3.12 Procedures for Terminating Tenured Faculty

After consultation [2] with the President of the faculty senate or the Faculty Senate Executive Committee (or campus equivalent), the provost may suspend the faculty member with pay, or change any assignment of duties, pending completion of the university’s termination proceedings described in Board policy, this handbook, and campus procedures related to termination proceedings. The provost may combine actions under this paragraph with any other procedures in BT0006-Appendix B or this Section 3.12.

The department head shall direct the tenured departmental faculty to consider the faculty member’s performance in teaching, research, and service and, by an anonymously cast vote taken in accordance with applicable department or college bylaws, to make a recommendation on the question of whether the faculty member’s performance constitutes Adequate Cause for termination. The faculty vote shall be advisory to the department head. If an Enhanced Post-Tenure Performance Review (EPPR) has been completed in the preceding four years, the report of the EPPR peer committee shall be provided to the tenured faculty, along with any other evaluative information provided for their review. The faculty member under review shall be provided with a copy of the material provided to the tenured faculty and shall be given a reasonable opportunity to submit responsive written materials before the vote of the tenured faculty.

The department head shall consider the faculty member’s performance in teaching, research, and service, and the recommendation of the tenured departmental faculty, and make a recommendation on the question of whether the performance constitutes Adequate Cause for termination. The department head shall forward the recommendation and the reasoning supporting the recommendation to the dean, together with the history of efforts to encourage the faculty member to improve performance and a report of the recommendation of the tenured faculty (including the anonymously cast vote tally) on the question of whether the faculty member’s performance constitutes Adequate Cause for termination.

The dean shall consider the faculty member’s performance in teaching, research, and service, and the recommendation of the tenured departmental faculty and department head, and make a recommendation on the question of whether the performance constitutes Adequate Cause for termination. The dean shall forward the recommendation and the reasoning supporting the recommendation to the provost, together with the recommendations of the tenured faculty and the department head.

1. Review by the Provost
   1. If the provost concludes that Adequate Cause for termination may exist, he or she shall call the faculty member to a meeting to discuss a mutually satisfactory resolution of the matter.
   2. If a mutually satisfactory resolution is not achieved within 30 calendar days, the provost shall ask the Faculty Senate Appeals Committee to make a recommendation as to whether Adequate Cause for termination exists. The recommendation of the Faculty Senate Appeals Committee, along with supportive reasoning, shall be provided to the provost within 30 calendar days of the request and shall be advisory to the provost.
   3. If the provost concludes that Adequate Cause does not exist, then the provost shall provide the faculty member with written notice of the conclusion (with a copy to the dean and the department head) and shall include in the notice any further instructions regarding the matter as may be necessary.
2. Sanctions Less than Termination for Adequate Cause
   1. If the provost concludes Adequate Cause exists but that a sanction other than termination or suspension without pay should be imposed, then the provost may impose the lesser sanction. The faculty member may appeal the lesser sanction to the chancellor, whose decision shall be final and not appealable to the president.
   2. If the provost concludes Adequate Cause exists but that the sanction should be suspension without pay rather than termination, the provost shall employ the procedures set forth in Section 3.12.1.5-C, appropriately tailored to reflect that the proposed sanction is suspension without pay rather than termination. If the faculty member wishes to contest the suspension without pay, the procedures in Section 3.12.1.7 of this handbook apply, appropriately tailored to reflect that the proposed sanction is suspension without pay rather than termination.
3. Termination for Adequate Cause Based on Unsatisfactory Performance in Teaching, Research, or Service
   1. Notice of Adequate Cause and Opportunity to Respond: Before deciding that the faculty member’s appointment should be terminated for Adequate Cause related to unsatisfactory performance (defined at Section 3.11.8.1-C.1 above), the provost shall give the faculty member written notice, including a statement of the grounds for termination, framed with reasonable particularity, and the opportunity to respond to the stated grounds and the proposed termination in a meeting with the provost. The faculty member may choose to respond in writing instead of, or in addition to, a meeting with the provost. Any written response must be submitted to the provost within 10 calendar days of delivery of the written statement of the grounds for termination.
   2. Notice of Termination: If, after considering any information provided by the faculty member and after consulting with the chancellor and the president, the provost concludes that the faculty member’s appointment should be terminated for Adequate Cause, the provost shall provide written notice of termination to the faculty member:
      1. providing a statement of the grounds for termination, framed with reasonable particularity, and the date on which the termination will become effective unless the faculty member elects to contest the termination in a pre-termination hearing before a hearing tribunal (Section 3.12.1.7-A);
      2. providing notice of the faculty member’s right to contest the proposed termination in a pre-termination hearing before a tribunal, as described below, or in a post-termination hearing conducted under the provisions of the Tennessee Uniform Administrative Procedures Act; and
      3. providing notice that the faculty member has 15 calendar days after receipt of the written notice to elect in writing to contest the termination and to elect in writing the form of hearing. Selection of one type of hearing waives the opportunity to contest the termination through the other type of hearing. The provost shall send a copy of the written notice to the faculty senate at the same time.

If the faculty member does not contest the charge(s) in writing and make the required hearing election within 15 calendar days after receipt of the written notice described in Section 3.12.1.5-C.2. above, the faculty member shall be terminated, and no appeal of the matter will be heard within the university.

The rights provided in this paragraph 3.12.1.7 are in lieu of any other rights of grievance or appeal in this handbook or any appeal to the president.

1. Pre-Termination Hearing before a Tribunal

   If the faculty member makes a timely election to contest the charge(s) through a hearing by a university tribunal, the faculty member must confirm in writing the decision to waive the right to a hearing under the Tennessee Uniform Administrative Procedures Act, and the chancellor shall ask the faculty senate, or a designated committee of the faculty senate, to appoint a tribunal within 15 calendar days and shall notify the faculty member in writing of this action. The matter shall then proceed in accordance with the tribunal procedures described below with the faculty member’s termination stayed pending the conclusion of those procedures.

   1. Composition of the tribunal: The university tribunal shall consist of five members of the tenured faculty and the administration. Members of the administration who are members of the tribunal must also hold tenure, and the majority of the tribunal must be full‑time faculty members. The tribunal shall select its own chair. Either the chancellor or the faculty member may challenge the appointment of a tribunal member on the ground of bias or conflict of interest. A challenge shall be judged by the faculty senate, or a designated committee of the faculty senate, whose decision on the challenge shall be final and not subject to appeal.
   2. Notice of hearing: The chancellor shall give the faculty member written notice of the hearing date at least 30 calendar days in advance. The chancellor shall issue a scheduling order to ensure that the tribunal’s written findings, reasoning, and conclusions are submitted to the chancellor within 120 calendar days from the date the faculty member has been provided with written notice of termination under Section 3.12.1.5-C.2. A scheduling order shall not be modified except by leave of the chancellor upon a showing of good cause.
   3. Representation: If the university intends to be represented by legal counsel, the written notice of the hearing date shall so advise the faculty member. The written notice shall also state the faculty member’s right to be represented by legal counsel or other representative of choice. If the faculty member intends to be represented by legal counsel, he or she must notify the tribunal chairperson within 10 days of receipt of the written notice of the hearing date. If the faculty member fails to give timely notice of legal representation, the hearing date shall be postponed at the university’s request.
   4. Waiver of hearing: If, at any time prior to the hearing date, the faculty member decides to waive the right to a hearing and respond to the charge(s) only in writing, the tribunal shall proceed to evaluate all available evidence and rest its recommendation upon the evidence in the record.
   5. Pre‑hearing preparation: The faculty member and the university shall have a reasonable opportunity prior to the hearing to obtain witnesses, specific documents, or other specific evidence reasonably related to the charge(s).
   6. Evidence: The tribunal is not bound by legal rules of evidence and may admit any evidence of probative value in determining the issues. The tribunal shall make every reasonable effort, however, to base its recommendation on the most reliable evidence. If the charge is “failure to demonstrate professional competence in assigned roles in teaching, research, or service,” the evidence shall include the testimony of qualified faculty members from this and/or other comparable institutions of higher education.
   7. Confrontation and cross‑examination of witnesses: The faculty member and the university shall have the right to confront and cross‑examine all witnesses. If a witness cannot or will not appear, but the tribunal determines that specific testimony is necessary to a fair adjudication of the charge(s), the tribunal may admit as evidence the sworn affidavit of the witness. In that event, the tribunal shall disclose the affidavit to both parties and allow both parties to submit written interrogatories to the witness.
   8. Adjournments: The tribunal shall grant adjournments to allow either party to investigate evidence to which a valid claim of surprise is made. The tribunal may grant one such adjournment for a period of no more than five calendar days. If the tribunal wishes to grant an adjournment for more than five calendar days, or wishes to grant more than one adjournment, the tribunal shall notify the chancellor of the proposed adjournment, provide an explanation of the need for the adjournment, and provide a recommendation regarding the length of the adjournment. If the chancellor concurs in the tribunal’s recommendation that an adjournment be granted, the chancellor shall give the faculty member written notice of the date on which the hearing will resume.
   9. Burden of proof: The burden of proof that adequate cause exists rests with the university and shall be satisfied only by clear and convincing evidence in the record considered as a whole.
   10. Findings and conclusions: The tribunal shall make written findings and conclusions and shall provide a copy to the faculty member at the time of submission to the chancellor.
   11. If the tribunal concludes Adequate Cause for termination has not been established, it shall so report to the chancellor, with supporting reasons. In the case of a split decision, a minority report should be included.
   12. If the tribunal concludes Adequate Cause for termination has been established but that a sanction other than termination should be imposed, it shall so recommend to the chancellor, with supporting reasons. In the case of a split decision, a minority report should be included.
   13. If the tribunal concludes Adequate Cause for termination has been established and that termination is the appropriate sanction, it shall so report to the chancellor, with supporting reasons. In the case of a split decision, a minority report should be included.
   14. Transcript of the hearing: A verbatim record of the hearing shall be made, and a transcript shall be provided to the faculty member and the chancellor at the time of the tribunal’s submission of the findings, reasoning, and conclusions.
   15. Final Decision by the Chancellor: Upon receipt of the tribunal’s findings, reasoning, and conclusions, the chancellor shall provide an opportunity for written argument by the parties and may provide the parties an opportunity to present oral argument. After considering the tribunal’s findings, reasoning, and conclusions and any arguments of the parties, the chancellor will determine whether Adequate Cause has been established and whether termination is the appropriate sanction.

       If the chancellor concludes that Adequate Cause has not been established, the chancellor shall provide the faculty member with written notice of the conclusion (with a copy to the tribunal, provost, dean, and department head) and shall include in the notice any further instructions regarding the matter as may be necessary.

       If the chancellor concludes that Adequate Cause has been established but that a sanction other than termination should be imposed, including without limitation suspension without pay, the chancellor may impose the lesser sanction by written notice to the faculty member (with a copy to the tribunal, provost, dean, and department head). The notice shall include the date on which the sanction will become effective. The decision of the chancellor shall be final and not appealable to the president.

       If the chancellor concludes that Adequate Cause has been established and that termination is the appropriate sanction, the chancellor shall provide the faculty member with a written notice of termination stating the grounds for termination (with a copy to the tribunal, provost, dean, and department head). The notice of termination may include or adopt the written findings and conclusions of the tribunal if applicable to the chancellor’s decision. The notice shall include the date on which termination will become effective. The decision of the chancellor shall be final and not appealable to the president.

2. Post-Termination Hearing under the TUAPA
   1. Contested Case Procedures: If the faculty member makes a timely election to contest the charge(s) under the Tennessee Uniform Administrative Procedures Act (TUAPA), the chancellor shall appoint an administrative judge, the faculty member’s employment will be terminated on the date specified in the notice provided under Section 12.1.5-C.2. of this handbook, and the matter shall proceed post-termination in accordance with the contested case procedures promulgated by the university under the TUAPA. The TUAPA contested case procedures are published in the Compiled Rules and Regulations of the State of Tennessee, Tenn. Comp. R. & Regs. § 1720-1-5.
   2. Initial Order: In accordance with the TUAPA contested case procedures, upon completion of the hearing, the administrative judge shall render an initial order, which either party may appeal to the chancellor within 15 calendar days. In addition, the chancellor, on their own motion, may elect within 15 calendar days to review the administrative judge’s initial order.
   3. Final Order: The administrative judge’s initial order shall become the final order unless review is sought by either party or the chancellor within the fifteen-day period. If review is sought, the chancellor shall review the initial order and issue a final order in accordance with applicable provisions of the TUAPA contested case procedures. The final order, whether rendered by the chancellor or by virtue of neither party appealing the initial order, shall be the final decision on the charge(s) within the university. If the university’s final order is favorable to the faculty member and concludes that the faculty member’s employment should not have been terminated for Adequate Cause, then full restitution of salary, academic position and tenure lost during the termination will be made.
   4. Judicial Review: If the final order is unfavorable to the faculty member, he or she is entitled to judicial review of the final order in accordance with applicable provisions of the Tennessee Uniform Administrative Procedures Act.

The provost may combine action under this paragraph with any other procedures in Policy BT0006-Appendix C or this Section 3.12.

1. Suspension with Pay or Reassignment of Duties: The provost may suspend a faculty member with pay, or change the assignment of duties, pending completion of the university’s termination proceedings described in Policy BT0006 and its Appendix C, this handbook, and any campus procedures related to termination proceedings.
2. Suspension without Pay: After consultation with the chancellor, the provost may suspend a faculty member without pay, pending completion of termination proceedings only for the following types of alleged Misconduct:
   1. alleged misconduct involving:
      1. acts or credible threats of harm to a person or university property; or
      2. theft or misappropriation of university funds, property, services, or other resources, or
   2. indictment by a state or federal grand jury, or arrest and charge pursuant to state or federal criminal procedure, for:
      1. a felony; or
      2. a non-felony directly related to the fitness of a faculty member to engage in teaching, research, service, or administration, or otherwise related to the fulfillment of a faculty member’s responsibilities or duties.

In cases where a faculty member has been suspended without pay based on indictment or arrest, as described above, the provost may – upon full acquittal of all charges – re-characterize some or all of the suspension as a suspension with pay, allowing payment of salary that would have otherwise accrued.

1. Notice of Adequate Cause and Opportunity to Respond: Before deciding that the faculty member’s appointment shall be terminated for Adequate Cause – Misconduct, the provost shall give the faculty member written notice, including a statement of the grounds for termination, framed with reasonable particularity, and the opportunity to respond to the stated grounds and the proposed termination in a meeting with the provost. The faculty member may choose to respond in writing instead of, or in addition to, a meeting with the provost. Any written response must be submitted to the provost within 10 calendar days of delivery of the written statement of the grounds for termination.
2. Sanctions Less than Termination for Adequate Cause: If the provost concludes Adequate Cause exists but that a sanction other than termination or suspension without pay should be imposed, the provost may impose the lesser sanction. The faculty member may appeal the lesser sanction to the chancellor, whose decision shall be final and not appealable to the president.
3. Notice of Termination for Adequate Cause – Misconduct: If, after considering any information provided by the faculty member, and after consulting with the chancellor, the provost concludes that the faculty member’s appointment should be terminated for Adequate Cause – Misconduct, the provost shall provide written notice to the faculty member providing:
   1. a statement of the grounds for termination, framed with reasonable particularity;
   2. the date on which the termination will become effective;
   3. notice of the faculty member’s right to contest the termination in a post-termination hearing before an ad hoc hearing committee (Section 3.12.2.4-A of this handbook) or in a post-termination hearing under the provisions of the Tennessee Uniform Administrative Procedures Act; and
   4. notice that the faculty member has 15 calendar days after receipt of the written notice to elect in writing to contest the termination.

The termination becomes effective on the date provided in the provost’s written notice, notwithstanding the faculty member’s election to contest the termination in a post-termination hearing. Selection of one type of hearing waives the opportunity to contest the termination through the other type of hearing.

If the faculty member does not contest the termination in writing within 15 calendar days after receipt of the written notice described in Section 3.12.2.4-C.2. of this handbook, the termination is final, and no appeal of the matter will be heard within the university.

The rights provided in this Section 3.12.2.4 are in lieu of any other rights of grievance or appeal in the handbook or any appeal to the president.

1. Post-Termination Hearing before an Ad Hoc Hearing Committee

   If the faculty member contests the termination but elects to waive the right to formal hearing under the contested case procedures of the TUAPA, the faculty member must confirm in writing the decision to waive the right to a hearing under the TUAPA, and the chancellor shall appoint an ad hoc hearing committee to conduct an informal hearing on the charges. [The ad hoc hearing committee shall be composed of individuals whose primary roles are as 12-month  administrators, including those administrators who may hold faculty appointments in addition to administrative appointments.]

   The chancellor shall give the faculty member written notice of the hearing date at least 30 calendar days in advance. The chancellor shall issue a scheduling order to ensure that the hearing committee’s written report is submitted to the chancellor within 120 calendar days from the date the faculty member has been provided with written notice of termination under Section 3.12.2.4-C.2. of this handbook. A scheduling order shall not be modified except by leave of the chancellor upon a showing of good cause.

   The faculty member may be represented before the hearing committee by legal counsel or other representative of choice. If the faculty member intends to be represented by legal counsel, he or she must notify the committee chairperson within 10 calendar days of receipt of the written notice of the hearing date. If the faculty member fails to give timely notice of legal representation, the hearing date shall be postponed at the university’s request.

   The hearing committee shall grant adjournments to allow either party to investigate evidence to which a valid claim of surprise is made. The hearing committee may grant one such adjournment for a period of no more than five calendar days. If the hearing committee wishes to grant an adjournment for more than five calendar days, or wishes to grant more than one adjournment, the hearing committee shall notify the chancellor of the proposed adjournment, provide an explanation of the need for the adjournment, and provide a recommendation regarding the length of the adjournment. If the chancellor concurs in the hearing committee’s recommendation that an adjournment be granted, the chancellor shall give the faculty member written notice of the date on which the hearing will resume.

   The hearing committee shall make a written report to the chancellor and the parties. The report may provide a summary of the hearing, including a summary of any statements of any person who appeared before the committee, and any relevant documents, evidence, or other information provided to the committee. The report may also include a transcript of the hearing. The report shall not include any vote or recommendation as to termination from the committee.

   Upon receipt of the hearing committee’s report, the chancellor shall provide the opportunity for written argument by the parties and may provide the parties an opportunity to present oral argument. After considering the hearing committee’s report [and] any arguments of the parties, the chancellor will determine whether Adequate Cause for Misconduct has been established and whether termination is the appropriate sanction.

   If the chancellor concludes that Adequate Cause for Misconduct has not been established, the chancellor shall provide the faculty member with written notice of the conclusion (with a copy to the hearing committee, provost, dean, and department head) and shall include in the notice any further instructions regarding the matter as may be necessary.

   If the chancellor concludes that Adequate Cause for Misconduct has been established but that a sanction other than termination should be imposed, including without limitation suspension without pay, the chancellor may impose the lesser sanction by written notice to the faculty member (with a copy to the hearing committee, provost, dean, and department head). The notice shall include the date on which the sanction will become effective. The decision of the chancellor shall be final and not appealable to the president.

   If the chancellor concludes that Adequate Cause for Misconduct has been established and that termination is the appropriate sanction, the chancellor shall provide the faculty member with a written notice stating the grounds (with a copy to the hearing committee, provost, dean, and department head). The notice may include or adopt the written report of the hearing committee if applicable to the chancellor’s decision. The decision of the chancellor shall be final and not appealable to the president.

   If the chancellor’s determination after an ad hoc hearing committee proceeding is favorable to the faculty member and concludes both that the faculty member’s employment should not have been terminated for Misconduct and/or that the faculty member should not have been suspended without pay pending the proceedings, then full restitution of salary, academic position and tenure lost during the suspension without pay will be made.

2. Post-Termination Hearing under TUAPA

   Contested Case Procedures: If the faculty member makes a timely election to contest the charge(s) under the Tennessee Uniform Administrative Procedures Act (TUAPA), the chancellor shall appoint an administrative judge, the faculty member’s employment will be terminated on the date specified in the notice provided under Section 3.12.2.4-C.2., and the matter shall proceed post-termination in accordance with the contested case procedures promulgated by the university under the TUAPA. The TUAPA contested case procedures are published in the Compiled Rules and Regulations of the State of Tennessee, Tenn. Comp. R. & Regs. § 1720-1-5.

   1. Initial Order: In accordance with the TUAPA contested case procedures, upon completion of the hearing, the administrative judge shall render an initial order, which either party may appeal to the chancellor within 15 calendar days. In addition, the chancellor, on the [chancellor’s faculty member’s] own motion, may elect within fifteen calendar days to review the hearing officer’s initial order.
   2. Final Order: The administrative judge’s initial order shall become the final order unless review is sought by either party or the chancellor within the fifteen-day period. If review is sought, the chancellor shall review the initial order and issue a final order in accordance with applicable provisions of the TUAPA contested case procedures. The final order, whether rendered by the chancellor or by virtue of neither party appealing the initial order, shall be the final decision on the charge(s) within the university. If the university’s final order is favorable to the faculty member and concludes that the faculty member’s employment should not have been terminated for Adequate Cause, then full restitution of salary, academic position and tenure lost during the termination will be made.
   3. Judicial Review: If the final order is unfavorable to the faculty member, he or she is entitled to judicial review of the final order in accordance with applicable provisions of the Tennessee Uniform Administrative Procedures Act.