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GRIEVANCE PROCEDURES: PROPOSED OAR REVISIONS

Staff Report to the System Strategic Planning Committee

At meetings on October 20, 2000, the System Strategic Planning (SSP) Committee recommended, and the full Board approved, the following directive as to the Board's oversight of the grievance process:

Limit(s) Board review as to the type of grievances brought before the Board, which included the following exceptions: 1) grievances involving presidents be referred to the Chancellor; 2) grievances involving the Chancellor go to the Board; 3) the Board conduct an annual review of grievances; and 4) grievances involving substantial employment changes, or having a System impact (up to the Chancellor's discretion) be reviewed by the Board.

Below are proposed revisions to the primary Oregon Administrative Rule (OAR) on grievances (580-021-0050) and to the rule relating to appeals (580-021-0055). Lastly is a rule recommended for deletion (580-021-0390). What follows is a point-by-point explanation of the proposed revisions. Note that brackets show items to be deleted and proposed new language appear in bold type.

OAR 580-021-0050 - Grievance Procedures

(2)(b) - Grammatical corrections are made to better track the sections intent and to aid the clarity;
(3)(b) - "grievance officer" is substituted for "institution president" - rationale appears below;
(3)(c) - "president" is substituted for Board's - rationale below;
(3)(d) - the second sentence re: contested case hearing is recommended for deletion as that right is more appropriately covered by a later portion of OARs; this additional reference is therefore misleading;
(3)(e) - a new section: This is directly responsive to Board's direction to move focus of appeal process from the Board to the presidents. In order to establish presidents as the appellate decision maker, and to maintain the current number and levels of review, the appointment of an administrative officer to receive the recommendations of the grievance committee was necessary.
Sections (6), (7), (8), and (9) - all change the reference to appellate decision maker from the Board to the president, and the grievance committee decision maker from the president to the grievance officer.
(10) - The new first sentence is proposed to clearly state the intent that the president is the final institutional decision maker for applicable grievances; the second sentence is in direct response to the Board directive that there be a route of appeal for appealable actions of the president to the chancellor. The language "where the president is the immediate supervisor" is needed to distinguish the actions which are appealable from those where the president is the appellate decision maker (and the action is final).
(11) - this wording is recommended to address the Board's directive that issues having a "system impact" be retained for Board review. Other alternative wordings were examined with the result that they either were not compatible with the Board's desire to reduce its volume, or were too cumbersome. Language of this nature is used by other system's Board to retain the authority to review items of unanticipated significance.

The two remaining items of the Board's directive are that there be an annual reporting of grievances which is currently required by section 14 (as is retained); and that there be a route of review where the Chancellor may be involved in a grievance. OAR 580-021-0050 is directed to the campus grievance issue. The situation where the Chancellor may be involved must be addressed by separate OAR which will be submitted later.

Lastly, it is noted that the Board directed a continued Board review of grievances involving substantial employment change. Substantial employment changes are best associated with institutional decision to discipline a tenured faculty member. Review of such matters is currently addressed by the 300 series of Division 21, and further reference here would not be necessary.

OAR 580-021-0055 - Appeal of Grievance Decisions

The current rule addresses appeal from decisions of a president to the Board. The proposed revisions use the same format to modify to the appeals from the grievance officer to the president.

OAR 580-021-0390 - Discretionary Review of Academic Nondisciplinary Personnel Decisions

This section is a holdover from previous grievance processes, and would be in conflict with the proposed modifications to OAR 580-021-0050.

Grievance Procedures

580-021-0050
(1) The institutions shall adopt, in consultation with faculty advisory committees including female and minority faculty and representatives of certified bargaining units, if any, appropriate grievance procedures, in accordance with the rulemaking procedures of the Administrative Procedure Act. The grievance procedures shall apply to all unclassified academic employees with faculty rank. The adopted procedures shall not lessen any employee rights under existing institutional grievance procedures.
(2) For purposes of this rule and OAR 580-021-0055:
(a) "Grievance" means a complaint by an academic employee that the employee was wronged in connection with compensation, tenure, promotion or other conditions of employment or the employee's rights were denied as to reappointment;
(b) "Other conditions of employment" shall include, but not necessarily be limited to[,]: violations of academic freedom[,]; discriminatory employment practices[,]; nondiscriminatory employment practices; and laws, rules, policies and procedures under which the institution operates. However, challenges to disciplinary actions or procedures shall be raised under OAR 580-021-0320;
(c) "Days" mean calendar days unless expressly designated otherwise.
(3) The institutions' grievance procedures shall:
(a) Set out the details of a grievance procedure appropriate to the institution;
(b) Include both informal and formal steps. The formal steps shall include an appropriate administrator, a faculty committee (at the option of the grievant) and the [institution president] grievance officer. However, a grievance may be resolved at any step. In a formal grievance, all complaints, responses and decisions must be in writing;
(c) Establish time limits within which a grievance must be filed and for each step that will permit timely resolution of issues. Informal grievances shall receive a response within 15 days. In no instance shall the length of time between the presentation of the written grievance and the [Board's] president's decision be more than 180 days, unless agreed to by the grievant. In the event a decision is not made at any level within the designated time limit, the grievant may submit the grievance to the next step;
(d) Provide for a hearing, at the option of the grievant, by a faculty committee selected by the faculty at the institution. [If a grievant is otherwise entitled to a contested case hearing, that grievant may elect to use the institution's contested case procedure instead of the procedures described in this rule;]
(e) Provide for the appointment by the president of an administrative officer, or officers, (grievance officer) to receive and act upon the recommendations of the faculty committee.
(4) The institution may elect not to proceed with a grievance if the grievant also seeks resolution in another forum.
(5) The institution shall adopt rules of procedure for the faculty committee that allow for:
(a) A meaningful opportunity for the grievant to be heard;
(b) An opportunity for each party to present evidence, argument and rebuttal;
(c) The right to representation for each party at that party's expense;
(d) A hearing open to the public at the option of the grievant to the extent allowed by law;
(e) Written conclusions, based only upon evidence presented at the hearing; and
(f) Access by each party to a complete record of the hearing.
(6) The faculty committee shall make recommendations regarding the disposition of the grievance to the grievance officer.
(7) Unless the grievance is resolved at a lower level, the [president of the institution, or a designee of the president] grievance officer, shall review the recommendations of the faculty committee, if any, and the [president] grievance officer shall issue a decision.
(8) If the [president] grievance officer rejects or modifies the recommendations of the faculty hearing committee, the reasons shall be stated in writing, and a copy provided to the grievant.
(9) The grievant may appeal the decision of the [president to the Board] grievance officer to the president pursuant to OAR 580-021-0055.
(10) Except as set forth herein, the decision of the president shall be final, and shall be an exhaustion of grievant's administrative remedies with the institution and the State Board of Higher Education. If the grievance involves the president, where the president is the immediate supervisor of the grievant, then the appeal, set forth in section 9, shall be to the Chancellor of the Oregon University System (all other provisions of this rule shall otherwise apply).
(11) Nothing contained in this administrative rule shall be construed to limit the right of the State Board of Higher Education to make such inquiry and review into personnel actions as it may from time to time deem, in its sole discretion, appropriate.
[10] (12) Where collective bargaining agreements or administrative rules exist at an institution in which grievance procedures are specified and such procedures exceed the standards in this rule, such agreements or administrative rules shall control.
[11] (13) After consultation with the appropriate faculty committees and approval of the Chancellor's Office, each institution shall adopt its rules by [June 1, 1988] September 1, 2001.
[12] (14) Each institution shall report annually to the Board beginning [July 1989] July 2002, on the number, basis and outcome of all formal grievances filed under the rules herein required.

Appeal of Grievance Decisions

580-021-0055
(1) A grievant may request [Board review of a president's] review by the institution's president of a decision described in OAR 580-021-0050(7). The [Board or its designee] president shall review the record of the grievance. The [Board] president shall decide, based on [its] his/her own review [or on the recommendation of a designee], whether to support the [president's] grievance officer's decision. The [Board] president's decision must be reached within [60] 90 days of the date on which the request is received in the [Chancellor's] President's Office.
(2) A request for [Board review] review by the president shall be in writing and must be received in the [Chancellor's] President's office within 15 days of the grievant's receipt of the [president's] grievance officer's decision. The request shall briefly state the basis for the request for review and the specific facts that would support [Board action] action by the president consistent with section [6] (4) of this rule. The request shall include a copy of the [president's] grievance officer's decision.
[(3) Upon receipt of a request for Board review, the Chancellor shall notify the institution president and the President of the Board. The institution president shall forward a copy of the record of the grievance to the Chancellor within seven days. The President of the Board shall decide whether initial review will be by the Board or by a designee and notify the grievant and the institution president accordingly. If initial review is delegated, the President of the Board shall select the designee and identify that person in the notice to the grievant and the institution president.]
[(4) Board review] (3) Review by the president shall consist of an examination of the record of the grievance. The [Board (or its designee)] president may elect to receive additional written or oral presentations from the grievant and the [institution president] grievance officer.
[(5) If initial review is by a designee, the designee will prepare a written recommendation to the Board including reasons for the recommendation. The Board is not bound by the recommendation of the designee.]
[(6)] (4) The [Board] president shall not reverse a decision of a [president] grievance officer unless:
(a) Procedural error was committed by the institution during the grievance procedure and the error resulted in prejudice to the grievant;
(b) The decision of the [president] grievance officer is not supported by substantial evidence; or
(c) The decision is in conflict with applicable rules or law.
(d) The [Board] president's decision shall be in writing and shall be sent to the grievant and the [institution president] grievance officer.

[Discretionary Review of Academic Nondisciplinary Personnel Decisions

580-021-0390 An academic staff member aggrieved by a president's nondisciplinary personnel decision may appeal such decision as follows:
(1) Any request for Board's Office review shall be made only after the academic staff member has exhausted all internal institutional procedures appropriate for reviewing the decision in question.
(2) All requests for review shall be in writing, shall be addressed to the Chancellor, and shall state succinctly the basis of the grievance and the reasons of academic policy that justify further review of the decision.
(3) Any decision to take further action with respect to an alleged grievance shall be discretionary with the Board.
(4) Requests for review shall be assigned to the Chancellor or a designee for examination, informal settlement if possible, conduct of a conference or hearing, if necessary, and report and recommendation to the Board if the grievance is not resolved.
(5) Consideration of any request shall be limited to appellate review of alleged errors by the appointing authority with respect to procedure, adherence to Administrative Rules or applicable law, and fair consideration of the facts. The scope of review shall not include a de novo review on the judgment exercised by the president.]

Staff Recommendation to the System Strategic Planning Committee

Staff recommends Board approval of the proposed amendments to OAR 580-021-0050 and -0055 as noted. Staff further recommends deletion of OAR 580-021-0390. If approved by the Board, staff would initiate the appropriate notification and hearing processes through the Secretary of State's Office and return to the Board for a final vote on the amendments at its scheduled meeting on April 16, 2001.

COMMITTEE ACTION:

BOARD ACTION: