHC Secretary will not seek a proposed informal resolution of allegations of Title IX-based prohibited conduct if the respondent is an employee and the complainant is a student.

If an informal resolution is not proposed, the matter will proceed to a hearing.  If an informal resolution is proposed, the SMHC Secretary will simultaneously share the investigative report and proposal with the parties, who may accept the informal resolution by notifying the SMHC Secretary in writing within 7 calendar days.  If both parties accept the informal resolution, the matter is considered fully and finally resolved.  If either party does not accept the informal resolution, the matter will proceed to a hearing.

Scheduling

If the parties have not been offered or have not agreed to an informal resolution, the SMHC Secretary will schedule a hearing. At least 10 calendar days prior to the hearing, the SMHC Secretary will send the parties a written notice of hearing that includes the following:

  • Investigative Report. If the parties did not receive a copy of the investigative report in connection with a proposed informal resolution, the SMHC Secretary will attach the investigative report to the written notice of hearing.
  • Details. The written notice of hearing will include the date, time, and location of the hearing and the parties to the hearing. The notice will advise that the purpose of the hearing is to determine whether the respondent violated the specific policy provisions identified in the formal complaint. The notice will indicate whether the hearing is scheduled to take place virtually (via an electronic platform) or in person. If the hearing is scheduled to take place in person, each party must notify the SMHC Secretary no later than 5 calendar days prior to the hearing if the party objects to an in-person hearing. If either party objects to an in-person hearing, the hearing will instead be conducted virtually.
  • Hearing Panel. The written notice will also identify the hearing chair and panel members. Each party has up to 5 calendar days to submit an objection to a panel member, along with a short statement of the basis for the objection. If an objection is lodged against a panel member, the hearing chair will decide if the panel member should be excluded from the panel and replaced. If the objection is to the hearing chair, the SMHC Secretary will decide if the hearing chair should be replaced and, if so, will arrange for the replacement. The SMHC Secretary will deliver, at a minimum, copies of all evidence relevant to the allegations in the complaint to each member of the hearing panel at least 5 calendar days before the hearing.
  • Witnesses. Each party must submit to the SMHC Secretary at least 5 calendar days prior to the hearing a list of all witnesses the party intends to question at the hearing. If the witness was interviewed by the campus Title IX office during the investigation process, the SMHC Secretary will contact the witness and invite the witness to the hearing. If the witness is one who was not interviewed during the investigation process, the party is responsible for contacting that witness and arranging for the witness to attend the hearing. The SMHC Secretary may also invite witnesses to appear at the hearing who were not identified by either party, if such witnesses were interviewed or invited to be interviewed during the investigation process. Witnesses are not obligated to attend the hearing.
  • Response. At least 5 calendar days prior to the hearing, each party may submit to the SMHC Secretary a written response to the investigation report for consideration by the hearing panel.
  • Evidence. After learning that the parties have not been offered or have not agreed to an informal resolution of a formal complaint, the SMHC Secretary will obtain from the campus Title IX office all evidence directly related to the allegations in the formal complaint that the campus Title IX office gathered as part of its investigation. The SMHC Secretary will provide this information to the parties and the hearing panel at least 5 calendar days in advance of the hearing. This information will not include 1) information subject to a legally protected privilege; or 2) medical treatment records offered without an individual’s voluntary, written consent.

    At least 5 calendar days prior to the hearing, each party must submit to the SMHC Secretary any new evidence the party plans to submit to the hearing panel that was not considered during the investigation process. The hearing chair will determine if the newly submitted evidence is directly related to the allegations in the formal complaint and, if so, the SMHC Secretary will make the newly submitted evidence available to the hearing panel and the other party at least two calendar days prior to the hearing.

  • Opportunity for Administrative Resolution. In all cases except those that involve a student complainant and a non-student employee respondent, the written notice of hearing will also offer the parties the opportunity to agree to resolve the case through an administrative process whereby the investigative report, the parties’ written responses to the investigative report (if any), and all evidence gathered by the campus Title IX office as part of its investigation of the formal complaint is submitted to the hearing chair to make a decision on responsibility and, as appropriate, disciplinary sanctions, as described below in the section entitled, “Decision: Written Determination.” Either party may appeal the Written Determination.

    Each party has up to 5 calendar days to agree to resolve the case through the administrative resolution process, which will be pursued only if all parties agree.

Hearing

Decorum

All hearings before the SMHC are governed by the following rules of decorum:

  • All electronic devices, other than devices necessary for participation in a hearing conducted virtually, must be turned off or silenced during the hearing.
  • When a hearing is conducted virtually, all participants must ensure that they are in a private, secure space for the duration of the hearing. Participants must mute their microphones unless they have an active speaking role (i.e., making opening or closing comments, conducting cross-examination, answering questions).  Participants must not turn off their cameras during the hearing. Parties must appear on camera throughout the hearing.
  • All participants must conduct themselves in a respectful manner at all times during a hearing. For example, participants may not yell, invade the personal space of other participants, badger witnesses, use profanity, engage in ad hominem attacks, ask the same question repeatedly, or otherwise ask questions in a manner that is harassing, intimidating, or abusive.
  • If a participant needs to leave the hearing for any reason, the participant must ask the hearing chair for a break in the proceedings.

The hearing chair has authority to ensure that the hearing is conducted in accordance with these rules of decorum.  If a party’s advisor does not comply with these rules, the hearing chair will require the party to use a different advisor.  If necessary, the University will provide the party with a new advisor to conduct cross-examination.

Accommodations

Any participant in this process who needs reasonable accommodations for a disability to participate in the process should request accommodations through the campus disability services office.

Record of Hearing

Hearings are closed to the public.  In certain limited circumstances, a third party may be permitted to attend a hearing, such as to provide reasonable accommodations for a participant with a disability or with agreement of the parties and the hearing chair.  The SMHC Secretary will record the hearing.  No other participant is permitted to create an audio, visual, or other recording of the hearing.

The University will maintain the record of the hearing, the formal complaint, all evidence presented at the hearing, and all other related documentation for the longer of seven years or the retention period required by Administrative Policy: Managing University Records and Information.

Appearance

Complainants, respondents, and witnesses are not required to attend the hearing.  If a party declines to attend the hearing, the party’s advisor may still attend the hearing and conduct cross-examination on behalf of the party, but may not otherwise participate in the hearing, other than in a non-speaking capacity.  If neither the party nor the party’s advisor attend the hearing, and the formal complaint includes a report of conduct that has been designated as Title IX-based prohibited conduct, the University will provide an advisor for the sole purpose of conducting cross-examination on behalf of the absent party.

Evidence Review Prior to Hearing

Prior to the hearing, the hearing panel will have reviewed, at a minimum, the formal complaint, the investigation report, all evidence gathered by the campus Title IX office during the investigation process that is directly related to the allegations in the formal complaint, and any additional evidence or written response to the investigation report submitted by a party that the hearing officer has determined is directly related to the allegations.

Case Presentation

The parties should prepare for a clear, complete, and concise presentation of their cases. Except in exceptional cases as determined by the hearing chair, each party will be limited to three hours for the presentation the party’s case.

Each party, either personally or through the party’s advisor, may present brief opening comments.  The hearing panel will then have the opportunity to ask any questions it has of the parties. The parties will be given the opportunity to present testimony and information relevant to the allegations in the formal complaint

The parties can offer witnesses at the hearing, and they should arrange for witnesses to offer live testimony, if at all possible.  If a witness chooses not to attend an in-person hearing, the witness can provide live testimony virtually.  If the formal complaint does not allege that the respondent engaged in Title IX-based prohibited conduct, a witness can also provide testimony by written statement.  After a party questions a witness, the other party and the hearing panel will have the opportunity to question that witness.  Witnesses are only allowed to attend a hearing during their testimony.

Finally, the parties, either personally or through each party’s advisor, can close their presentations with closing comments.

Direct examination and Cross-examination

Relevant questions may be asked during the hearing, including questions that challenge credibility.  Questions that are duplicative may not be considered relevant.  Questions concerning the complainant’s prior sexual behavior are also not relevant, unless they 1) are intended to elicit information that proves that the respondent was misidentified or 2) concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 

Before a party or witness answers any question, the hearing chair will state either that the question is relevant, in which case the party or witness can answer the question, or not relevant, in which case the question is excluded.  If the hearing chair excludes the question as not relevant, the hearing chair must state the reason for the determination.  Advisors for parties are allowed to state a position or objection related to the determination.

Cross-examination at the hearing will be conducted by the parties’ advisors.  The parties are not permitted to conduct cross-examination.  A party who declines to attend a hearing may have the party’s advisor attend the hearing for the purpose of conducting cross-examination.  If neither a party nor the party’s advisor attends the hearing, and the formal complaint includes a report of conduct that has been designated as Title IX-based prohibited conduct, the University will provide the party an advisor for the purpose of conducting cross-examination.

In a case where the respondent is alleged to have engaged in Title IX-based prohibited conduct and a party or witness declines to submit to even one relevant cross-examination question at the hearing, the hearing panel cannot rely on any statement of that party or witness in determining responsibility.  In the event that a party’s advisor states that the party does not have any cross-examination questions to ask the other party or witness, the hearing chair will ask the other party or witness if the other party or witness was prepared to submit to cross examination.  If the answer is “yes,” the hearing chair will afford the hearing panel an opportunity to ask any questions necessary for the hearing panel to test the credibility of the other party or witness.

Decision

At the close of the hearing, the hearing panel will deliberate in a session.  Only the hearing panel and the SMHC Secretary attend this session.

Decision-making

The hearing panel is tasked with the objective evaluation of all relevant evidence.  The hearing panel will assign little weight, if any, to character evidence concerning any party and to evidence of a party’s prior bad acts that are not substantially related to the conduct at issue.  It will assign this evidence the same weight whether it concerns a complainant or a respondent.  Similarly, the hearing panel will not make credibility determinations that turn on a participant’s status as a complainant, a respondent, or a witness.

In addition, the hearing panel will not draw any inferences based solely on a party’s or witness’s absence from the live hearing or refusal to answer questions.

The panel must make a decision on responsibility based on a preponderance of the evidence with respect to each policy provision the respondent is alleged to have violated.  The hearing panel need not be unanimous in its decision, but a majority of the panel members must agree for the respondent to be found responsible for a policy violation.

Written Determination

Both parties and their advisors will be simultaneously provided with the hearing panel’s written decision on responsibility and the University Authority’s written decision on disciplinary sanctions, if any.  Together, these written decisions on responsibility and disciplinary sanctions will constitute the “Written Determination” that may then be appealed by either party. 

The Written Determination will include the following:

  • the allegations of prohibited conduct;
  • a description of the procedural steps taken by the University from its receipt of the formal complaint through the Written Determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather evidence, and hearings held;
  • findings of fact supporting the decisions on responsibility and disciplinary sanctions;
  • conclusions regarding the application of this policy to the facts;
  • a statement of, and rationale for, the decisions on responsibility and disciplinary sanctions;
  • a statement of the decision on whether the University will provide remedies to the complainant; and
  • the University’s procedures and permissible bases for the parties to appeal the decisions on responsibility and disciplinary sanctions.

In cases with student respondents where the hearing panel finds a respondent responsible, the hearing panel is also the University Authority that will decide the appropriate disciplinary sanction, as provided in Board of Regents Policy: Student Conduct Code.  The hearing panel will then draft the Written Determination that will be provided simultaneously to the parties and their advisors by the SMHC Secretary. In addition, the hearing panel may make a recommendation to the campus Title IX office about remedies to be offered to a complainant, such as barring a respondent from participating in activities or class in which a complainant participates.  The hearing panel will strive to deliver its Written Determination to the SMHC Secretary so that the SMHC Secretary can provide the Written Determination simultaneously to the parties and their advisors within 10 calendar days of the hearing.  This Written Determination may be appealed by the parties.

In cases with faculty, non-student staff, or third-party respondents, the hearing panel limits its decision to whether it is more likely than not that a respondent violated Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.  Where no finding of responsibility is made, the hearing panel’s decision on responsibility is the Written Determination that is sent simultaneously to the parties and their advisors.  The hearing panel will strive to deliver its Written Determination to the SMHC Secretary so that the SMHC Secretary can provide the Written Determination simultaneously to the parties and their advisors within 10 calendar days of the hearing.  This Written Determination may be appealed by the parties. 

Where a finding of responsibility is made in a case with a faculty, non-student staff, or third-party respondent, the hearing panel may, at its discretion, make recommendations about disciplinary sanctions and other responsive actions, as well as a recommendation to the campus Title IX office about remedies to be offered to the complainant.  If the hearing panel is not unanimous in its recommendation on disciplinary sanctions, one or more of the dissenting panel members may draft a dissent that articulates alternative recommended disciplinary sanctions.  The hearing panel will strive to deliver its decision on responsibility and recommendation on disciplinary sanctions, along with any dissenting recommendations, to the SMHC Secretary within 10 calendar days of the hearing, and the SMHC Secretary will promptly deliver the hearing panel’s decision to the University Authority.  The University Authority will be offered an opportunity to meet with the hearing panel to discuss the hearing panel’s recommendation on disciplinary sanctions.  The University Authority will strive to make the decision on disciplinary sanctions within 21 calendar days of receipt of the hearing panel’s decision. 

Disciplinary sanctions and responsive actions may include the following:

  • coaching or education;
  • mentoring;
  • changes to work duties or locations;
  • monitoring to ensure that prohibited conduct is not occurring;
  • probation;
  • progressive disciplinary action;
  • transfer of position;
  • removal of administrative appointment;
  • demotion;
  • salary reduction;
  • suspension; and
  • termination of employment.

Third-party respondents may be barred from participation in University programs or access to University facilities. 

In cases with faculty, non-student staff, and third-party respondents where there is a finding of responsibility, the hearing panel’s decision on responsibility and the University Authority’s decision on disciplinary sanctions together form the Written Determination that will be delivered simultaneously to the parties and their advisors by the SMHC Secretary.  This Written Determination may be appealed by the parties.

Appeal

Any party may file a notice that the party intends to appeal a Written Determination within 10 calendar days of receipt of the Written Determination.  The notice must be in writing and submitted to the Appellate Officer.  Appeals that are not timely noticed will be denied.

The Appellate Officer will forward a timely filed notice of appeal to any other party.  The appealing party then has 10 calendar days to deliver to the Appellate Officer a letter that describes the basis for the appeal and any information in support of the appeal.  The Appellate Officer will forward this letter to any other party, who then has 10 calendar days to submit a written response to the letter.  The Appellate Officer has discretion to ask for additional information from a party or to request information from the panel.  In addition, either party may ask to review the recording of the hearing.

The following are the only available grounds for appeal:

  • Procedural irregularity that affected the outcome.
  • New evidence that was not reasonably available at the time of the Written Determination that could have affected the outcome.
  • A sanction that is grossly disproportionate to the offense.
  • A decision on responsibility that is not based on substantial information. Substantial information means relevant information that a reasonable person might accept as adequate to support a conclusion. The Appellate Officer must respect the credibility determinations of the hearing panel and must not substitute the Appellate Officer's judgment for that of the hearing panel.
  • The Title IX Coordinator, investigator, hearing panel, and/or University Authority had a conflict of interest or bias for or against complainants or respondents generally or for or against an individual complainant or respondent that affected the outcome.

The Appellate Officer will review the parties’ written submissions and the Written Determination and, if necessary, the entire record of the grievance process. 

The Appellate Officer will issue a written decision that (1) affirms, in whole or in part, the decision on responsibility, (2) overturns, in whole or in part, the decision on responsibility, (3) affirms, overturns, or adjusts the decision on disciplinary sanction, or (4) remands the matter to remedy procedural errors or consider new evidence.  The Appellate Officer will strive to issue a decision within 30 days of receipt of the written response, if any, to the appealing party’s letter.

The decision of the Appellate Officer is the final University decision.

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