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.