Procedure No. 16.1
Area: Board of Trustees


Adopted: 04/23/96
Revisions Approved: 5/26/10

Description:

Hearings Before the Board of Trustees for All Matters Pertaining to Tenure Charges, Personnel Matters of Employees Not Classified Under Title 11A of the N.J. Statutes, and Other Disputes Arising Under the Higher Education Laws Contained in Title 18A of the N.J. Statutes, including Bidding Matters, (Excluding Student Disciplinary Matters and Student Complaints Regarding Academic Matters)


1. Commencement of Proceeding:
A. In General. To initiate a proceeding before the Board, a petitioner shall file with the Secretary a petition conforming to the requirements set forth in section 5 below.
B. Tenure Charges. To initiate proceedings for the dismissal or reduction in compensation of tenured faculty pursuant to N.J.S.A. 18A:6-18, a written charge of the cause(s) preferred against the faculty members signed by the person making the charge shall be filed with the Secretary.
2. Limitations Period:
A. In General. A petition must be filed within 45 days of actual or constructive notice of the determination or action being challenged.
B. Bidding Matters. A petition challenging the award or non -award of a contract under the County College Contracts Law, N.J.S.A. 18A:64A- 25.1 et seq., must be filed within 10 days of actual or constructive notice of the contract award or non-award being challenged.
3. Contents of Petition. The petition must:
A. state the name and address of each petitioner;
B. identify the decision-maker(s) whose determination or action is being challenged and, where the challenged determination has been reduced to writing, include as an exhibit a copy of the written determination.
C. set forth a plain and concise statement of the essential facts,in separately numbered allegations, giving rise to the dispute;
D. state the section(s) of Title 18A under which the controversy has arisen;
E. contain a statement of the relief sought;
F. be verified under oath.
4. Contents of Tenure Charge. A tenure charge must:
A. state the name and address of the respondent faculty member;
B. set forth a plain and concise statement of the essential facts, in separately numbered allegations, upon which the charge is based;
C. contain a statement of the relief sought;
D. be signed by the person making the charge.
5. Caption; Designation of Respondent.
A. The petition shall be captioned "In the Matter of the Petition of [name of petitioner],." Tenure charges shall be captioned "In the Matter of the Tenure Hearing of [name of charged faculty member]." In all cases, the caption should reflect that the proceeding is "Before the Board of Trustees of Atlantic Cape Community College."
B. The college president or his/her designee shall be responsible for representing the college administration with or without the assistance of legal counsel.
6. Exhaustion of Remedies. The failure by a petitioner to exhaust all remedies and procedures available internally thought the college administration or under bargaining unit contracts shall be a complete bar to any proceedings under these rules.

7. Election of Remedies. If the claim asserted in any petition is the subject of a pending grievance under a collectively negotiated contract or the subject of any other administrative or court proceeding, the proceedings on the petition shall be stayed pending completion of the grievance or other administrative proceeding.

8. Service of Petition and Tenure Charges.
A. In general. The Secretary shall serve a copy of the petition on the college president. If the college president has designated another member of the administration to serve as the respondent, the college president shall serve a copy of the petition on the designee.
B. Bidding matters. In any case concerning the award or non -award of a contract under the County College Contracts Law, N.J.S.A. 18A:64A- 25.1 et seq., the petitioner shall serve a copy of the petition on the successful bidder/contractor simultaneously with filing and shall file a proof of service along with the petition.
C. Tenure charges. The Secretary shall serve a copy of the tenure charge on the respondent faculty member.
D. Manner of Service. Service of the petition or tenure charges may be made by personal delivery, campus mail, regular mail, certified mail, messenger or overnight delivery service of telecopies followed by one of the other acceptable methods of service.
9. Answer. An answer to a petition or tenure charge shall be filed within 20 days after service of the petition or tenure charge. The answer shall admit or deny or give an explanatory statement in response to each allegation in the petition or tenure charge. A copy of the answer shall be served on each petitioner or on the person filing the tenure charge, as the case may be, simultaneously with the filing of the answer and proof of service shall be filed along with the answer.

10. Intervention.
A. Bidding Matters. In any case challenging the award or the non-award of a contract under the County College Contracts Law, N.J.S.A. 18A:64A-25.1 et seq., the successful bidder/contractor shall have the right to intervene by filing a notice of intervention within 10 days of service of the petition. If the successful bidder/contractor does not file a timely notice of intervention, the right to intervene or participate may still be sought in accordance with N.J.A.C. 1:1-16.1 et seq. Any intervenor shall file an answer to the petition along with the notice of intervention or within 20 days after entry of an order permitting intervention.
B. Other Matters. Intervention and participation in other than bidding cases shall be governed by N.J.A.C. 1:1- 16.1 et seq.
11. Determination of Jurisdiction.
A. Before Joinder. Upon the filing of a petition, the Chairperson shall review it to determine if it states a claim or claims over which the Board has jurisdiction pursuant to P.L. 1994, Ch. 48, Sec. 6f. If it appears from the face of the petition that the Board does not have jurisdiction over one or more claims asserted in it, the Chairperson shall issue a written decision dismissing those claims over which the Board does not have jurisdiction.
B. After Joinder. Once an answer has been filed, objections to subject matter jurisdiction may be raised at any time on motion of a party or on the Board's own motion.
12. Standard of Review; Burden of Proof.
A. In General. In order to prevail, the petitioner must demonstrate that the challenged action or determination was clearly erroneous factually, contrary to law or college policy, or otherwise arbi- trary, capricious, or unreasonable.
B. Tenure Charges. In matters involving the dismissal or reduction in compensation of tenured faculty pursuant to N.J.S.A. 18A:6-19, the college administration shall bear the burden of proof by a preponderance of the evidence.
13. Hearing Panel; Hearing Officer. The Board may determine to hear a matter itself or assign the matter for hearing to a hearing panel consisting of three Board members or to an independent hearing officer. The college attorney shall participate in all hearings. In the event a hearing is held before a hearing panel or independent hearing officer, the panel or officer, as the case may be, shall issue a written report containing recommended findings of a fact, conclusions of law, and remedy, if any, in such form that it may be adopted by the Board as the final decision. Each party may file written exceptions to the report of a hearing panel or hearing officer within ten days after receipt of the report. Replies to exceptions shall not be permitted except with permission of the Chairperson for good cause shown. The Board shall issue a final decision, pursuant to P.L. 1994, Ch. 48, Sec. 6f, which may accept, reject, or modify the report of a hearing panel or hearing officer or any aspect of it.

14. Transmittal to OAL. Pursuant to N.J.S.A. 18A:6-18, cases involving the dismissal or reduction in compensation of tenured faculty shall be transmitted to the OAL for hearing.

15. Hearing by Board; Quorum; Voting Eligibility. If the hearing is before the Board itself, the hearing may proceed on any occasion when there is a quorum of the Board present even if the quorum is not identical on each day of the hearing. However, in order to deliberate and participate in a decision where the hearing has been held before the Board, a Board member who has not attended all the hearings must certify in writing that he or she has listened to tapes of all hearing sessions from which the member was absent. The decision of the Board shall be memorialized by a resolution and shall be by a majority of a quorum qualified to vote under this section.

16. Public Proceedings; Exceptions.
A. Hearings. All evidentiary hearings before the Board, all proceedings on motions an other applications before the Board, and any oral arguments before the Board shall be conducted as public hearings unless otherwise provided by statute, rule or regulation, or on order of the Board for good cause shown. In considering whether to close a proceeding, the Board will consider the requirements of due process of law, other constitutional and statutory standards, and matters of public policy. The Board will also consider the need to protect parties or witnesses w\from undue embarrassment or deprivations of privacy, or to promote or protect other equally important rights or interests. Hearings before a hearing panel or hearing officer shall be in private.
B. Board Deliberations. Board deliberations shall be in public session unless the matter falls within one of the exceptions to the Open Public Meetings Act as set forth in N.J.S.A. 10:4-12 or otherwise provided by statute, rule, or regulation.
17. Subpoenas. Subpoenas may be issued, pursuant to N.J.S.A. 18A:6- 20, by the Chairperson. Upon application on notice to the parties, a witness summoned may request the Chairperson to quash or modify a subpoena. The Chairperson may grant the application in whole or in part upon finding that the testimony or the evidence required to be produced is not relevant to any matter in question or that the subpoena is unreasonable or oppressive, or has been issued without reasonable time to produce the evidence requested.

18. Applicability of OAL Rules. The following sections of the Uniform Administrative Procedure Rules promulgated by the Office of Administrative Law, N.J.A.C. 1:1-1 et seq., shall govern insofar as applicable:
N.J.A.C. 1:1-5.1 et seq. (Representation)
N.J.A.C., 1:1-7.1 et seq. (Service & Filing of Papers; Format) (except 1:1-7.4)
N.J.A.C., 1:1-10.1 et seq. (Discovery)
N.J.A.C., 1:1-12.1 et seq. (Motions)
N.J.A.C., 1:1-15.5 et seq. (Evidence Rules)
N.J.A.C., 1:1-17.1 to 17.3 (Consolidation of Cases)
19. Emergent Relief. All applications for emergent relief shall be governed by N.J.S.A. 1:1-12.6 except that all such applications shall be submitted to and decided by the Chairperson.

20. Prehearing Conferences. Prehearing conferences may be scheduled, in the discretion of the Chairperson, a hearing panel or a hearing officer whenever necessary to foster an efficient and expeditious proceeding. When the hearing is to be held before the Board, any prehearing conferences shall be held before the Chairperson; otherwise, they shall be held before the hearing panel or hearing officer, as the case may be. If appropriate, a prehearing order addressing the items set forth in N.J.A.C. 1:1-13.2(a) may be issued. The prehearing order may be amended pursuant to N.J.A.C. 1:1-13.2(b) and (c).

21. Recording of Proceedings. All hearings and arguments before the Board, a hearing panel, or hearing officer shall be recorded by sound recording devise. Any party desiring to have any proceedings stenographically recorded may do so at that party's expense. The party desiring that the proceedings be stenographically recorded shall be responsible for obtaining the attendance of a certified shorthand reporter.

22. Construction and Relaxation. The rules governing proceedings before the Board shall be construed to secure a just determination, simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the Board if adherence to it would result in an injustice. In the absence of a rule, the Board may proceed in any manner compatible with these purposes.

See Also:

Academics Policy No. 106
Human Resources Policy No. 810

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