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University of Maryland, College Park Procedures for the Termination of Faculty Appointments During Fiscal Crisis

Consolidated USM and UMD Policies and Procedures

II-8.00(B) UNIVERSITY OF MARYLAND AT COLLEGE PARK PROCEDURES FOR THE TERMINATION OF FACULTY APPOINTMENTS DURING FISCAL CRISIS

(Approved by the President, February 6, 1995)

	These procedures are designed to provide for the orderly
  reduction in staffing during fiscal crisis and are not intended
  to be utilized in connection with routine academic planning and
  reorganization activities.  It is expressly recognized that the
  award and continued enjoyment of tenured faculty status is a
  matter of vital importance to the academic well-being of the
  University.
 
  Section I.  Existing System Policy
 
       The University of Maryland System Policy on Appointment,
  Rank, and Tenure of Faculty states that the institution may
  terminate any appointment because of:
 
       1. [T]he discontinuance of the department, program,
  school or unit in which the appointment was made'; or
 
       2. [T]he lack of appropriations or other funds with which
            to support the appointment.'
 
       The University of Maryland System Administration has
  required that the following language appear in each institution's
  policy concerning termination of faculty appointments.  Nothing
  in the following list of items is inconsistent with the other
  sections of this document; however, the mandated language of this
  section will prevail in the event of an apparent or real conflict
  with provisions elsewhere in this document.  If termination of
  faculty appointments becomes necessary, the University of
  Maryland at College Park will adhere both to the provisions in
  this section as well as the procedures set forth elsewhere in
  this document.
 
  1. Definition of Retrenchment
 
       The term "retrenchment" means the termination of a faculty
  appointment as authorized in the November 29, 1990, University of
  Maryland System (UMS) Board of Regents Policy on Faculty
  Retrenchment (II-8.00).
 
  2. Application
 
       These retrenchment procedures are applicable only to all
  persons appointed to a rank identified or permitted under the UMS
  Policy on the Appointment, Rank and Tenure of Faculty (II-1.00)
  of the UMS By-Laws, Policies and Procedures of the Board of
  Regents.
 
       The UMS Retrenchment Policy and these retrenchment
  procedures are in addition to and not in limitation of other UMS
  and the University of Maryland at College Park policies and
  procedures concerning faculty appointments nor are they in
  limitation of any UMS or University of Maryland at College Park
  policies on academic program review.
 
  3. Initiation of Retrenchment
 
       The President has the sole authority within the University
  of Maryland at College Park, subject to the authority of the
  Board of Regents, to initiate retrenchment.  The President shall
  initiate retrenchment when the President determines that
  retrenchment is necessary, consistent with the UMS and the
  University of Maryland at College Park policies on Appointment,
  Rank and Tenure.  Before determining that a fiscal crisis
  necessitates retrenchment, the President shall consult with the
  Chancellor and the Board of Regents.  The Board may request
  relevant information from the President and may consider comments
  from representatives of campus and faculty governance bodies and
  other interested persons.
 
       Program review is a part of routine institution planning.
  While such reviews may be motivated in part by broad financial
  considerations, they normally occur as part of the ongoing
  management of the institution.  Resulting program eliminations
  provide a basis for faculty terminations without the necessity of
  showing a lack of appropriations.  Where the lack of
  appropriations is the basis for faculty retrenchment, the
  retrenchment plan may take into consideration such non-financial
  factors as institutional mission, long-range educational
  planning, and may call for program reductions and/or program
  eliminations.  A lack of appropriations exists when, in the
  President's judgment, there is a fiscal crisis that threatens or
  endangers the institution's ability to carry out its mission as
  defined in the most recent mission statement approved by the
  Board of Regents and the termination of tenured or tenure-track
  faculty appointments will be substantially less detrimental to
  the institution's ability to fulfill its mission than other forms
  of budgetary curtailments available to the institution.
 
  4. Confidentiality
 
       Consistent with applicable law, deliberations about specific
  personnel decisions of any committee shall be confidential.
 
  5. Authority of the President
 
       The President has final authority over any decision or
  determination under retrenchment procedures.  In addition to the
  advice of the committees established under retrenchment
  procedures, the President may seek the advice of any individual,
  group, or office within the University of Maryland at College
  Park or outside the institution.  The President may adopt
  recommendations from any committee identified in the retrenchment
  procedures, adopt them with modifications, or reject them and
  make substitutions for them.
 
       The President shall have the right to adjust any schedule
  referenced in the retrenchment procedures except for those
  pertaining to the notice for termination an to the appeal
  process.  An effort will be made to give advance notice of any
  such adjustment.  Failure to comply with such schedules, however,
  shall not be grounds for appeal under these retrenchment
  procedures.
 
  6. Notice Period for Termination
 
       For the purpose of these retrenchment procedures, the
  applicable termination notice period is determined by the status
  of the faculty at the time the notice of termination is given.
 
       Non-tenured track faculty, as defined in the University of
  Maryland System Policy on Appointment, Rank and Tenure of
  Faculty, shall be given written notice of up to one year but not
  less than 30 days prior to the date of termination of
  appointment.
 
       Non-tenured, tenure-track faculty shall be given notice of
  termination not less than one year prior to the date of
  termination of appointment.
 
       Full-time instructors or lecturers, with seven or more years
  of continuous service to the institution, commencing July 1,
  1984, shall be given written notice of termination of at least
  one year prior to the date of termination of appointment.
 
       Tenured faculty members shall be given notice as set forth
  in University of Maryland System Policy on Appointment, Rank and
  Tenure of Faculty, Section I.C.9. or corresponding sections of
  earlier faculty appointment agreements still in effect, as
  applicable.
 
       Notice of termination shall be effective on the date the
  notice is mailed by U.S. certified or registered mail, return
  receipt requested, to the last address that the terminated
  faculty member has on record with the University of Maryland at
  College Park.
 
       An institution shall offer within three years to a tenured
  or tenure-track faculty member whose appointment was terminated
  pursuant to these retrenchment procedures any new positions with
  equivalent duties and responsibilities within the retrenchment
  unit prior to hiring any other person.
 
  7. Language of Exception for the Order of Retrenchment
 
       Deviations from the order of termination may be made only
  when the termination of the appointment of the faculty member
  would significantly impede the ability of the institution or
  retrenchment unit affected by retrenchment to fulfill its mission
  and goals, or to fulfill commitments under grants and contracts.
 
       The reason and basis for making a decision to deviate from
  the order of termination shall be adequately documented.
 
  8. Appeal Process
 
       The President shall establish a retrenchment appeals
  committee pursuant to UMS BOR Policy on Faculty Retrenchment
  (November 29, 1990, II-8.00).  A faculty member whose appointment
  is terminated under these retrenchment procedures shall have a
  right to appeal in accordance only with these procedures.  No
  other appeal procedures within the University of Maryland at
  College Park are applicable.
 
       The faculty member must include all grounds for appeal in
  the written request for appeal.
 
       The filing or consideration of a request for appeal will not
  alter the effective date of termination of the appointment.
 
       Appeal Schedule
 
       a. A request for appeal must be filed with the President
          within 10 working days after the effective mailing date
          of the notice of termination.
 
       b. The committee shall inform the faculty member of the
          date, time, and place of the hearing no later than 10
          working days after the President's receipt of the
          request for appeal.  The committee must schedule the
          hearing to occur within 30-45 calendar days after the
          President's receipt of the appeal.
 
       c. The faculty member must provide to the committee a
          statement of facts on which the appeal is based and a
          list of witnesses and documents to be introduced at the
          hearing no later than five working days prior to the
          date of the hearing.
 
       d. The committee shall send its recommendation to the
          President no later than 10 working days after the date
          of the conclusion of the hearing.
 
       e. Within 10 working days after receipt of the committee's
          recommendation, the President shall issue a final
          decision and mail to the faculty member by U.S.
          certified or registered mail, return receipt requested.
 
       Grounds for Appeal
 
       The grounds for appeal shall be limited to:
 
 
       a.   error in the application of the order of termination of
  appointment;
 
       b.   procedural error;
 
       c.   insufficiency of notice of termination;
 
       d.   whether any deviation from the order of termination was
            made without reasonable grounds; and
 
       e.   the termination was otherwise unlawful.
 
       Conduct of the Hearing
 
       The institution will be represented by the Office of the
       Attorney General or its designee.
 
       The faculty member may be represented by legal counsel
       throughout the appeal proceedings at the faculty member's
       expense.
 
       The hearing shall be audiotaped and a copy of the tape shall
       be made available if requested by the faculty member.
 
       The faculty member and the institution each may call
       witnesses and present documentary evidence at the hearing.
       Each member of the committee may call and question witnesses
       and request the presentation of documentary evidence.
 
       The formal rules of evidence and of judicial procedure shall
       not apply to the appeal hearing; however, the committee may
       exclude irrelevant or repetitious testimony.
 
       The faculty member's failure to appear at the hearing shall
       be deemed a voluntary dismissal of the appeal.
 
       The appeal committee must make the decision based on the
       record.
 
       Postponement of the hearing may be granted at the discretion
       of the committee upon the written request of the faculty
       member.
 
  9.   Notification of Termination
 
            The President shall give a written notice of
       termination to each faculty member whose appointment is to
       be terminated pursuant to these retrenchment procedures.
       The termination notice shall include:
 
       a.   notification that the appointment is being terminated
            pursuant to these retrenchment procedures;
 
       b.   the applicable notice period;
 
       c.   the effective date of termination;
 
       d.   the statement that System Administration shall send,
            for a period of one year, written notice of faculty
            openings within the System to the last address that the
            faculty member has on record with the institution;
 
       e.   notification of the right of the faculty member to
            appeal the termination of appointment and a copy of
            these retrenchment procedures;
 
       f.   if applicable, a statement that deviation was made from
            the order of termination and the circumstances of the
            deviation.
 
                 Section II.  Existing Campus Policy
 

       The policy University of Maryland at College Park Procedures
  for Reduction, Consolidation, Transfer or Discontinuance of
  Programs (Policy II-8.00(A), adopted April 30, 1991) describes
  the manner in which appointments may be terminated pursuant to
  System Policy in Section I (1) above.  That policy dictates the
  procedure for routine academic planning and reorganization.  The
  following provisions establish the manner in which faculty
  appointments may be terminated due to "the lack of appropriations
  or other funds" (Section I (2)) and may be employed only during a
  period of declared fiscal crisis.
 
  Section III.  Procedures and Guidelines for Reduction in Staffing
  within Programs
 
       In order to implement the procedures in this document, the
  President must make an official determination and declaration of
  fiscal crisis for the University of Maryland at College Park.  As
  defined in Section I.3., a fiscal crisis may be declared if a
  lack of appropriations threatens or endangers the institution's
  ability to carry out its mission as defined in the most recent
  mission statement approved by the Board of Regents, and the
  termination of tenured or tenure-track faculty appointments will
  be substantially less detrimental to the institution's ability to
  fulfill its mission than other forms of budgetary curtailments
  available to the institution.  A state of fiscal crisis is

  effective through the end of each fiscal year, and the President
  must issue a new declaration for subsequent fiscal years as
  necessary.
 
       The President, acting in consultation with the Executive
  Committee of the College Park Senate, shall make such a
  declaration only after determining that other operating and
  administrative economies are insufficient to avoid a fiscal
  crisis.  Such economies should include the consolidation or
  discontinuance of certain academic units (i.e., schools,
  colleges, departments, or programs) and a campus-wide program of
  retirement incentives.
 
       For the purposes of this document, an academic "unit" shall
  be defined as a "tenure-granting" academic entity or other
  academic entity on campus that does not confer tenure but does
  appoint teaching and research faculty, such as, Maryland Fire and
  Rescue Institute.  A non-departmentalized college shall be
  considered a single unit.  The procedures in its document apply
  only to units and individuals funded with Maryland state monies.
 
       After declaring a state of fiscal crisis, the President
  shall direct the at the following measures be taken:
 
       1.   The Provost, in consultation with the President, the
            Equity Administrator in the Office of the Provost, and
            a sub-committee of the Academic Planning Advisory
            Committee (APAC), as constituted by APAC, shall prepare
            a list of schools, colleges, departments, programs, or
            other academic units where a reduction of the number of
            occupied faculty positions should occur.  The
            submission will specify the exact number of occupied
            faculty positions to be terminated.
 
       2.   APAC will evaluate the proposal submitted by the
            Provost and make its own recommendations to the
            Provost, modifying as it deems appropriate the list of
            units where occupied faculty positions are to be
            eliminated.  It shall recommend to the Provost a list
            of units where reductions are to be made, and specify
            the exact number of positions to be eliminated in each
            unit.
 
       3.   APAC's evaluation and recommendation shall, where
            relevant, be based on the following considerations,
            which are not listed in any order of priority or
            preference:
 
            a.   The centrality of each unit to the mission of the
                 institution or to the mission of the college,
                 school, or department in which it is located;
 
            b.   The academic strength or quality of the unit as
                 well as the quality of its faculty as indicated by
                 national rankings or other available measures as
                 appropriate in each program;
 
            c.   The complementarity of the unit and the work done
                 therein to some essential program or function
                 performed in this institution;
 
            d.   The duplication of work done in the unit by work
                 done elsewhere within the University of Maryland
                 System;
 
            e.   The student demand and projected enrollment in the
                 subject matter taught in the unit;
 
            f.   The student-to-faculty ratio in the unit;
 
            g.   The comparative cost analysis/effectiveness of the
                 unit;
 
            h.   Any potential impact on equity that the proposed
                 number of terminations would have on a unit,
                 department, or college;
 
            I.   Such other factors as APAC may deem proper and
                 relevant.
 
 
 
       4.   Before reaching its final conclusions and forwarding
            its recommendations to the Provost, APAC will invite
            the administration and faculty of each unit for which
            elimination of occupied faculty positions is being
            either proposed or considered to meet with it to
            discuss any proposed reductions or other possible
            reductions currently under consideration by APAC.
            Information available to APAC during its deliberations
            will be shared with the unit in advance of this
            meeting.  APAC will also schedule an open meeting at
            which other interested parties may be heard.
 
       5.   APAC will undertake to make its report and
            recommendations to the Provost within 60 calendar days
            of receipt of the President's initial list of units
            where the number of occupied positions is to be
            reduced.
 
       6.   The Provost will provide a copy of the APAC report and
            recommendations, together with the Provost's own
            recommendations, to the President.
 
       7.   Prior to taking action, the President will provide
            copies of the APAC report and Provost's recommendations
            to the Executive Committee of the College Park Senate.
            The Executive Committee will undertake such review and
            submit such comments to the President as it deems
            appropriate.  It will undertake to complete its review
            and submit its comments to the President within 30 days
            of receipt of the APAC report and recommendations.
 
       8.   Upon consideration of the report and recommendations of
            APAC, the Provost, and such comments as the Executive
            Committee of the Senate may submit, the President will
            inform the unit through the Provost and relevant
            college dean of the number of occupied faculty
            positions to be eliminated.
 
   Section IV.  Procedures and Guidelines for the Identification of
  Specific
                      Positions to be Eliminated
 
       When the President determines, in accordance with Section
  III, that faculty appointments must be terminated, specific
  appointments shall be identified for termination as follows:
 
       1.   Initially, special incentives to encourage retirement
            shall be offered to faculty in targeted units who
            qualify by virtue of age and/or time in service.
 
       2.   If too few faculty retirements result from the
            incentives in Paragraph IV.1, the Dean of a school or
            college in which terminations have been proposed, in
            consultation with the chair of any affected unit and
            its established advisory faculty body, shall propose a
            list of faculty appointments to be terminated.  This
            proposal shall be made in accordance with Paragraphs
            IV.3. and 5. below.  In addition, the Dean, in
            consultation with the chair and unit faculty advisory
            body, may establish additional criteria not
            inconsistent with Paragraphs IV.3. and 5.  In
            non-departmentalized colleges, the Dean shall consult with
            the appropriate faculty advisory body.  The Dean shall
            report to the Provost the names and the manner in which
            they were determined.
 
       3.   Within a unit, faculty appointments shall be
            recommended for termination in the following order:
 
            a.   temporary appointments, regardless of rank or
                 length of service;
 
            b.   annual appointments, except lecturers and
                 instructors with seven or more years of continuous
                 full-time service, regardless of other
                 considerations of rank or length of service;
 
            c.   lecturers and instructors with seven or more years
                 of continuous full-time service, regardless of
                 other considerations of rank or length of service;
 
            d.   untenured tenure-track faculty, regardless of rank
                 or length of service;
 
            e.   tenured faculty in reverse order of rank and
                 within rank in reverse order of seniority.
 
            Seniority shall be based on the length of continuous
            full-time service at the University of Maryland at
            College Park in a tenured or tenure-track position
            (including approved leaves of absence without pay and
            sabbatical leaves).  If two persons in the same rank
            have the same length of continuous full-time service,
            then seniority shall be determined by the length of
            continuous full-time service in that rank.  If two or
            more persons in the same rank have the same length of
            continuous full-time total service and continuous
            full-time service in rank, then the dean, in consultation
            with the unit's chair and faculty advisory body, may
            apply additional criteria (as specified in IV.2) to
            determine the order of termination.  Faculty with joint
            appointments in two or more units shall have their
            seniority calculated in the unit which has
            responsibility for tenure or the tenure recommendation.
 
       4.   The Provost shall review the report of the Dean and
            shall obtain an equity impact assessment from the
            Equity Administrator in the Office of the Provost.
            These shall be submitted, together with the Provost's
            own recommendations, to the President.
 
       5.   A faculty member may be exempted from termination of
            appointment if to do otherwise would jeopardize the
            affected unit's essential curricula or seriously
            distort its program.  Before making such a
            recommendation to the Provost, the Dean of the unit
            shall obtain the advice of the elected faculty members
            of the Faculty Advisory Committee.  The Dean and the
            Faculty Advisory Committee shall forward separate
            recommendations to th Provost, who shall consult with
            the APAC before making a final recommendation to the
            President.
 
       6.   Based on the recommendations of both the Deans and
            Provost, the President shall designate the appointments
            to be terminated and shall provide written notification
            to the faculty members of the termination dates of
            their appointments.  The President shall report all
            final termination actions to appropriate committees and
            administrative units.
 
       7.   Lecturers and instructors with seven or more years of
            continuous full-time service shall receive at least one
            year's notice of termination of their appointments.
            Tenure-track faculty shall receive at least one year's
            notice, and faculty with tenure shall receive at least
            one year's notice.  Along with the notice of
            termination, the faculty member shall receive copies of
            the Dean's report, the Faculty Advisory Committee's
            report (if applicable), the Provost's recommendation,
            and the equity impact statement.
 
       8.   During a declared period of fiscal crisis, a unit that
            has suffered a reduction in the number of its occupied
            positions may replace any losses of occupied positions,
            (e.g., through resignation, retirement or death) in
            excess of those stipulated by the President in
            Paragraph III.8 if, in the judgment of the Provost, to
            do otherwise would jeopardize its curricula or
            seriously distort its program.  Before making a
            recommendation to the Provost, the Dean of the unit
            shall obtain the advice of the elected faculty members
            of the Faculty Advisory Committee (as specified in the
            proposed Plan of Organization for the Campus
            Community).  The Dean and the Faculty Advisory
            Committee shall forward separate recommendations to the
            Provost, who shall consult with the APAC before
            authorizing a new appointment.  If a new appointment is
            authorized, the Provost will not permit an open search
            for candidates without first offering reappointment to
            all tenured faculty in the unit whose appointments had
            been previously terminated under the terms of this
            policy.  Those faculty members shall be offered
            reappointment in order of seniority as specified in
            IV.3.
 
       9.   For a period of six years after a state of fiscal
            crisis has been lifted, no losses of occupied positions
            (e.g., through resignation, retirement or death) in
            excess of those stipulated by the President in
            paragraph III.8 may be replaced without first offering
            reappointment to all former tenured faculty whose
            appointments within the unit had been terminated under
            the terms of this policy.  Those faculty members shall
            be offered reappointment in order of seniority as
            specified in IV.3.
 
       10.  For a period of six years after a state of fiscal
            crisis has been lifted, additional faculty positions
            may not be created within a unit that has suffered a
            reduction in the number of its positions without first
            offering reappointment to all former tenured faculty
            members whose appointments within the unit had been
            terminated during that state of fiscal crisis under the
            terms of this policy.  Those faculty members shall be
            offered reappointment in order of seniority as
            specified in IV.3.
 
       11.  Faculty who have been terminated under the terms of
            this policy and are rehired under the provisions of
            sections IV.8-10 above shall regain the tenure status
            and length of service they possessed at the time of
            termination.  Specifically, faculty with tenure at the
            time of termination shall regain both tenure and years
            of service; untenured tenure-track faculty shall regain
            years of service.  Lecturers and instructors with seven
            or more years of continuous full-time service shall
            regain contractual employment protection and years of
            continuous service; lecturers and instructors with
            fewer than seven years of continuous full-time service
            shall regain years of continuous service.
 
                  Section V.  Provisions for Appeal
 
       1.   A faculty member whose appointment has been terminated
            under the provisions of Sections I-IV above may appeal
            to the President.  The appellant shall have the right
            to request copies of the documents specified in IV.7.
            The appeal shall be made in writing and received by the
            President within 10 working days from the effective
            mailing date of the President's letter notifying the
            faculty member of the termination of his or her
            appointment.  Late filing of the appeal with reasonable
            justification shall be permitted.  The filing and
            consideration of an appeal does not stay the effective
            date of termination.
 
       2.   The President shall submit the appeal to the Fiscal
            Crisis Appeals Committee for review and recommendation.
            Members of the Fiscal Crisis Appeals Committee shall be
            elected for the duration of the fiscal crisis by the
            elected faculty members of the Executive Committee of
            the College Park Senate; the President shall designate
            half of those elected by the Executive Committee as
            Presidential appointees.  Members of the Fiscal Crisis
            Appeals Committee shall be elected from among the
            tenured full professors not involved in administrative
            duties.
 
       3.   There shall be three grounds for appeal:
 
            a.   violation of procedural due process;
 
            b.   violation of substantive due process;
 
            c.   an error in the application of the criteria and
                 provisions set forth in this policy.
 
            Violation of procedural due process means that the
            decision was reached following a failure by those in
            the review process to take a procedural step or to
            fulfill a procedural requirement established in this
            policy.
 
            Violation of substantive due process means that: (1)
            the decision was based upon an illegal or
            constitutionally impermissible consideration: e.g.,
            upon a person's gender, sexual orientation, race, age,
            nationality, disability, or on a person's exercise of
            protected first amendment freedoms (e.g., freedom of
            speech); or (2) the decision was arbitrary or
            capricious, i.e., it was based on erroneous information
            or misinterpretation of information, or the decision
            was clearly inconsistent with the supporting materials.
 
       4.   An appeal shall not be granted unless the alleged
            grounds for appeal are demonstrated by a preponderance
            of the evidence.
 
       5.   The President's declaration of fiscal crisis and the
            determination of the units in which reductions are to
            be made are not grounds for appeal.
 
       6.   The Fiscal Crisis Appeals Committee will have made
            available to it such documents and information as it
            believes may be relevant to the appeal.  The Committee
            may invite such persons, including the faculty member,
            Dean, and department Chair, as it believes may be
            helpful to meet with it.  The appellant shall have the
            right to meet with the Committee, and shall have the
            right to legal counsel during that meeting.  The appeal
            is a deliberative review and should not take the form
            of an adversarial process.
 
       7.   The Committee shall submit written findings and
            recommendations to the President.  The President shall
            render a written decision no later than 60 calendar
            days from the date of the appeal.  The decision of the
            President shall be final.