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10.02      Appeals Other than Denial of Tenure 

A.                  After exhausting all appeals within the institution, a student or employee (“Appellant”) may appeal only by filing a written notice of appeal.  The notice of appeal must be filed within twenty (20) days of the date of the final institutional action.  The notice of appeal is filed when it is received by fax or in hard copy by the close of business at the office of the institutional head.  

1.      The notice of appeal must identify the following information: 

a)      The Appellant(s);

b)      The decision or order from which appeal is taken;

c)      The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;

d)      The relief sought;

e)      The grounds for relief; and

f)        If a stay or suspension of final action is requested, the nature and reasons for such request. 

2.      The Appellant must state all issues supporting the appeal in the notice of appeal.  Failure to state an issue in the notice of appeal shall serve as a waiver of that issue on appeal. 

3.      The Appellant may not raise an issue or argument before the Board of Regents that was not previously raised or presented to the institution. 

B.                 Suspension of Pending Action. A request to stay or suspend institutional action must be included in the notice of appeal or it is waived.  The filing of a notice of appeal shall not result in an automatic stay or suspension of the final institutional action.  Affirmative written approval by the Executive Director is required to stay or suspend the action.  If the Appellant has requested a stay or suspension of final action, the institution shall have seven (7) days after receipt of the notice of appeal to submit a response to the request.  The response shall be delivered by the institution to the Board of Regents General Counsel and the Appellant. 

C.                 The institutional head shall deliver the notice of appeal, the record (as defined below), along with a concise written response to the notice of appeal to the Board of Regents General Counsel no later than twenty (20) days after the receipt of the notice of appeal by the institutional head.  The institutional head shall also send a copy of the record and the institution’s written response to the notice of appeal to the Appellant, or to the Appellant’s counsel. 

1.      The record shall include: 

a)      Copies of institutional policies and procedures relevant to the appeal;

b)      All official communications between the institution and the Appellant relevant to the appeal, including prior official decisions and recommendations;

c)      The statement of charges or complaint documents provided to the Appellant, if applicable;

d)      A tape recording or written transcript of the hearing if available;

e)      Copies of all exhibits received by the hearing officer, board of review or institutional head;

f)        The written recommendations of the hearing officer or board of review;

g)      Any additional, non-privileged material considered by the institutional decision-maker in making the decision; and

h)      The written decision of the final institutional decision-maker. 

2.      Within ten (10) days of the date the record is sent, the Appellant may object to the record submitted by the institution.

a)      Such objection shall be in writing addressed to the Board of Regents, General Counsel, with a copy provided to the institution, and shall specify each specific objection to the record. 

b)      If the hearing was recorded but no transcript of the hearing has been made, either party may request that a transcript be prepared. 

(i)      If such a request is made, a transcript will be prepared and a copy provided to each party at the expense of the party requesting the transcript unless alternative arrangements have been made for adequate cause;

(ii)    The Board Office reserves the right to request that a transcript be prepared at the expense of the institution. 

c)      If the Appellant desires to supplement the record, he or she must at the same time identify the documents or information to be supplemented and explain the reason the Appellant believes the document or information should be included in the record. 

d)      The institution shall have ten (10) days to respond.  The response shall be delivered to the Appellant by the institution.

e)      The Board will not consider new or additional evidence or information that was available but not presented in any hearings or appeals at the institution. 

3.      The time limits specified in this subsection may be extended at the discretion of the Executive Director.  The Executive Director will notify, in writing, each of the parties of any change to the time limits. 

D.        Written Arguments by the Parties 

1.      Within twenty (20) days of the date the record is sent, the Appellant shall file a memorandum in support of the appeal.  The memorandum is filed when it is received by the Board of Regents General Counsel.  The memorandum must be signed by the Appellant, or by the Appellant’s counsel. Factual allegations must include specific references to the record at the institutional level.  New factual material and new issues not a part of that record will not be considered on appeal to the Board.   

2.      The Appellant shall send a copy of the Appellant’s memorandum to the institutional head.  The institutional head or designee shall file a written response with the Board of Regents General Counsel no later than twenty (20) days from the institutional head’s receipt of the Appellant’s memorandum.  Factual allegations must include specific references to the record at the institutional level.  New factual material and new issues not a part of that record will not be considered on appeal to the Board.  The institutional head or designee shall send a copy of the institution’s response to the Appellant or to the Appellant’s counsel.  

3.      No further written arguments will be accepted from either party unless requested or approved by the Executive Director. 

4.      If either party desires oral argument before the Board, the party shall make such a request in a separate document attached to the written argument.  Oral argument shall be discretionary with the Executive Director. 

E.                 The Appellant shall have the burden of proof on the appeal.  The Appellant must show by a preponderance of the evidence that the institution’s final decision was: 

1.      Not supported by substantial evidence in the record; 

2.      Arbitrary and capricious; or 

3.      Unconstitutional or otherwise contrary to law, including procedural irregularities or deficiencies materially prejudicial to the Appellant. 

F.                  Following the review, the Board may affirm, modify, remand, or reverse all or any part of the order or decision of the institution. The Board shall give due regard to the fact finder’s opportunity to observe witnesses and parties.  The decision of the Board represents final agency action.  The Appellant may seek judicial review as permitted by law.