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

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.  At the discretion of the hearing officer, this procedure may also be applied to other misconduct concerns that are closely related to formal complaints of sexual harassment, sexual assault, stalking, or relationship violence that are also being adjudicated.

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 who appears at a hearing 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 making 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.  Current faculty, current staff (including civil service, bargaining unit, and professional and administrative employees), and enrolled students from all five University campuses serve on the SMHC.  The SMHC Coordinator provides administrative and scheduling support to the hearing process.

For each hearing, the SMHC Coordinator 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. In the event that the complainant and the respondent are of the same University classification, at least one panel member will be of that classification.

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 Coordinator. 

In cases involving a respondent who is a student, the SMHC Coordinator 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 Coordinator 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 Coordinator 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.

Where the University Authority’s proposed informal resolution differs meaningfully from the campus Title IX office's recommendation on informal resolution in cases involving a respondent who is an employee or other non-student University member, the informal resolution must be approved by:

• the Provost (in cases with faculty respondents from the Twin Cities campus);
• the Vice President for Human Resources (in cases with staff or third-party respondents from the Twin Cities campus); or
• the Chancellor (in cases with respondents from the Crookston, Duluth, Morris, and Rochester campuses).

The SMHC Coordinator will facilitate this approval process.  In cases where the Provost, Vice President of Human Resources, or Chancellor reviews an informal resolution, they will need to appoint another individual to serve as appellate officer if an appeal is filed.

If an informal resolution is not proposed, the matter will proceed to a hearing.  If an informal resolution is proposed, the SMHC Coordinator will simultaneously share the investigative report and proposal with the parties.

In cases that include allegations of Title IX-based prohibited conduct:  A proposed informal resolution will only be implemented if both parties accept the informal resolution in writing.  The parties may accept the informal resolution or suggest a modification by notifying the SMHC Coordinator in writing within 7 calendar days of the date the SMHC Coordinator shared the report and proposal with the parties.  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.

In cases that do not include allegations of Title IX-based prohibited conduct:  A proposed informal resolution will be implemented unless a party rejects or suggests a modification to the informal resolution in writing within 7 calendar days of the date the SMHC Coordinator shared the report and proposal with the parties. If neither party rejects the informal resolution, the informal resolution is implemented and the matter is considered fully and finally resolved.  If either party rejects the informal resolution, the matter will proceed to a hearing.  

If a party suggests a modification to the informal resolution, the SMHC Coordinator will share any suggested modification with the University Authority, who may agree or disagree with the modification.  If the University Authority agrees with the modification, notice of the modification will be provided to the parties and they will be given an additional 7 calendar days to agree to or reject the proposed modified informal resolution.  If the University Authority disagrees with the modification, notice of the disagreement will be provided to the party who suggested it and that party will be given an additional 3 calendar days to agree to or reject the original informal resolution.

Written Notice of Hearing

If an informal resolution is not implemented, the SMHC Coordinator will schedule a hearing. At least 20 calendar days prior to the hearing, the SMHC Coordinator will send the parties a written notice of hearing that includes the following:

• Purpose of the Hearing. The purpose of the hearing is to determine whether the respondent violated the specific policy provisions identified in the formal complaint.
• Parties. Each party has up to 5 calendar days from the date of the written notice of hearing to identify their advisor in writing to the SMHC Coordinator.  If either party does not identify an advisor by this deadline, the SMHC Coordinator will provide that party with an advisor identified by the University.  Each party must identify any support person that will be present at the hearing in writing to the SMHC Coordinator no later than 3 calendar days prior to the hearing.
• Investigative Report. The SMHC Coordinator will attach the investigative report to the written notice of hearing.
• Response to Investigative Report. Each party may submit to the SMHC Coordinator at least 5 calendar days prior to the hearing a written response to the investigation report for consideration by the hearing panel. The SMHC Coordinator will make any response(s) to the investigation report available to the hearing panel and any other party at least 2 calendar days prior to the hearing.
• Hearing. The written notice of hearing will include the date, time, and location of the hearing after allowing both parties to register any objections to two proposed hearing dates.  Hearings will take place virtually.  The University can provide a private room for any party or witness who needs a private space from which to participate in the hearing.
• Hearing Chair and Panel Members.The written notice of hearing will identify the hearing chair and panel members. Each party has up to 5 calendar days from the date of the written notice to submit an objection to the hearing chair or any 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 Coordinator will decide if the hearing chair should be excluded from the panel and replaced and, if so, will arrange for the replacement.  The SMHC Coordinator will send notice of the name of the replacement hearing chair or panel member to each party who will have one calendar day from the date of the SMHC Coordinator’s notice to submit an objection.

  If an appointed hearing chair or a panel member will be unavailable for the hearing, a replacement hearing chair or panel member will be named.  The SMHC Coordinator will send notice of the name of the replacement hearing chair or panel member to each party who will have one calendar day from the date of the SMHC Coordinator’s notice to submit an objection.  However, if a panel member becomes unavailable for a hearing 5 or fewer days before the hearing or does not appear at the start of the hearing, each party will be asked if they wish to proceed with the hearing date as scheduled with only four voting members.  If both parties agree to proceed with four voting members, a majority vote (three members) will still be required to determine responsibility.  If the parties do not agree, the hearing will be rescheduled for the earliest possible date.

• Witnesses. The written notice of hearing will state that each party must submit to the SMHC Coordinator 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 Coordinator 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 will provide a short description of the witness’s relationship to the parties and expected testimony, and email address.  The party is responsible for contacting that witness and arranging for the witness to attend the hearing. At the request of the hearing chair or a panel member, the SMHC Coordinator 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. The SMHC Coordinator will make the witness list available to the hearing panel and any other party at least 2 calendar days prior to the hearing.
• Evidence. The SMHC Coordinator 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 Coordinator will provide this information to the parties and the hearing panel within 7 calendar days from the date of the written notice of hearing. This information will not include 1) information subject to a legally protected privilege and 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 Coordinator 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 Coordinator will make the newly submitted evidence available to the hearing panel and any other party at least 2 calendar days prior to the hearing.  If the hearing chair determines that the newly submitted evidence is not directly related to the allegations in the formal complaint, the SMHC Coordinator will notify the party who submitted the evidence.

  Prior to the hearing, the hearing chair and panel members will have reviewed 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, the parties’ written responses to the investigation report, and any additional evidence submitted by a party that the hearing chair has determined is directly related to the allegations in the formal complaint.

• Opportunity for Administrative Resolution. In all cases except those that include allegations that an employee engaged in Title IX-based prohibited conduct toward a student, 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 from the date of the written notice of hearing to agree to resolve the case through the administrative resolution process, which will be pursued only if all parties agree.  If all parties agree to pursue administrative resolution of the formal complaint, the hearing chair will strive to deliver the Written Determination to the SMHC Coordinator within 30 calendar days of receipt of 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. The SMHC Coordinator will then provide the Written Determination simultaneously to the parties.

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 (e.g., making opening or closing comments, conducting direct or cross-examination, answering questions).  Participants must not turn off their cameras while they are testifying during the hearing.   In cases that include allegations of Title IX prohibited conduct, participants must not turn off their cameras and 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 personal 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 and follow the process established by that office.  Any participant who needs reasonable accommodations for religion or for reasons related to pregnancy, childbirth, lactation, and related medical conditions, should notify the SMHC Coordinator about the need for accommodations at least three days prior to the hearing.  In addition, any participant who may need a language interpreter should notify the SMHC Coordinator as soon as possible.

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 Coordinator 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, that 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.

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.  The hearing chair may increase or decrease the time limit if appropriate.

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 and witnesses who were not identified by either party, if such witnesses were interviewed or invited to be interviewed during the investigation process. The parties will then 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.  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

Questions intended to elicit relevant information may be asked during the hearing, including questions that challenge credibility.  Relevant information is evidence that is pertinent to proving whether facts material to the allegations in the formal complaint are more or less likely to be true.  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.  A party may register an objection to the relevance ruling for the record.

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.

Decision

At the close of the hearing, the hearing panel will deliberate in a session.  Only the hearing panel and the SMHC Coordinator 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 Coordinator. 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 Coordinator so that the SMHC Coordinator 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 Coordinator so that the SMHC Coordinator 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 Coordinator within 10 calendar days of the hearing, and the SMHC Coordinator 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. 

Where the University Authority’s decision on discipline differs meaningfully from the recommendation on discipline made by the hearing panel (in cases that are resolved through a live hearing) or by the campus Title IX Office (in cases that are resolved through an administrative resolution process), the discipline must be approved by:

• the Provost (in cases with faculty respondents from the Twin Cities campus);
• the Vice President for Human Resources (in cases with staff or third-party respondents from the Twin Cities campus); or
• the Chancellor (in cases with respondents from the Crookston, Duluth, Morris, and Rochester campuses).

The SMHC Coordinator will facilitate this approval process.  In cases where the Provost, Vice President of Human Resources, or Chancellor reviews a disciplinary decision, they will need to appoint another individual to serve as appellate officer if an appeal is filed.

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 Coordinator.  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 SMHC Coordinator.  Appeals that are not timely noticed will be denied.

The SMHC Coordinator will forward a timely filed notice of appeal to any other party.  The appealing party then has 10 calendar days after filing their notice of appeal to deliver to the SMHC Coordinator a letter that describes the ground(s) for the appeal, from the list below, and any information in support of the appeal.  The SMHC Coordinator will forward this letter to any other party, who then has 10 calendar days from the date of the SMHC Coordinator’s letter to submit a written response to the letter. The SMHC Coordinator will forward the written response to the letter, if any, to the appellant. The appellant may not submit information in response to the appellee’s written response. The Appellate Officer, however, has discretion to ask for additional information from a party or to request information from the panel.  In addition, either party may 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 calendar 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.