Section 478-120-115. Formal hearings before the faculty appeal board.

(1) The faculty appeal board shall conduct a formal hearing when exceptional circumstances exist and a request for a formal hearing has been made. The faculty appeal board shall also conduct formal hearings as provided in the supplemental provisions for cases involving an allegation of sexual misconduct set forth in WAC 478-120-137. Additionally, the faculty appeal board may conduct a formal hearing in other circumstances as the board deems appropriate.

(2) Within thirty days after receipt of a written petition for a formal hearing before the faculty appeal board, the board shall notify the requesting party of any obvious errors or omissions in the party's petition, request any additional information the board wishes to obtain and is permitted by law to require, and notify the requesting party of the name, mailing address, and telephone number of an office or person who may be contacted regarding the formal hearing.

(3) Within ninety days after receipt of a written petition for formal hearing or within ninety days after the party's response to a timely request from the board as provided in subsection (2) of this section, the board shall either deny the formal hearing or commence the formal hearing.

(4) Once the board decides to conduct a formal hearing, the chair of the faculty appeal board shall schedule the time and place of the hearing and give not less than seven days advance written notice of the hearing to all parties. That notice shall include:

(a) The names and addresses of all parties to whom notice is being given, and if known, the names and addresses of their representatives;

(b) The name, business address, and telephone number of the person designated to represent the university at the hearing;

(c) The official file number and name of the proceeding;

(d) The name, mailing address, and telephone number of the chair of the faculty appeal board;

(e) A statement of the time, place, and nature of the hearing;

(f) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(g) A reference to the particular sections of university rules that are involved;

(h) A short and plain statement of the charges against the respondent; and

(i) A statement that a student requesting the hearing who fails to attend the hearing or otherwise respond to this notice may lose his or her right to a formal hearing.

(5) Hearings before the faculty appeal board shall be conducted in accordance with the provisions of this conduct code, the Administrative Procedure Act (chapter 34.05 RCW), and the model rules of procedure (chapter 10-08 WAC). To the extent there is a conflict between the conduct code and the model rules, this conduct code shall control.

(6) The faculty appeal board will make its own determination based on the record of the hearing before the faculty appeal board.

(7) If a student requesting the hearing fails to attend or participate in a formal hearing, the faculty appeal board may:

(a) Hold the hearing and issue an initial order based on a preponderance of evidence presented at the hearing; or

(b) Issue a default or other dispositive order which shall include a statement of the grounds for the order. Within seven days after service of a default order or other dispositive order, a student may file a written request that the order be vacated, and stating the grounds relied upon.

(8) Each party may be represented by an attorney and/or be accompanied by an advisor of that party's choice. No student shall be compelled to give self-incriminating evidence. However, a negative inference can be drawn from a refusal to testify or to answer a particular question.

(9) The chair shall determine whether discovery is to be available, and, if so, which forms of discovery may be used. The chair may condition the use of discovery procedures on a showing of necessity and unavailability by other means. In exercising such discretion, the chair shall consider:

(a) Whether all parties are represented by counsel;

(b) Whether undue expense or delay in bringing the case to a hearing will result;

(c) Whether the use of discovery will promote the orderly and prompt conduct of the proceeding; and

(d) Whether the interests of justice will be promoted.

(e) The chair may decide whether to permit the taking of depositions, the requesting of admissions, or any other procedures authorized by rules 26 through 37 of the superior court rules.

(10) At appropriate stages of the hearing, the chair may give all parties an opportunity to submit and respond to briefs, motions, proposed findings of fact and conclusions of law, and proposed initial or final orders. To the extent necessary for a full disclosure of all relevant facts and issues, the chair shall afford the parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence. A party filing a pleading, brief, or other documents with the chair shall serve copies on all other parties at the same time submitted to the chair.

(11) Evidence, including hearsay evidence, is admissible if it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Evidence is not admissible if it is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state. The chair shall decide all procedural questions and make rulings on the admissibility of evidence, motions, objections, and on challenges to the impartiality of board members, unless a hearing examiner is appointed as provided below. The Washington rules of evidence shall serve as guidelines for those rulings on the admissibility of evidence.

(12) All testimony of parties and witnesses shall be made under oath or affirmation. The parties are responsible for informing their witnesses of the time and place of the hearing.

(13) At the discretion of the chair, and where the rights of the parties will not be prejudiced thereby, all or part of any hearing, including the testimony of witnesses, may be conducted by telephone, video, or other electronic means. Each party in the hearing must have an opportunity to participate effectively in, to hear, and if technically and economically feasible, to see the entire proceeding while it is taking place. Such measures may be taken to accommodate concerns raised by a complainant, a respondent, or any witness.

(14) The faculty appeal board may appoint a hearing examiner to conduct the actual hearing, which includes managing administrative matters before, during, and following a hearing, and ruling on any motions, objections, procedural questions, and the admissibility of evidence. The decision to use a hearing examiner requires the approval of a majority of the board members. The hearing examiner will then conduct the hearing and if requested by the board, will submit a detailed report to the faculty appeal board according to the provisions of this section.

(a) The hearing examiner will have all the authority of the chair of the faculty appeal board with regard to hearing procedures and will be responsible for maintaining the official record of the hearing, including an audio or video recording of the hearing, and transmitting the full official record to the chair following the hearing.

(b) The faculty appeal board may, at its option, request the hearing examiner to provide recommendations as to findings, conclusions, and decisions, but those recommendations shall not be binding on the board. The board shall make its own findings, conclusions, and decisions based on the official record.

(c) The hearing examiner must be an attorney permitted to practice law in Washington state. Any member of the faculty appeal board who is also a member of the Washington state bar, including the chair, may serve as the hearing examiner.

(15) The chair of the faculty appeal board may issue subpoenas and enter protective orders. A party may request in writing that the chair issue a subpoena for the attendance of a witness at the hearing. The requesting party is responsible for serving the subpoena upon the witness.

(16) All communications with the chair and/or members of the faculty appeal board, except for communications necessary to procedural aspects of maintaining an orderly process, must be in the presence of, or with a copy to, all other parties. Ex parte communications received by the chair or members of the board must be placed on the record, and all other parties must be informed of the ex parte communication and given an opportunity to respond on the record.

(17) At the conclusion of a hearing, and following the submission of all evidence, any written closing arguments, and any proposed orders by the parties, the board shall determine, whether based on a preponderance of the evidence, the respondent is responsible for violating this conduct code and, if so, what sanction(s) are to be imposed. The faculty appeal board shall have the full authority to impose any of the sanctions specified in WAC 478-120-040, subject to review in accordance with this conduct code. (All orders of dismissal are subject to review by the president in accordance with WAC 478-120-125.) Decisions will be determined by majority vote. Findings, conclusions, and decisions by the faculty appeal board shall be based exclusively on the evidence of record from the hearing and on matters officially noted in the record.

(18) The board shall enter an initial order which shall be served in writing on all parties within sixty days after conclusion of the hearing or after submission of memos, briefs, or proposed findings, whichever is later, unless the period is waived or extended for good cause shown. The board's initial order shall:

(a) Include a statement of findings of fact and conclusions with any findings based substantially on credibility of evidence or demeanor of witnesses so identified;

(b) Specify the section(s) of this conduct code that the respondent is responsible for violating, if any;

(c) Indicate the sanction(s) imposed, if any;

(d) Provide a statement regarding the availability of presidential review and the applicable time limits; and

(e) Include a statement of the circumstances under which the board's initial order, without further notice, may become a final order.

(19) An initial order issued by the faculty appeal board will become a final order if the respondent (or a complainant in any case involving an allegation of sexual misconduct) does not submit a request for review in accordance with WAC 478-120-125 within twenty-one days of service of the initial order, except that any initial order imposing dismissal will be automatically forwarded to the president for review under WAC 478-120-125.

(20) The chair shall maintain an official record of the hearing. The record shall contain those items specified in RCW 34.05.476.

[Statutory Authority: RCW 28B.20.130 and chapter 34.05 RCW. WSR 16-05-097, § 478-120-115, filed 2/17/16, effective 3/28/16. Statutory Authority: RCW 28B.20.130 and 28B.10.900 through 28B.10.903. WSR 96-10-051, § 478-120-115, filed 4/29/96, effective 5/30/96.]

RCW 28B.20.130 and chapter 34.05 RCW. WSR 16-05-097, § 478-120-115, filed 2/17/16, effective 3/28/16. Statutory Authority: RCW 28B.20.130 and 28B.10.900 through 28B.10.903. WSR 96-10-051, § 478-120-115, filed 4/29/96, effective 5/30/96.

Rules

478-120-137,10-08,478-120-040,478-120-125,478-120-125,478-120-125,